Allowed

Smt Shivubai W/O Bhimappa Kalloli v. Smt Sanvakka W/O Murari Aliyas Murigeppa Magadum

Karnataka HC11 Jul 2023WP/104425/2022

Case brief

AI extract

What is this about?

Petitioners, legal representatives of Bhimappa Kalloli, filed a writ petition to quash a compromise decree in O.S. No. 5/2022 concerning property alienation. Respondents filed memoranda consenting to the quashing of the decree without prejudice to their pending rights in a regular second appeal. The High Court accepted the consent and allowed the petition.

What did the court decide?

Compromise decree dated 12.03.2022 in O.S. No. 5/2022 referred to National Lok Adalat is set aside; writ petition allowed.

Smt Shivubai W/O Bhimappa Kalloli Vs Smt Sanvakka W/O… — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:7019 WP No. 104425 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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WRIT PETITION NO.104425 OF 2022 (GM-RES)

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BETWEEN:

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SMT. SHIVUBAI W/O. BHIMAPPA KALLOLI, AGE: 72 YEARS, OCC: HOUSEHOLD WORK,

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SHRI MURIGEPPA S/O. BHIMAPPA KALLOLI, AGE: 47 YEARS, OCC: COOLIE,

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SHRI NALLAWWA W/O. KALLAPPA GODEPPAGOL @ HADIMANI, AGE: 45 YEARS, OCC: HOUSEHOLD WORK,

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SMT. MAYAWWA W/O. VITHAL GAVADI, AGE: 43 YEARS, OCC: HOUSEHOLD WORK,

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BAGAWWA D/O. BHIMAPPA KALLOLI, W/O. SIDRAM BELKUDE, AGE: 41 YEARS, OCC: HOUSEHOLD WORK,

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ROHAN HADIMANI T

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Digitally signed by ROHAN HADIMANI T Location: High Court of Karnataka, Dharwad

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ALL ARE R/O: MURAGUNDI-591 259, TAL: ATHANI, DIST: BELAGAVI.

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…PETITIONERS

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(BY MISS. SURABHI KULKARNI, ADVOCATE FOR SRI CHETAN MUNNOLI, ADVOCATES)

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AND:

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SMT. SANVAKKA W/O. MURARI @ MURIGEPPA MAGADUM, AGE: 57 YEARS, OCC: HOUSEHOLD WORK & AGRICULTURE, R/O: MURAGUNDI-591 259, TAL: ATHANI, DIST: BELAGAVI.

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SMT. JAYASHRI D/O. MURARI @ MURIGEPPA MAGADUM, AGE: 38 YEARS, OCC: HOUSEHOLD WORK @ AGRICULTURE, R/O: MURAGUNDI-591 259, TAL: ATHANI, DIST: BELAGAVI.

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SMT. MAYAVVA D/O. CHANDRAKANT BEKKERI, AGE: 34 YEARS, OCC: HOUSEHOLD WORK & AGRICULTURE, R/O: BEKKERI-591 317, TAL: CHIKODI, DIST: BELAGAVI. NOW R/AT: MURAGUNDI-591 259, TAL: ATHANI, DIST: BELAGAVI.

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SMT. MAHADEVI W/O. BHIMA LOKUR, AGE: 30 YEARS, OCC: HOUSEHOLD WORK & AGRICULTURE, R/O: AWARKHOD-591 240, TAL: ATHANI, DIST: BELAGAVI. NOW R/AT: MURAGUNDI-591 259, TAL: ATHANI, DIST: BELAGAVI.

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SHRI YAMANAPPA S/O. PARAMANAND MADAR, AGE: 35 YEARS, OCC: AGRICULTURE, R/O: DODWAD-591 240, TAL: ATHANI, DIST: BELAGAVI.

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SHRI SADASHIV S/O. PARAMANAND MADAR, AGE: 25 YEARS, OCC: AGRICULTURE, R/O: DODWAD-591 240, TAL: ATHANI, DIST: BELAGAVI.

