Allowed

Sri Shambulingaiah Since Dead by His Lrs Shakuntalamma W/O Late Sri Shambulingaiah v. B Nagarudra Gouda S/O Veerabhadra Gouda

Karnataka HC17 Feb 2023WP/100585/2023

Case brief

AI extract

What is this about?

The Karnataka High Court allowed a writ petition against an order dismissing a Section 151 application to set aside a compromise decree. The trial court erred by rejecting the application as unmaintainable without holding an inquiry. The High Court set aside the order and remanded for fresh adjudication.

What did the court decide?

Impugned order set aside; matter remitted to trial court for re-hearing after conducting inquiry and permitting evidence.

Sri Shambulingaiah Since Dead by His Lrs Shakuntalamma W/O Late… — Partition | Karnataka HC (2023)

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WP No. 100585 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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WRIT PETITION NO. 100585/2023 (GM-CPC)

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BETWEEN:

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SRI SHAMBULINGAIAH SINCE DEAD BY HIS LRS SHAKUNTALAMMA W/O LATE SRI SHAMBULINGAIAH AGED ABOUT 66 YEARS

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R/O SHANAVASAPURA VILLAGE SIRUGUPPA TALUK, BALLARI DISTRICT 583120.

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CHANDRAIAH SWAMY S/O LATE SRI SHAMBULINGAIAH, AGED ABOUT 46 YEARS, R/O SHANAVASAPURA VILLAGE, SIRUGUPPA TALUK, BALLARI DISTRICT 583120.

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JAMBAIAH S/O LATE SRI SHAMBULINGAIAH, AGED ABOUT 41 YEARS, R/O SHANAVASAPURA VILLAGE, SIRUGUPPA TALUK, BALLARI DISTRICT 583120.

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BASAIAH S/O LATE SRI SHAMBULINGAIAH, AGED ABOUT 33 YEARS, R/O SHANAVASAPURA VILLAGE, SIRUGUPPA TALUK, BALLARI DISTRICT 583120.

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad

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YERRISWAMY S/O LATE SRI SHAMBULINGAIAH, AGED ABOUT 30 YEARS, R/O SHANAVASAPURA VILLAGE, SIRUGUPPA TALUK, BALLARI DISTRICT 583120.

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MALLIKARJUNAIAH S/O LATE SRI JAMBAIAH, AGED ABOUT 65 YEARS, R/O SHANAVASAPURA VILLAGE, SIRUGUPPA TALUK, BALLARI DISTRICT 583120.

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PETITIONERS

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(BY SRI. K RAGHAVENDRA RAO .K, ADVOCATE)

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AND:

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B NAGARUDRA GOUDA S/O VEERABHADRA GOUDA, AGED ABOUT 46 YEARS, R/O SHANAVASAPURA VILLAGE SIRUGUPPA TALUK, BALLARI DISTRICT 583120

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S SHANTHANAGOUDA S/O CHANAGOUDA, AGED ABOUT 49 YEARS, R/O SHANAVASAPURA VILLAGE,

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WP No. 100585 of 2023

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SIRUGUPPA TALUK, BALLARI DISTRICT 583120.

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THIMMANA GOUDA SINCE DEAD BY HIS LRS

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BASAMMA W/O LATE SRI THIMMANA GOUDA, AGED ABOUT 43 YEARS, R/O SHANAVASAPURA VILLAGE, SIRUGUPPA TALUK, BALLARI DISTRICT 583120.

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MOHANGOUDA S/O LATE SRI THIMMANA GOUDA, AGED ABOUT 43 YEARS, R/O SHANAVASAPURA VILLAGE, SIRUGUPPA TALUK, BALLARI DISTRICT 583120.

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ANUPAMA D/O LATE SRI THIMMANA GOUDA, AGED ABOUT 40 YEARS, R/O SHANAVASAPURA VILLAGE, SIRUGUPPA TALUK, BALLARI DISTRICT 583120.

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MADHUKALA D/O LATE SRI THIMMANA GOUDA, AGED ABOUT 36 YEARS, R/O SHANAVASAPURA VILLAGE, SIRUGUPPA TALUK, BALLARI DISTRICT 583120.

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ARALIGANUR MUDUKANA GOUDA S/O DODDANAGOUDA, AGED ABOUT 66 YEARS, R/O SHANAVASAPURA VILLAGE, SIRUGUPPA TALUK, BALLARI DISTRICT 583120.

