Disposed

Smt Chandramma v. H B Eralingegowda

Karnataka HC23 Jul 2024WP/19555/2017

Case brief

AI extract

What is this about?

Decree-holders challenged dismissal of their execution petition, where the Executing Court found defects in the decree schedule and that the disputed land was not with the judgment debtors. The High Court set aside the dismissal as a final opportunity, subject to payment of Rs.20,000 to the Legal Services Authority, and directed filing in correct form.

What did the court decide?

Impugned order dated 25.11.2015 in Ex.P.No.9/2008 set aside on condition of paying Rs.20,000 to Legal Services Authority within four weeks; petitioners to refile in correct form within five weeks.

Smt Chandramma Vs H B Eralingegowda — Execution and Attachment | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:28875 WP No. 19555 of 2017

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 23^RD DAY OF JULY, 2024

¶4

BEFORE

¶5

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO.19555 OF 2017 (GM-CPC)

¶6

BETWEEN:

¶7

SMT. CHANDRAMMA

¶8

W/O. LATE NANJEGOWDA, AGED ABOUT 57 YEARS, R/AT HULLIKERE VILLAGE, HALEBEEDU HOBLI,

¶9

BELUR TALUK, HASSAN-573115.

¶10

SHANTH KUMAR H N

¶11

Digitally signed by YAMUNA K L Location: High Court of Karnataka

¶12

S/O LATE NANJEGOWDA, AGED ABOUT 35 YEARS, R/AT HULLIKERE VILLAGE, HALEBEEDU HOBLI, BELUR TALUK, HASSAN-573115.

¶13

H.N.SHAKUNTHALA

¶14

D/O LATE NANJEGOWDA, AGED ABOUT 33 YEARS, R/AT HULLIKERE VILLAGE, HALEBEEDU HOBLI, BELUR TALUK, HASSAN-573115

¶15

…PETITIONERS

¶16

(BY SRI. VINAYAKA.B, ADVOCATE)

¶17

2 - NC: 2024:KHC:28875 WP No. 19555 of 2017

¶18

AND:

¶19

H B ERALINGEGOWDA

¶20

LEGAL HEIR OF LATE BASAVEGOWDA, R/AT HULLIKERE VILLAGE, HALEBEEDU HOBLI,

¶21

BELUR TALUK, HASSAN-573115.

¶22

MALLIGAMMA

¶23

LEGAL HEIR OF LATE

¶24

BASAVEGOWDA, R/AT HULLIKERE VILLAGE, HALEBEEDU HOBLI, BELUR TALUK, HASSAN-573115.

¶25

BHAGIRATHAMMA LEGAL HEIR OF LATE BASAVEGOWDA, R/AT HULLIKERE VILLAGE, HALEBEEDU HOBLI, BELUR TALUK, HASSAN-573115.

¶26

CHANDRAMMA

¶27

LEGAL HEIR OF LATE BASAVEGOWDA, R/AT HULLIKERE VILLAGE, HALEBEEDU HOBLI,

¶28

BELUR TALUK, HASSAN-573115.

¶29

JAYAMMA

¶30

LEGAL HEIR OF LATE HAMPEGOWDA, R/AT HULLIKERE VILLAGE,

¶31

HALEBEEDU HOBLI,

¶32

BELUR TALUK, HASSAN-573115.

¶33

GURUPADAMMA

¶34

LEGAL HEIR OF LATE HAMPEGOWDA,

¶35

3 - NC: 2024:KHC:28875 WP No. 19555 of 2017

¶36

R/AT HULLIKERE VILLAGE, HALEBEEDU HOBLI, BELUR TALUK, HASSAN-573115.

¶37

7. HALEGOWDA

¶38

LEGAL HEIR OF LATE HAMPEGOWDA, R/AT HULLIKERE VILLAGE, HALEBEEDU HOBLI, BELUR TALUK, HASSAN-573115

¶39

…RESPONDENTS

¶40

(BY SRI. NANDISH PATIL, ADVOCATE FOR R1 & R7 R4 SERVED & UNREPRESENTED SRI. K. KRISHNASWAMY, ADVOCATE FOR R5 & R6 VIDE ORDER DATED 11.06.2024, NOTICE TO R2 & R3 IS DEEMED SERVICE OF NOTICE)

¶41

THIS W.P FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD 25.11.2015 IN EXECUTION PETITION NO.9/2008 ON THE FILE OF THE CIVIL JUDGE, BELUR, [ANNEXURE-A] THEREBY RESTORE/REINSTATE THE EXECUTION PROCEEDINGS AND ETC.

¶42

THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶43

CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

¶44

4 - NC: 2024:KHC:28875 WP No. 19555 of 2017

¶45

ORAL ORDER

¶46

(PER: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI)

¶47

The present writ petition is filed to set aside the order passed in Execution Petition No.9/2008 dated 25.11.2015 by the Civil Judge, Belur.

¶48

The petitioners herein are the decree-holders. They have filed the suit seeking declaration and for recovery of possession. The said suit came to be dismissed. Against which, they have filed Regular Appeal, that also ended in dismissal. Thereafter, the matter was carried to this Court in Regular Second Appeal No.669/1991. The same came to be allowed by judgment and decree dated 15.06.1998. Thereafter he had filed the present Execution Petition and that Execution Petition came to be dismissed by the Court below.

