Dismissed

Mahaveer S/O Devappa Desai Alias Bellad v. Mahaveer S/O Devappa Chikkaparappa

Karnataka HC15 Apr 2024WP/102281/2024

Case brief

AI extract

What is this about?

This writ petition challenged the execution court's order allowing the decree holder's dilatory applications to recall a witness and reopen evidence in a case where the matter was already posted for arguments, distinguishing the precedent by noting the change of Presiding Officer.

What did the court decide?

Writ petition dismissed; impugned common order allowing execution court applications maintained.

Mahaveer S/O Devappa Desai Alias Bellad Vs… — Execution and Attachment | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:6353 WP No. 102281 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15^TH DAY OF APRIL, 2024 BEFORE

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THE HON'BLE MR JUSTICE RAVI V.HOSMANI WRIT PETITION NO. 102281 OF 2024 (GM-CPC)

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BETWEEN:

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MAHAVEER S/O. DEVAPPA DESAI @ BELLAD, AGE: 63 YEARS, OCC: AGRICULTURE, R/O. NO.347/A, BASTI GALLI, HALAGA-590 003, TQ & DIST: BELAGAVI.

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BABU S/O. GUNDAPPA CHIKKAPARAPPA @ DESAI, AGE: 67 YEARS, OCC: AGRICULTURE, R/O. NO.356, BASTI GALLI, HALAGA-590 003, TQ & DIST: BELAGAVI.

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…PETITIONERS

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(BY SRI CHETAN MUNNOLI, ADVOCATE)

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AND:

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MAHAVEER S/O. DEVAPPA CHIKKAPARAPPA, AGE: MAJOR, OCC: AGRICULTURE, R/O. HALAGA-590 003, TQ & DIST: BELAGAVI.

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CHANDRASHEKAR
LAXMAN
KATTIMANI
Digitally signed byCHANDRASHEKAR
LAXMAN KATTIMANI
Location: HIGH COURT OF
KARNATAKA DHARWAD
BENCH
Date: 2024.04.18 15:32:19
+0530

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SUNANDA W/O. BAHUBALI CHIKKAPARAPPA, AGE: MAJOR, OCC: AGRICULTURE, R/O. HALAGA-590 003, TQ & DIST:BELAGAVI.

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SHANTINATH S/O. PARISAPPA BELLAD, AGE: MAJOR, OCC: AGRICULTURE,

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PAYAPPA S/O. JINNAPPA BELLAD, AGE: MAJOR, OCC: AGRICULTURE,

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RAMESH S/O. SATAPPA BELLAD, AGE: MAJOR, OCC: AGRICULTURE,

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SURESNDRA S/O. TAWANAPPA SHAHAPURI, AGE: MAJOR, OCC: AGRICULTURE,

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2 - NC: 2024:KHC-D:6353 WP No. 102281 of 2024

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KALLAPPA S/O. DHANAPAL INCHAL, AGE: MAJOR, OCC: AGRICULTURE,

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DHARMU S/O. DEVAPPA BELLAD, AGE: MAJOR, OCC: AGRICULTURE,

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MANOHAR S/O. DEVAPPA BELLAD, AGE: MAJOR, OCC: AGRICULTURE,

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JINNAPPA S/O. BABU PACHODI, AGE: MAJOR, OCC: AGRICULTURE,

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JINNAPPA S/O. MALLAPPA CHOUGULE, AGE: MAJOR, OCC: AGRICULTURE,

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CHARU S/O. SUKUMAR SAIBANNAVAR, AGE: MAJOR, OCC: AGRICULTURE,

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BABU S/O. BALAPPA SAIBANNAVAR, AGE: MAJOR, OCC: AGRICULTURE,

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KANTINATH S/O. SIDRAI PARISHWAD, AGE: MAJOR, OCC: AGRICULTURE,

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DEVAPPA S/O. BALAPPA MARKAL, AGE: MAJOR, OCC: AGRICULTURE,

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SHRI KANTU MARKAL, AGE: MAJOR, OCC: AGRICULTURE, ALL ARE R/O. HALAGA-590 003, TQ & DIST: BELAGAVI.

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…RESPONDENTS

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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 SET ASIDE THE COMMON ORDER DATED 19.02.2024 ON IA NO.15 FILED U/SEC.151 OF CPC TO REOPEN THE STAGE FOR FURTHER EVIDENCE OF PW1, IA NO.16 FILED U/ORDER 18 RULE 17 OF CPC R/W SEC. 151 OF CPC TO RECALL PW1 TO LEAD FURTHER EVIDENCE AND IA NO.17 FILED U/ORDER 7 RULE 14 R/W SEC.151 OF CPC SEEKING PERMISSION TO PRODUCE THE DOCUMENTS PASSED IN EP NO.868/2014 ON THE FILE OF THE PR.CIVIL JUDGE AND JMFC, BELAGAVI, VIDE ANNEXURE-A.

