Dismissed

Smt. Manjula v. Smt. Gayathri

Karnataka HC10 Jun 2024WP/2536/2023

Case brief

AI extract

What is this about?

Writ petition challenging rejection of an application to quash an execution sale. The court held that since petitioners filed a separate suit for partition which was rejected and not stayed, the trial court did not err in dismissing their application to set aside the sale without a fresh enquiry.

What did the court decide?

The application under Order 21 Rules 97 and 121 CPC was dismissed and the writ petition was rejected subject to outcome of pending appeal RA.29/2023.

Smt. Manjula Vs Smt. Gayathri — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:20243 WP No. 2536 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.I.ARUN WRIT PETITION NO. 2536 OF 2023 (GM-CPC)

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BETWEEN:

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SMT. MANJULA W/O ANANDNA, D/O VENKATESHAPPA AGED ABOUT 40 YEARS, R/AT YELUVAGULI VILLAGE TEKAL HOBLI, MALURU TALUK, KOLARA DISTRICT.

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SMT. PREMALATHA W/O PRAKASH D/O VENKATESHAPPA AGED ABOUT 31 YEARS R/AT DODDANALLURU VILLAGE AND HOBLI, HOSUR TALUK, KRISHNAGIRI DISTRICT, TAMILNADU.

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Digitally signed by V MANJUSHA BAI Location: High Court of Karnataka

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SMT. ROOPA W/O VENKATESH D/O VENKATESHAPPA AGED ABOUT 29 YEARS, R/AT BANTAHALLI VILLAGE LAKKUR HOBLI, MALURU TALUK, KOLAR DISTRICT.

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…PETITIONERS

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(BY SRI. S VISWESWARAIAH, ADVOCATE)

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2 - NC: 2024:KHC:20243 WP No. 2536 of 2023

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AND:

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SMT. GAYATHRI W/O LATE LAKSHMIPATHI AGED ABOUT 50 YEARS,

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L. SAHANA D/O LATE LAKSHMIPATHI AGED ABOUT 29 YEARS

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L NAYANA NO.3 D/O LATE LAKSHMIPATHI AGED ABOUT 25 YEARS

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ALL ARE RESIDING AT JAGADENAHALLI VILLAGE, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT.

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SRI. VENKATESHAPPA S/O LATE CHIKKA MUNIYAPPA AGED ABOUT 67 YEARS

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SRI. NAGESH S/O VENKATESHAPPA AGED ABOUT 36 YEARS,

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NO.4 & 5 ARE RESIDING AT MANISHETTIHALLI VILLAGE, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT – 563 160.

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…RESPONDENTS

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(BY SRI. VISHWAS S. REDDY, ADVOCATE FOR R1 TO R3, SRI. K.N. MOHAN, ADVOCATE FOR R4 AND R5)

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THIS WRIT PETITION FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER PASSED BY THE HONBLE SENIOR CIVIL JUDGE, MALUR IN EX. NO. 11/2018 DATED 18/10/2022 PASSED ON IA

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NC: 2024:KHC:20243 WP No. 2536 of 2023

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U/O 21 RULE 97 OF CPC PRODUCED AT ANNEXUE-E BY ALLOWING THE WRIT PETITION.

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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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Aggrieved by the orders in Ex.No.11/2018 dated 18.10.2022 by the Senior Civil Judge, Malur, the objectors therein have preferred this writ petition.

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The case of the petitioners is that respondent No.4 is their father and respondent No.5 is their brother. The property, which is subject matter of the present writ petition is a joint family property of petitioners and respondent Nos.4 and 5. However, respondent Nos.4 and 5 alone without including Petitioner Nos.1 to 3, fraudulently, entered into an agreement of sale to sell the property in favour of respondent Nos.1, 2 and 3. It is further submitted that respondent Nos.4 and 5 deliberately suffered an ex-parte decree, which resulted in respondent Nos.1, 2 and 3 filing execution No.11/2018. It is submitted that the petitioners herein appeared as objectors and filed an application under order 21 Rule 97 read with 121 of CPC. However, without an

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4 - NC: 2024:KHC:20243 WP No. 2536 of 2023

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enquiry being conducted, as to the rights of the petitioners

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herein, the execution court has erroneously dismissed their application. Aggrieved by the same, the present writ petition is filed.

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Per contra, learned counsel for respondent Nos.1 to 3 submits that petitioners herein in collusion with respondent Nos.4 and 5 preferred application under Order 21 Rule 97 to frustrate the rights of respondent Nos.1 to 3.

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It is further submitted that petitioners herein, subsequent to filing of O.S.No.252/2016 by respondent Nos.1 to 3 to enforce the agreement entered into with respondent Nos.4 and 5, filed O.S.No.484/2021, wherein they prayed for partition of the property concerned and also to declare that the registered agreement of sale entered into with the father of respondent Nos.1 to 3 as not binding on them. It is also submitted that the said original suit came to be rejected on application filed under Order 7 Rule 11 of CPC by respondent Nos.1 to 3 herein and that the petitioners herein have preferred RA.No.29/2023, which is pending before the Principal District Judge, Kolar. It is submitted

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5 - NC: 2024:KHC:20243 WP No. 2536 of 2023

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that as the petitioners have no right over the property and failed to prima facie establish that they have any right over the same, the trial Court rightly dismissed their application filed in Ex.No.11/2018 and on that ground, it is prayed that the writ petition be dismissed.

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The question that arises for consideration in the instant writ petition is whether the trial Court was justified in rejecting the application filed by the petitioners without instituting enquiry as to their rights over the suit schedule property?

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Admittedly, respondent Nos.1, 2 and 3 are bonafide purchasers of the property concerned for valuable consideration. They had entered into an agreement in this regard with respondent Nos.4 and 5, who promised respondent Nos.1, 2 and 3 that they are the absolute owners of the property and no one had any right over the same including the petitioners herein.

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The trial Court in O.S.No.252/2016 has passed the decree of specific performance directing respondent

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Nos.4 and 5 to execute the sale deed in favour of respondent Nos.1, 2 and 3 herein. The said order is not stayed or set aside so far. Thus, respondent Nos.1, 2 and 3 filed Ex.No.11/2018 to get the decree in O.S.No.252/2016 executed. It is further submitted that balance consideration has been deposited in the Court by respondent Nos.1, 2 and 3. No fault can be found in the actions of respondent Nos.1, 2 and 3.

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The petitioners admittedly filed O.S.No.484/2021 to determine their rights in the property concerned.

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The said plaint has been rejected on an application under Order 7 Rule 11 CPC by the trial Court. RA.No.29/2023 is said to have been filed against the said rejection of plaint, which is still pending. It is further submitted in the said proceedings, all the parties to the instant writ petition are the parties therein. The petitioners having instituted O.S.No.484/2021 and having suffered an

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order at the hands of the trial Court in the said original suit and no order of stay being granted in the appellate Court

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7 - NC: 2024:KHC:20243 WP No. 2536 of 2023

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against the said order, cannot now turn around and again file an application before the executing Court and contend hat their rights have to be determined over the property concerned. Under the said circumstances, I do not see any error in the order passed by the trial Court. However, if the petitioners were to succeed in RA.No.29/2023, it is needless to state then in that event the rights of respondent Nos.1, 2 and 3 herein over the property concerned will be subject to the orders passed in those proceedings. Subject to the said observation, writ petition is hereby dismissed .

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Sd/JUDGE

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List No.: 2 Sl No.: 17

Smt. Manjula v. Smt. Gayathri

Case brief

What is this about?

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Smt. Manjula v. Smt. Gayathri

Case brief

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