¶49

The suit schedule property is 1.38 guntas, as far as 19 guntas of land which is part of the suit schedule property is concerned, one of the defendants in the suit had filed a suit for declaration i.e., O.S.No.84/2003 and that came to be decreed on 24.10.2009. Against that, the petitioner-decree holder had preferred an appeal in R.A.No.2/2011, which came to be

¶50

5 - NC: 2024:KHC:28875 WP No. 19555 of 2017

¶51

dismissed on 24.08.2011. Against that, the petitioner herein has filed RSA.No.675/2012. The same came to be dismissed on 16.02.2022. The Court while dismissing the petition filed by the petitioners herein had observed that the particulars as mentioned in the schedule of the decree and the descriptions of boundary and survey numbers are same. However, the judgment debtors, by referring to a report of the Commissioner and the facts as mentioned by the Commissioner earlier, brought to the notice of the Court that the parties to the suit have shown the property bearing Sy.Nos.56/4 and 56/5 are different from the properties as mentioned in the Commissioner Warrant. Thereby, it was unable to execute the warrant and the same was returned. In order to clarify these facts, the decree-holder has not taken necessary steps and not clarified the said material defects. Hence, it is not proper to issue delivery warrant unless clarified or solve these hurdles and as such this petition is not maintainable in the present form. Further the Court observed that on perusal of the certified copy of the Report of Court Commissioner, the Report submitted to the Court on 23.02.2004 and since the date of filing of the Report, the decree-holder has not shown interest to rectify the

¶52

6 - NC: 2024:KHC:28875 WP No. 19555 of 2017

¶53

said mistakes. From the materials as placed by the judgment debtors, it appears that the property for seeking possession is not within the hands of the judgment debtors. Such being the fact, when the disputed property is not with the judgment debtors, then the order is passed for mesne profit amounts to rendering injustice to judgment debtors. The Court had further referred to the earlier litigation between the petitioner and one of the defendant and all these materials are against the decreeholder. Under such circumstances, it is not possible to grant relief as sought for by issuing delivery warrant against the judgment debtors alone. The Court has also observed that it is crystal clear that the decree-holder has not taken precautionary measures while filing the present petition, remained silent and has not taken proper steps to rectify such material defects and accordingly dismissed the petition.

¶54

Learned counsel for the petitioner submits that the Court below had failed to consider that there was a judgment and decree in his favour and except 19 guntas/cents for which decree is passed in a different suit, which has attained finality. The remaining land belongs to the plaintiff and all these aspects were not considered by the Executing Court.

¶55

7 - NC: 2024:KHC:28875 WP No. 19555 of 2017

¶56

There is no representation on behalf of the contesting respondents.

¶57

Having heard the learned counsel for the petitioners, perused the material on record. The Regular Second Appeal is decreed on 15.06.1998. Thereafter, the Execution Petition No.65/1998 is filed, which is renumbered as Ex.P.No.09/2008. In that, the Commissioner Report was filed on 23/04/2004, wherein the Commissioner has submitted a Report stating that the decree-holder has not taken any steps to rectify the mistakes. The Court has also observed that the disputed property is not within the hands of Judgment Debtors, and then the Court cannot pass an order against them for the mesne profits. Under such circumstances, it is not possible to issue delivery warrant and decree-holder has not taken any precautionary measures while filing the present petition and not taken proper steps to rectify such material defects. It is the contention of the learned counsel for the petitioner that in view of the pending litigation in the other case, which has attained finality, Regular Appeal was disposed of in the year 2011 and Regular Second Appeal was disposed of on 16.02.2022 and as such for deleting the 19 cents and for filing Execution Petition

¶58

8 - NC: 2024:KHC:28875 WP No. 19555 of 2017

¶59

for remaining extent, there was no occasion for the decreeholder. On the face of it, there are latches on the part of the petitioner. Even the order in the Execution Petition is passed in the year 2015 and filed the writ petition in the year 2017 and right from 2017 to 2024 what are the steps taken by the petitioners is also not known. He should have been either before the Executing Court or before this Court. This shows that the petitioner was not interested in pursuing the litigation. Judgment and decree was passed in the year 1998 and till now, he could not take proper steps to execute the decree. Though there is a clear latches on the part of the petitioners, as a final opportunity and considering the arguments of the learned counsel for the petitioners, impugned order dated 25.11.2015 in Execution Petition No.9/2008 is set aside on the condition that the petitioners shall pay an amount of Rs.20,000/- to the Legal Services Authority, within a period of fours weeks.

¶60

The petitioners-decree-holders shall file the petition

¶61

in the correct form before the Court within five weeks from today.

¶62

NC: 2024:KHC:28875 WP No. 19555 of 2017

¶63

¶64

Accordingly, writ petition stands disposed off.

¶65

All I.A's in the writ petition shall stand closed.

¶66

Sd/(LALITHA KANNEGANTI) JUDGE

¶67

SMJ List No.: 1 Sl No.: 14

Smt Chandramma v. H B Eralingegowda

Case brief

What is this about?

What did the court decide?

Smt Chandramma v. H B Eralingegowda

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

Similar cases

Meer Kudarath Ali Vs Smt. Muniyamma

Sri Subramanya B a Vs Smt Shobana Shekar a C

Sri Hidayathulla Vs Smt Mehrunissa

Sri Shivashankar @ Raju Vs Smt.Sudha v

Sri N Girish Vs Smt v Asha

Smt Susheelamma Vs Smt Nagamma