Disposed

Shankarappa M v. Vs Sri.K.Narayanappa

Karnataka HC9 Nov 2021WP/7504/2021

Case brief

AI extract

What is this about?

High Court stayed execution proceedings pending civil court decision on recall of ex parte decree, directing expeditious disposal of the pending petition despite the executing court's rejection of a transfer section application.

What did the court decide?

Stay of further proceedings in Execution Petition No.13/2017 for 5 months; direction to Civil Court to dispose of Misc. Pet. No.11/2019 within 4 months.

Shankarappa M v Vs Sri.K.Narayanappa — Execution and Attachment | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 9^TH DAY OF NOVEMBER 2021

¶3

BEFORE

¶4

THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

¶5

WRIT PETITION NO.7504/2021(GM-CPC)

¶6

BETWEEN :

¶7

SRI.M.V.SHANKARAPPA, S/O LATE VENKATAMUNIYAPPA, AGED ABOUT 65 YEARS, OCCN: AGRICULTURIST/CONTRACT WORK, R/A NO.9, 5^TH , MODEL HOUSE STREET, T R NAGAR, BANGALORE - 560 028.

¶8

... PETITIONER

¶9

(BY SRI.RAVINDRA D.K., ADVOCATE)

¶10

AND :

¶11

SRI.K.NARAYANAPPA, S/O LATE CHANNAPPA, AGED 67 YEARS, OCCN: AGRICULTURE, R/O MALLEKUPPA VILLAGE, NANGALI POST - 563 132, BYRAKUR HOBLI, MULBAGAL TALUK.

¶12

SMT. VASANTHAMMA, W/O LATE HANUMAPPA, AGED ABOUT 62 YEARS,

¶13

¶14

SRI MANI MOHAN, S/O LATE HANUMAPPA, AGED ABOUT 37 YEARS,

¶15

SRI. M V VENKATARAMAIAH, S/O VENKATAMUNIYAPPA, AGED ABOUT 55 YEARS,

¶16

SRI. MUNIRATHNAM, S/O VENKATAMUNIYAPPA, AGED ABOUT 52 YEARS,

¶17

SRI. SADASHIVA, S/O VENKATAMUNIYAPPA, AGED ABOUT 46 YEARS,

¶18

RESPONDENT 2 TO 5 R/O MALLEKUPPA VILLAGE, NANGALI POST - 563 132, BYRAKUR HOBLI, MULBAGAL TALUK.

¶19

... RESPONDENTS

¶20

(BY SRI.G.PAPI REDDY, ADVOCATE FOR R4; NOTICE DISPENSED WITH TO R3, R5 AND R6; NOTICE HELD SUFFICIENT TO R2)

¶21

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER VIDE ANNEXURE - E, PASSED BY THE LEANRED ADDL. CIVIL JUDGE AND JMFC AT MULBAGAL IN EX.PET.NO.13/2017 ON I.A.NO.2 UNDER SECTION 10 OF CPC DATED 04.03.2021 AND STAY THE FURTHER PROCEEDINGS IN EX.PET.NO.13/2017 TILL DISPOSAL OF MISC. PET. NO.11/2019 PENDING ON THE FILE OF ADDL. CIVIL JDUGE AND JMFC, MULBAGAL, BY ALLOW THIS W.P. AND ETC.,

¶22

¶23

THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

¶24

O R D E R

¶25

The petitioner, who is one of the judgment debtors (JDR No.3) in Execution Petition No.13/2017 on the file of the Additional Civil Judge and JMFC, Mulbagal (for short, 'the executing Court'), has impugned the order dated 04.03.2021. The executing Court by this impugned order has rejected the petitioner's application under Section 10 of Code of Civil Procedure (for sort 'CPC') observing that the petitioner could not have invoked Section 10 of CPC as the said provision could be availed only when a prior suit is filed.

¶26

The learned Counsel for the petitioner submits

¶27

that contesting first respondent – the decree holder has filed a suit in O.S. No.95/2008 for specific performance against petitioner and other respondents. The civil Court has partly decreed the suit refusing specific

¶28

¶29

performance, but in an appeal filed by the first respondent, the suit for specific performance is restored for reconsideration. The petitioner is not served with notice after restoration of the suit. The petitioner is a resident of Bengaluru, and he was served with the notice at the first instance before the civil Court, and even in the execution case, only at the address in Bengaluru.

¶30

The learned Counsel for the petitioner further submits that nevertheless, after the restoration of the suit by the appellate Court, the first respondent has filed an application for permission to take out notice to the petitioner through substituted service by way of paper publication. The first respondent is permitted to take out such notice in a daily which has a limited circulation in Kolar district. The suit in O.S. No.95/2008 is disposed of by the civil Court in the year 2016, and this time by granting specific performance.

¶31

¶32

The learned Counsel for the petitioner

¶33

emphasizes that the petitioner was not aware of the date of resumption of the civil suit. Only when he was served with the notice in the execution proceedings at his Bengaluru address, he learnt about the subsequent decree and he has filed an application for recalling of the exparte decree in the Misc. Petition No.11/2019. The first respondent has been served with notice of petition in Misc. Petition No.11/2019 and he has also completed his pleadings. The proceeding is listed for evidence on the petitioner's application and as such, the petitioner has not been able to pursue his application for stay of the decree.

¶34

The learned Counsel for the petitioner urges that the executing Court in the circumstances should have exercised its jurisdiction to stay the execution of the proceedings to facilitate a complete and effective adjudication before the decree is put into execution, and

¶35

¶36

the executing Court should not have taken a pedantic approach in disposing of the petitioner's application only because a wrong provision has been included.

¶37

This Court has granted interim order staying further proceedings and though the first respondent - decree holder is served, has remained unrepresented. The circumstances emphasized by the learned Counsel for the petitioner are not contested. This Court, in the light of these circumstances, is persuaded to dispose of the writ petition by continuing the interim order granted for a limited period with a direction to the civil Court to dispose of the petitioner's application in Misc. Petition No.11/2019 in a time bound manner for a complete and effective adjudication. Therefore, the following order:

¶38

ORDER

¶39

[a] The writ petition stands disposed of staying the further proceedings in Execution Petition No.13/2017

¶40

¶41

before the executing Court for a period of five [5] months from today.

¶42

[b] The Additional Civil Judge and JMFC, Mulbagal (the civil Court) is called upon to dispose of the proceedings in Misc. Petition No.11/2019 within a period of four (4) months from the date of receipt of certified copy of this order.

¶43

[c] The petitioner shall file certified copy of this order in Misc. Petition No.11/2019, and seek an appropriate advancement for such expeditious disposal of the petition.

¶44

Sd/JUDGE

¶45

Shankarappa M v. Vs Sri.K.Narayanappa

Case brief

What is this about?

What did the court decide?

Shankarappa M v. Vs Sri.K.Narayanappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mr.Hemanth M K Vs M.S.Raghu

Sri.S.Kandaswammy Vs Smt.Shazia Tabassum

Smt. Asmathunnisa Vs Sri. Jameel Ahmed Khan

Sri H Mallesha Vs Sri Somashekar

Sunil Chajed Vs Hp Software Company Pvt. Ltd.

Sri K R Veeranna Vs Smt. a N Indumati