Allowed

Abp Girish Gouda S/O Late Kotragouda v. Sri.Mallikarjunappa S/O Ereseemi Shanthappa

Karnataka HC19 Sept 2024WP/146146/2020

Case brief

AI extract

What is this about?

High Court allowed writ petition quashing Trial Court order permitting amendment in execution petition. Court directed remand for respondent to prove property number change and set six-month timeline for disposal.

What did the court decide?

Impugned order quashed; matter remitted to Trial Court with direction to respondent to produce documents; disposal within six months.

Abp Girish Gouda S/O Late Kotragouda Vs… — Execution and Attachment | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:13376 WP No. 146146 of 2020

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 19^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH

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WRIT PETITION NO. 146146 OF 2020 (GM-CPC)

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BETWEEN:

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ABP GIRISH GOUDA S/O. LATE KOTRAGOUDA, AGE: 36 YEARS, OCC: AGRICULTURIST & ADVOCATE, R/O: ARASIKERE VILLAGE, TQ: HARAPANAHALLI, DIST: BALLARI.

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ABP SHANTAMMA W/O. LATE KOTRAGOUDA, AGE: 57 YEARS, OCC: AGRICULTURIST, R/O: ARASIKERE VILLAGE, TQ: HARAPANAHALLI, DIST: BALLARI.

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ABP GURUSHANTANAGOUDA S/O. LATE KOTRAGOUDA, AGE: 35 YEARS, OCC: AGRICULTURIST, R/O: ARASIKERE VILLAGE, TQ: HARAPANAHALLI, DIST: BALLARI.

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GIRIJA A BYAHATTI

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Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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ABP AMBARISHGOUDA S/O. LATE KOTRAGOUDA, AGE: 31 YEARS, OCC: AGRICULTURIST, R/O: ARASIKERE VILLAGE, TQ: HARAPANAHALLI, DIST: BALLARI.

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…PETITIONERS

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(BY SRI. VIVEKANANDA N., ADVOCATE)

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AND:

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SRI. MALLIKARJUNAPPA S/O. ERESEEMI SHANTHAPPA, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: DEETUR VILLAGE, TQ: HARIHAR-577601, DIST: DAVANAGERE.

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…RESPONDENT

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(BY SRI. L.M. KURAHATTI, ADVOCATE)

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2 - NC: 2024:KHC-D:13376 WP No. 146146 of 2020

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI AND QUASH ANNEXURE-G ORDERS ON I.A.NO.II DATED 07.03.2020 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC HARAPANAHALLI IN EXECUTION PETITION NO.37/2016 AND ALLOW THE WRIT PETITION AND ETC.

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard the petitioners’ counsel and also the counsel for respondent.

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The prayer is sought for quashing the order passed by the Trial Court in allowing the decree holder to amend the property number as 44 instead of 43. The same is objected by the petitioners herein stating that no document is placed before the Trial Court to substantiate that property number 43 is changed as 44.

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Having heard the petitioners’ counsel and also

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the counsel appearing for the respondent and also on perusal of the affidavit filed in support of the application for amendment, it is stated that the property number 43 is

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3 - NC: 2024:KHC-D:13376 WP No. 146146 of 2020

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changed as 44. The counsel appearing for the petitioners brought to the notice of this Court the schedule mentioned in the Original Suit as well as in the Regular Appeal and decree is in respect of property bearing number 43. Even at the time of filing of the execution also property number is mentioned as 43 but contended that the said number

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has been now changed by the concerned authority. In order to substantiate the same, nothing is placed on record and Trial Court also while allowing the application, comes to the conclusion that if the property is different, definitely the objection of the Judgment Debtor holds good. Mere amendment of the petition is not a proof. Even if it is a new door number, then the burden is on the Decree Holder to prove that the door number of the suit property itself has been changed by the Municipal Authority and given new number and if the application is not allowed, the Decree Holder is prevented to prove the said fact. The Trial Court proceeded in an erroneous approach that the Decree Holder has to prove but the case is filed for the execution of the judgment and decree

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4 - NC: 2024:KHC-D:13376 WP No. 146146 of 2020

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passed by the Trial Court and confirmed in the appeal. When the execution is filed for enforcement of the decree, the Trial Court ought to have insisted the respondent to place a document before the Court for having changed the number as 44 instead of 43 and when nothing is placed on record, question of proving the fact does not arise. The execution petition is filed to execute the decree and in terms of the decree, property is numbered as 43 and now seeking for an amendment of property number as 44. When there was a decree in respect of property number 43, the same has been permitted to amend without any material on record. Except oral statement, nothing is placed on record and the Trial Court has committed an error in permitting to amend the same and matter requires reconsideration. Hence, let the respondent to place a document before the Trial Court for changing the property No. 43 as 44 as contended in the application and it is required to direct the Trial Court to consider the application afresh.

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5 - NC: 2024:KHC-D:13376 WP No. 146146 of 2020

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4. In view of the discussions made above, I pass

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the following:

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ORDER

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(i) Writ Petition is allowed.

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(ii) The impugned order dated 07.03.2020 passed on I.A.No.II by the Senior Civil Judge and JMFC, Harapanahalli in Execution Petition No.37/2016 vide Annexure-G is quashed.

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(iii) The matter is remitted back to the Trial Court to consider the matter afresh and the respondent herein to produce the document to substantiate with regard to the change of the property No.43 as 44 and then the Trial Court to consider the same for amendment of the property number.

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(iv) As almost eight years have been elapsed, the Trial Court is directed to dispose of the Execution Petition within a period of six months.

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(v) Both the parties and counsels are directed to assist the Trial Court in disposal of the case within the time bound as stipulated.

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NC: 2024:KHC-D:13376 WP No. 146146 of 2020

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(vi) Petitioners’ counsel is directed to place this order forthwith before the Trial Court to enable the Trial Court to dispose of the case within the time bound period of six months.

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Sd/(H.P.SANDESH) JUDGE

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NAA CT-MCK List No.: 2 Sl No.: 5

Abp Girish Gouda S/O Late Kotragouda v. Sri.Mallikarjunappa S/O Ereseemi Shanthappa

Case brief

What is this about?

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Abp Girish Gouda S/O Late Kotragouda v. Sri.Mallikarjunappa S/O Ereseemi Shanthappa

Case brief

What is this about?

What did the court decide?

What the court decided

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