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3 - NC: 2024:KHC-D:6353 WP No. 102281 of 2024

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

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ORDER

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This writ petition is filed seeking for following relief:

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i. Issue a Writ or order or direction in the nature of Certiorari set aside the Common Order dated 19.02.2024 on IA no.15 filed U/Sec.151 of CPC to reopen the stage for further evidence of PW1, IA no.16 filed U/Order 18 rule 17 of CPC R/W Sec. 151 of CPC to recall PW1 to lead further evidence and IA no.17 filed U/Order 7 rule 14 R/W Sec.151 of CPC seeking permission to produce the documents passed in EP no.868/2014 on the file of the Pr.Civil Judge and JMFC, Belagavi, vide Annexure-A.

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Sri Chetan Munnolli, learned counsel for petitioners

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s ubmitted that petitioners were judgment debtors no.10 and 1 respectively, in Ex.no.868/2014 on file of Principal Civil Judge (Jr.Dn.) and JMFC, Belagavi, filed by respondent no.1/decree holder. Said execution petition was filed for executing decree passed in OS no.544/1999 on 18.04.2002. It was submitted R.A.no.111/2007 filed against said decree was dismissed on 21.03.2011 and even RSA no.100058/2014 was dismissed on 21.06.2022.

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It was submitted, in Execution Petition, after conclusion of evidence, when matter was posted for hearing,

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4 - NC: 2024:KHC-D:6353 WP No. 102281 of 2024

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decree holder filed three applications, namely, IA no.15 under Section 151 of CPC to reopen stage of evidence; IA no.16 under Order XVIII Rule 17 of CPC for recall of PW1 and IA no.17 under Order VII Rule 14 of CPC for production of documents. It was submitted, though petitioners filed objections and opposed applications on ground that they were dilatory and not tenable without proper consideration, Executing Court allowed applications. Aggrieved thereby, petition was filed.

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It was submitted, reasons stated for filing applications was production of documents, which were well within knowledge of decree holder at time of recording evidence. Further, application was highly belated and filed when matter was posted for arguments would establish that it was dilatory in nature. It was submitted, matter was infact heard by earlier Presiding Officer. But, due to change of Presiding Officer, matter had come back to stage of hearing. Therefore, impugned order being unsustainable was liable to be quashed.

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5 - NC: 2024:KHC-D:6353 WP No. 102281 of 2024

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In support of his submission, learned counsel sought to rely on Division Bench decision in Rabiya Bi Kassim M. v. The Country Wide Consumer Financial Service Ltd. reported in ILR 2004 KAR 2215 for proposition that it would be impermissible to reopen matter, which is already posted for pronouncement of judgment.

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Heard learned counsel for petitioner and perused writ petition record.

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From above, it is seen that petitioner is challenging order passed by Executing Court allowing decree holders’ application for recall of witness for reopening stage of evidence and production of documents. There is no dispute about judgment and decree under execution having attained finality. There is also not in dispute about execution petition having progressed to stage of hearing.

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Perusal of affidavit filed in support of application

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would indicate intention of decree holder to produce certain documents as reason for filing application.

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Execution of petition is filed alleging violation of

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decree of permanent injunction, which is denied by petitioners.

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6 - NC: 2024:KHC-D:6353 WP No. 102281 of 2024

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In order to substantiate violation of order of injunction, decree holder is intending to produce affidavit filed by judgment debtors during appellate proceedings claiming to be in possession of suit property even after passing of decree for permanent injunction. Indeed, decree holder would be justified in pointing out fact that decree holder being aware of such admission much prior to filing application, as observed by Executing Court, same was subsequent to recording of evidence of PW.1- decree holder.

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It is not in dispute that due to change of Presiding Officer, matter had come back to stage of hearing. It is not case of petitioner that decree-holder was adopting dilatory tactics to harass judgment- debtor. No other instances are cited. Hon’ble Supreme Court in Rahul S. Sha v. Jinendra Kumar Gandhi and others reported in 2021 6 SCC 418 has held Executing Court to take steps for expediting execution petition and assist decree holder to reap fruits of decree. Under such circumstances, merely on ground that petitioner was aware of documents much prior to filing of application, cannot be sole consideration.

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7 - NC: 2024:KHC-D:6353 WP No. 102281 of 2024

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Fact that change of Presiding Officer had resulted in matter being brought back to stage of hearing, when application was filed, would render ratio in Rabiya Bi’s case (supra) inapplicable. Hence, there are no good or sufficient grounds to interfere. Accordingly, writ petition is dismissed.

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Sd/JUDGE

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VMB List No.: 1 Sl No.: 42

Mahaveer S/O Devappa Desai Alias Bellad v. Mahaveer S/O Devappa Chikkaparappa

Case brief

What is this about?

What did the court decide?

Mahaveer S/O Devappa Desai Alias Bellad v. Mahaveer S/O Devappa Chikkaparappa

Case brief

What is this about?

What did the court decide?

What the court decided

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