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…RESPONDENTS

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(BY SRI RAMACHANDRA A. MALI, ADVOCATE FOR R1 TO 4; SRI BALAGOUDA A. PATIL, ADVOCATE FOR R5 AND 6)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OR ORDER OR DIRECTION IN THE NATURE OF CERTIORARI QUASHING THE COMPROMISE DECREE DATED 12.03.2022 IN O.S. NO. 5/2022 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE ATAHANI AT ATHANI REFERRED TO THE NATIONAL LOK ADALAT, PRODUCED AS PER ANNEXURE-A; DECLARE THAT THE COMPROMISE DECREE DATED 12.03.2022 IN O.S. NO. 5/2022 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE ATHANI AT ATHANI

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REFERRED TO THE NATIONAL LOK ADALAT PRODUCED AS PER ANNEXURE-A IS NOT BINDING ON THE PETITIONERS, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioners herein are questioning the compromise

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decree dated 12.03.2022 in O.S.No.5/2022 on the file of learned Principal Senior Civil Judge, Athani. Petitioners are none other than legal representatives of Bhimappa Kalloli. The said Bhimappa Kalloli along with his brother by name Shivappa and Kallappa succeeded to the property of their father i.e., Siddappa. Thereafter, the brother namely Shivappa and Kallappa executed a registered sale deed dated 28.09.1992 in respect of 2/3^rd share in R.S.No.1781/2A+2B in favour of Shankar Bhimappa Salagar for a sale consideration of Rs.58,000/-.

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Pursuant to the said sale by his brothers Shivappa and Kallappa, late Bhimappa Kalloli instituted a suit in O.S.No.37/1993 on the file of Civil Judge, Senior Division, Athani for the relief of declaration that Bhimappa

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Kalloli had preferential right to purchase 2/3^rd share belonging to his brothers and also sought for mandatory injunction directing the purchaser namely Shankar Bhimappa Salagar to execute sale deed in favour of Bhimappa Kalloli. During the pendency of suit filed by Bhimappa Kalloli, the Shankar Bhimappa Salgar sold 1/2 share out of 2/3^rd portion purchased by him from the brothers of Bhimappa Kalloli in favour of one Murari Magadum, who is non other than the husband of respondent No.1 and father of respondent Nos.2 to 4 herein by virtue of registered sale deed dated 12.04.1993 and accordingly, the said Murari Magadum was impleaded in the original suit O.S.No.37/1993.

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The said original suit O.S.No.37/1993 filed by Bhimappa Kalloli came to be decreed on 15.04.2005 with regard to his preferential right to purchase 2/3^rd share of his brothers in R.S.No.1781/2A+2B and accordingly, said Shankar Bhimappa Salagar and Murari Magadum were directed to execute sale deed in favour of Bhimappa Kalloli

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by receiving sale consideration amount. Aggrieved by the judgment and decree in O.S.No.37/1993, the Shankar Salagar and Murari Magadum filed Regular Appeal in R.A.No.46/2005 and in view of dismissal of the same, the Regular Second Appeal No.2656/2006 is filed which is pending adjudication before this Court. During the pendency of the RSA, the said Murari Magadum died on 11.07.2013 and accordingly, his legal representatives who are respondent Nos.1 to 4 herein have been brought on record.

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In pursuance to the decree in O.S.No.37/1993 and the Bhimappa Kalloli having died on 23.12.2013, the petitioners who are his legal representatives initiated an executing proceedings in Execution Case No.245/2017 on the file of Prl. Senior Civil Judge, Athani. Respondent Nos.1 to 4 were brought on record in the said execution petition. The petitioners herein filed I.A.No.III under Order XXXIX Rule 1 and 2 of CPC in Execution case No.245/2017 to restrain respondent Nos.1 to 4 from alienating the land

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bearing R.S.No.1781/2A+2B till disposal of the execution proceedings. The Executing Court passed an order of status-quo with regard to the property in dispute.

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This being the state of affairs and in violation of

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the order of status-quo granted by the Executing Court, respondent Nos.1 to 4 executed an agreement of sale in favour of respondent Nos.5 and 6 herein for total sale consideration amount of Rs.12,50,000/- and received earnest money of Rs.12,00,000/- from respondent Nos.5 and 6. After entering into agreement of sale, respondent Nos.5 and 6 instituted a suit in O.S.No.5/2022 seeking for the relief of specific performance of contract dated 23.11.2021 or in the alternative to refund the earnest money deposited along with interest.

