Disposed

Yallappa S/O Adiveppa Batakhani v. Mallikarjunappa S/O Basappa Battur

Karnataka HC3 Jun 2022WP/116087/2019

Case brief

AI extract

What is this about?

Petitioner, decreeholder, challenged rejection of application for commissioner due to discrepancy in land extent sought versus decree. Court found modification application filed by petitioner. Writ disposed directing executing court to decide modification and execution case within three months.

What did the court decide?

Writ petition disposed; direction to executing court to consider Miscellaneous Application No. 15/2021 and thereafter execute case within three months.

Yallappa S/O Adiveppa Batakhani Vs Mallikarjunappa… — Specific Performance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 03RD DAY OF JUNE, 2022

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BEFORE

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THE HON'BLE MR JUSTICE R.DEVDAS WRIT PETITION NO. 116087 OF 2019 (GM-CPC)

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BETWEEN:

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YALLAPPA S/O ADIVEPPA BATAKHANI AGE: 77 YEARS, OCC: AGRICULTURE, R/O: MULAGUND-582117, TQ/DIST: GADAG. SINCE DECEASED BY LEGAL REPRESENTATIVES

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1(a) SHIVAPUTRAVVA W/O YALLAPPA BATAKHANI, AGE: 70 YEARS, OCC: HOMEMAKER, R/O: TIGADIKERI ONI, MULAGUND-582 117.

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1(b) BASAVARAJ S/O YALLAPPA BATAKHANI, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: TIGADIKERI ONI, MULAGUND-582 117.

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1(c) PRAVEEN S/O YALLAPPA BATAKHANI, AGE: 44 YEARS, OCC: AGRICULTURE, R/O: TIGADIKERI ONI, MULAGUND-582 117.

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1(d) JAYASHREE W/O NINGAPPA MALLI, AGE: 48 YEARS, OCC: HOMEMAKER, R/O: SHEKHI ONI, MULAGUND-582 117.

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1(e) BHARATI W/O MAHESHAGOUDA KASHATTI, AGE: 46 YEARS, OCC: HOMEMAKER, R/O: PUTAGAV BADNI-582 116, TQ: LAXMESHWAR.

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PETITIONER

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(BY SRI. C.S SHETTAR, ADVOCATE)

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AND:

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MALLIKARJUNAPPA S/O BASAPPA BATTUR SINCE DECEASED BY HIS LEGAL REPRESENTATIVES

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NIRMALA W/O MALLIKARJUNAPPA BATTUR, AGE:55 YEARS, OCC:HOUSEHOLD, R/O:TIGADIKERI ONI, MULAGUND-582 117, TQ. / DIST:GADAG.

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MUTTAPPA S/O MALLIKARJUNAPPA BATTUR, AGE: 32 YEARS, OCC: AGRICULTURE, R/O:TIGADIKERI ONI, MULAGUND-582117, TQ / DIST:GADAG.

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GIRIYAPPA S/O MALLIKARJUNAPPA BATTUR, AGE: 30 YEARS, OCC: AGRICULTURE, R/O:TIGADIKERI ONI, MULAGUND-582117, TQ / DIST:GADAG.

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BHARATI D/O MALLIKARJUNAPPA BATTUR, AGE: 35YEARS, OCC: AGRICULTURE, R/O:TIGADIKERI ONI, MULAGUND-582117, TQ / DIST:GADAG.

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RESPONDENTS

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(BY SRI. ARAVIND D. KULKARNI, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

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227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, AT GADAG IN EX. CASE NO. 118/1995 ON I.A. NO. V DATED 03.06.2019 VIDE ANNEXURE-H & ETC.

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THIS WRIT PETITION COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This Writ Petition is filed at the hands of the decreeholder in O.S. No. 389/1993 who had initiated execution proceedings in Ex. Case No. 118/1995, calling in question the impugned order dated 03.06.2019 passed by the learned Prl. Civil Judge & JMFC, Gadag on I.A. No. 5. I.A. No. 5 was filed under Order 26 Rule 10(B) r/w Sec. 151 of CPC for appointment of Commissioner. Nevertheless the said application came to be rejected on noticing that the suit was decreed for specific performance of contract to get sale deed executed to an extent of 5 acres 36 guntas in R.S. No. 81/2 of Mulagund village, but, in the said application filed by the petitioner herein, he had sought appointment of Commissioner to execute the sale deed to an extent of 4 acres 34 guntas. This discrepancy regarding the extent of land was noticed by the executing Court. Therefore, it was directed that unless the decree is modified, the Court Commissioner cannot be appointed.

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Learned counsel for the respondents would submit that consequent to the impugned order dated 03.06.2019, the petitioner herein has sought for a modification of the decree by filing

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Miscellaneous Application in No. 15/2021. Learned counsel for the respondents would therefore submit that the prayer in this writ petition has become infructuous.

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Learned counsel for the petitioner does not dispute the fact that the petitioner has filed Miscellaneous Petition / Application seeking modification of the original decree. However, learned counsel submits that a direction may be issued to the executing Court to consider the subsequent application and dispose of the execution case within a time frame.

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Consequently, the writ petition stands disposed of while directing the learned Principal Civil Judge & JMFC at Gadag to consider and pass orders expeditiously in respect of Miscellaneous Application No. 15/2021 and thereafter consider the execution case also as expeditiously as possible and at any rate within a period of three months from the date when the order is passed on the Miscellaneous Application. Ordered accordingly.

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Yallappa S/O Adiveppa Batakhani v. Mallikarjunappa S/O Basappa Battur

Case brief

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Yallappa S/O Adiveppa Batakhani v. Mallikarjunappa S/O Basappa Battur

Case brief

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What did the court decide?

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