Civil revision petition filed under Section 115 CPC dismissed. Court disposed of the petition without adjudicating on merits, preserving liberty to impeach orders of executing court and observing that impugned order observations do not hinder such proceedings.
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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 3RD DAY OF SEPTEMBER 2020
BEFORE
THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD
CIVIL REVISION PETITION NO.100010/2016
BETWEEN
ATHAULLA S/O ADAMKHAN KARALAHALLI @ MVINAKATTI AGE:69 YEARS, OCC. BUSINESS R/O WORKER GALLI NEAR AZAD MAJID RANEBENNUR, TQ. RANEBENNUR DIST. HAVERI
... PETITIONER
(BY SRI.T.M.NADAF, ADVOCATE FOR SRI.AMEERAHMED H BAGALI, SRI.AAFSHAN A SHABHASH KHAN, ADVOCATES)
AND
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AGE:52 YEARS, OCC. HOUSEHOLD WORK R/O KANWALLI TQ/DIST: HAVERI
... RESPONDENTS
(BY SRI.HARSHAVARDHAN M PATIL, ADVOCATE FOR SRI.M.H.PATIL, ADVOCATE FOR R1 (A TO F)
THIS CRP IS FILED UNDER SEC.115 OF CPC, AGAINST THE ORDER DATED:30.11.2015 PASSED IN CIVIL MISCELLANEOUS NO.19/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND PRINCIPAL JMFC., RANEBENNUR, DISMISSING THE PETITION FILED U/S. 28 OF THE SPECIFIC RELIEF ACT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The learned counsel for the petitioner and the learned counsel for the respondents have been heard.
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suit for specific performance in O.S.No.413/2002 calling in question the order dated 30th November, 2015 in Civil Misc.No.19/2015 on the file of the Principal Senior Civil Judge and Principal JMFC, Ranebennur (for short, ‘the Appellate Court’) . The Civil Misc.No.19/2015 is an application filed under Section 28 of the Specific Relief Act by the petitioner for rescission of sale agreement dated 01.07.1988. The Appellate Court has rejected this application by the impugned order dated 30th November, 2015.
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Mohammadsab Sunnakhanavar impugned the trial courts judgment in the first appeal in R.A.No.84/2006. The Appellate Court reversed the trial Courts judgment granting the relief of specific performance subject to the condition that the deceased Sri.Nabisab S/o Mohammadsab Sunnakhanavar shall deposit the balance sale consideration and obtain the sale deed within two months. The deceased Sri.Nabisab S/o Mohammadsab Sunnakhanavar did not deposit the balance sale consideration within two months and obtain the sale deed as contemplated under the decree. Therefore, the petitioner initiated the present proceedings under Section 28 of the Specific Relief Act. The Appellate Court, without considering the law on rescission of contract for non-compliance with the decree of specific performance, has rejected the petitioner’s application.
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representatives of the deceased Sri.Nabisab S/o Mohammadsab Sunnakhanavar. The learned counsel for these respondents, refuting the submissions as against the merits of the impugned order, submits that the decree of specific performance only stipulated that sale deed should be obtained within two months without any stipulation as regards deposit. In the light thereof, and the petitioner initiating the present proceedings in haste, the respondents have initiated execution proceedings in Execution Case No.25/2015. They have deposited the balance sale consideration in compliance with the terms of the decree and obtained the sale deed. The learned counsel canvasses that in the light of the subsequent events, this petition would not survive for consideration.
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would suffice, in the interest of justice, to dispose of this petition with liberty to the petitioner, subject to all just exceptions in law, to initiate appropriate proceedings to impugn/recall any order that could be made by the Executing Court in Execution Case No.25/2015 while observing that any observation made in the impugned order shall not hinder the petitioner in such proceedings on the ground of acquiescence or otherwise.
The petition is accordingly disposed of.
Sd/JUDGE
sh
2 provisions across 2 enactments
ATHAULLA S/O ADAMKHAN KARALAHALLI @ MVINAKATTI
NABISAB S/O MOHAMMADSAB SUNNAKHANANAVAR SAITH NAME OF LRS.
B.M. SHYAM PRASAD
As recorded by the court registry
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