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In the original suit O.S.No.5/2022, respondent Nos.1 to 4 herein and respondent Nos.5 and 6 entered into a compromise amongst themselves on the basis of compromise petition filed on 04.03.2022 and based on the said compromise petition, a compromise decree is passed

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on 12.03.2022 vide Annexure-A. It is contended by learned counsel for the petitioners by virtue of said compromise decree in O.S.No.5/2022, respondent Nos.5 and 6 have already got their names mutated and entries changed in the revenue records. In view of these events during the pendency of original suit, RSA and the execution proceedings, petitioners are before this Court seeking to set-aside the compromise decree entered into between respondent Nos.1 to 4, 5 and 6, on the ground that the same is entered by playing fraud and it is abuse of process of Court as it is also in violation of the order passed in the execution proceedings. During the pendency of this petition, respondent Nos.1 to 4, 5 and 6 have filed their memos separately supported by way of affidavits. The memo reads as under;

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"That the petitioners have filed the above petition seeking quashing of the compromise decree recorded by the Lok Adalath in O.S.No.5/2022 on the file of Civil Judge Athani wherein the respondents 1 to 4 and respondents No.5 and 6 have entered into a compromise decree between themselves. It is submitted that the present respondents 1 to 4 hereby convey

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and concede before this Hon'ble Court to allow the above writ petition and quash the compromise decree recorded by the Lok Adalath in O.S.No.5/2022 on the file of Civil Judge Athani without prejudice to their legal rights and contentions in RSA No.2656/2006 pending on the file of this Hon'ble Court and other legal proceedings between the parties. Therefore, recording the consent/conceding to allow the petition, the above petition may be disposed of in the interest of the justice and equity."

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The memo is also signed by the respective

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parties i.e., respondent Nos.1 to 4 and respondent Nos.5

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and 6 and identified by their respective counsels on record. The sum and substance of the memos are that the respondents are now agreeable and consent to quash the compromise decree entered into amongst themselves in O.S.No.5/2022 on the file of Principal Senior Civil Judge, Athani. However, they contend that same may be without prejudice to their legal rights and contentions in RSA.No.2656/2006 which is pending adjudication and any other legal proceedings between the parties.

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Admittedly, the facts narrated herein above are not in dispute amongst the parties to this petition with

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regard to initiation of the suit, initiation of execution proceedings and the property having been sold during pendency of the proceedings and the agreement of sale having been entered into by respondent Nos.1 to 4 with respondent Nos.5 and 6 and the compromise petition filed by respondent Nos.1 to 4 and respondent Nos.5 and 6 before the Court and the same having been ended in a compromise decree, all these aspects are not disputed. It is also submitted by learned counsel for the petitioners that a contempt petition has been filed, which is pending adjudication against respondent Nos.1 to 4. This being the state of affairs, the respondents have found it wise to file this memo for disposal agreeing to concede and consent for this petition being allowed and consequently, quash the compromise decree, the same to be decided on merits.

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Therefore, without adverting to the merits and de-merits of the case of the parties, in view of the memo having been filed by respondents and the same having been signed by respective parties identified by respective

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counsels, it would be appropriate in the interest of all parties to accept the said memos of respondents and to

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allow the writ petition. Accordingly, I pass the following ;

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ORDER

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(i) Writ petition is allowed.

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(ii) The compromise decree dated 12.03.2022

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passed by the Principal Senior Civil Judge, Athani referred to the National Lok-Adalat in O.S.No.5/2022 is hereby set aside.

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(iii) It is needless to mention that the

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compromise decree which is herein set aside would not be binding on the petitioners.

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(iv) The parties i.e., the petitioners and the respondent Nos.1 to 4 are already agitating the matter in RSA.No.2656/2006, it is open to

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the parties to agitate to their respective claims in the above said R.S.A.

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AM, CKK/-

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Sd/JUDGE

Smt Shivubai W/O Bhimappa Kalloli v. Smt Sanvakka W/O Murari Aliyas Murigeppa Magadum

Case brief

What is this about?

What did the court decide?

Smt Shivubai W/O Bhimappa Kalloli v. Smt Sanvakka W/O Murari Aliyas Murigeppa Magadum

Case brief

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What did the court decide?

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