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RESPONDENTS

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(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE FOR C/R1)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226

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AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE LEARNED CIVIL JUDGE AND JMFC, SIRUGUPPA PASSED ON CIVIL MISC. NO.13/2021 IN O.S.NO.44/2003 DATED 09.11.2022 FOUND AT ANNEXURE-B & ETC.

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

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WP No. 100585 of 2023

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ORDER

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This writ petition is directed against the impugned order dated 09.11.2022 passed in Civil Misc. No. 13/2021 in O.S. No. 44/2003 on the file of the Civil Judge & JMFC, Siruguppa, whereby the said application filed by the petitioners u/S 151 CPC seeking to recall/ set aside the compromise decree dated 15.06.2005 passed in O.S. No. 44/2003 was rejected.

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I have heard learned counsel for the petitioner and the learned counsel for caveator/ respondent No.1 and perused the material on record including the impugned order.

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The material on record discloses that the petitioners were plaintiffs in O.S. No. 44/2003 and the same having ended in a compromise decree dated 15.06.2005 allegedly entered into between the petitioner and defendants, the petitioners filed an application u/S 151 CPC seeking setting aside of the compromise decree on various grounds, i.e., unlawful, void, etc. The said application having been opposed by the respondents/ defendants, who were also parties to the compromise decree, the trial Court proceeded to pass the impugned order dismissing the petition as

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WP No. 100585 of 2023

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not maintainable, aggrieved by which the petitioner is before this Court by way of the present writ petition.

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A perusal of the impugned order will indicate that the trial Court has dismissed the application as not maintainable without holding any enquiry or permitting the parties to adduce evidence. In this context, it is relevant to note that in light of the specific bar contained in 23-A which prohibits a party to compromise decree to file separate suit and in view of the bar contained in 96(3) which prohibits an appeal against a consent decree, the only option available to a party to a compromise decree, such as the petitioner herein, was to file a separate application u/S 151 CPC which has been designated as Civil Misc. No. 13/2021 and the same would necessarily have to be disposed of by permitting both sides to adduce oral and documentary evidence and by conducting necessary enquiry.

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Under these circumstances, despite the petitioner filing the Civil Misc. No. 13/2021 invoking Sec. 151 CPC and seeking setting aside of the compromise decree passed under Order 23 Rule 3 CPC, the trial Court clearly misdirected itself in coming to the

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5 - WP No. 100585 of 2023

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erroneous conclusion that the petition was not maintainable without appreciating that in light of the specific averments made in the aforesaid petition to the effect that the alleged compromise entered into was unlawful and contrary to Order 23 Rule 3 CPC, it was incumbent upon the trial Court to conduct necessary enquiry and permit both sides to adduce oral and documentary evidence and thereafter proceed to consider and dispose of the petition in accordance with law and failure on the part of the trial Court to follow the said procedure, has resulted in erroneous conclusion and has occasioned failure of justice warranting interference by this Court in the present writ petition.

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In the result, I pass the following order.

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ORDER

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i) Writ Petition is allowed;

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ii) Consequently, the impugned order dated 09.11.2022 passed in Civil Misc. No. 13/2021 in O.S. No. 44/2003 on the file of the Civil Judge & JMFC, Siruguppa, is set aside;

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WP No. 100585 of 2023

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iii) Matter is remitted back to the trial Court for reconsideration afresh in accordance with law by conducting necessary enquiry and by permitting both sides to adduce oral and documentary evidence in support of their respective claim and thereafter to pass appropriate orders on the said Civil Misc. No. 13/2021 in accordance with law;

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iv) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same;

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v) Liberty is reserved in favour of the parties to file additional

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pleadings, documents, etc. in support of their respective claim.

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BVV

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List No.: 2 Sl No.: 43

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SD JUDGE

Sri Shambulingaiah Since Dead by His Lrs Shakuntalamma W/O Late Sri Shambulingaiah v. B Nagarudra Gouda S/O Veerabhadra Gouda

Case brief

What is this about?

What did the court decide?

Sri Shambulingaiah Since Dead by His Lrs Shakuntalamma W/O Late Sri Shambulingaiah v. B Nagarudra Gouda S/O Veerabhadra Gouda

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

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