Puttamarigowda Vs Smt K H Shashikala

S/O N.C. VEERAIAH AGED ABOUT 44 YEARS R/O C/O BASAVARAJU BASAVESHWARA NILAYA BASAVESHWARA NAGARA BWSSB WEST, KANAKAPURA TOWN RAMANAGARA DISTRICT - 562 117.

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…RESPONDENTS

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(BY SRI. VARADARAJAN M.S, ADVOCATE FOR R1; VIDE ORDER DATED 12.12.2024, NOTICE TO RESPONDENTS IS HELD SUFFICIENT)

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THIS REVIEW PETITION IS FIELD UNDER SECTION 114 R/W ORDER 47 RULE 1 OF CPC, PRAYING TO A) ALLOW THE REVIEW PETITION, REVIEW THE ORDER DATED 10.04.2024 PASSED BY THIS HONBLE COURT IN RSA NO.912/2013.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,

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ORDER WAS MADE THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL ORDER

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This review petition is filed to review the judgment dated

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10.04.2024 passed in RSA.No.912/2013.

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The brief facts leading rise to filing of this review petition are as follows:

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The petitioner herein had filed a suit in O.S.No.6/2003 against respondent Nos.2 and 3. The said suit was decreed. The petitioner filed an execution petition against respondent Nos.2 and 3 to execute a registered sale deed, respondent Nos.2 and 3 did not execute a registered sale deed. The Executing Court appointed a Court Commissioner to execute a registered sale deed. Pursuant to the order passed by the Executing Court, the Court Commissioner executed a sale deed dated 04.09.2008, which was registered on 08.09.2008. The petitioner filed I.A.No.1 for amendment of the execution petition, praying for permission to add additional prayer No.6 for possession of the suit property. The case was posted for objections to I.A.No.1. Pending consideration of I.A.No.1,

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respondent No.1 herein filed I.A.No.2 under Order XXI Rule 97 of the Code of Civil Procedure read with Section 151 and Section 47 of CPC, alleging that he had purchased the suit schedule property from respondent No.3 herein under a registered sale deed dated 18.05.2006. The Executing Court rejected the application on I.A.No.2 filed by respondent No.1 herein. Respondent No.1 herein aggrieved by the order passed on I.A.No.2 preferred an appeal in R.A.No.23/2010 on the file of the Fast Track Court, Kanakapura. The First Appellate Court vide judgment and decree dated 09.04.2013, dismissed the appeal. Respondent No.1 aggrieved by the order on I.A.No.2 passed in Execution Petition No.3/2007 and the judgment and decree passed in R.A.No.23/2010 filed an appeal in RSA.No.912/2013. The learned counsel for respondent No.1 herein filed a memo before this Court, stating that respondent No.1 therein i.e., the petitioner herein filed an application to execute a decree, and the said decree was executed by the registered sale deed. In view of the execution of the registered sale deed, the execution petition had become infructuous. On the basis of the said memo filed by respondent No.1 herein, this Court dismissed the second appeal as withdrawn and

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HC-KAR

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liberty was reserved in favour of both the parties to agitate their grievance before the appropriate forum.

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The petitioner submits that the petitioner has filed an application in I.A.No.1 for amendment to the memorandum of execution petition seeking a prayer for possession. The said application was pending before the Executing Court. No order is passed on the said application. The Executing Court, based on the judgment passed in RSA No. 912/2013, closed the execution petition. Hence, the petitioner filed this review petition.

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Heard the learned counsel for the petitioner and learned counsel for respondent No.1.

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Learned counsel for the petitioner submits that during the pendency of the execution petition, the petitioner filed an application in I.A.No.1 seeking an amendment to the memorandum of execution petition regarding the relief of possession. Respondent No.1 suppressing the said fact, filed a memo for withdrawal of the appeal on the ground that the execution petition has become infructuous. He submits that the

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execution petition has not become infructuous and the petitioner has sought for a relief of possession by filing an application on I.A.No.1. Hence, there is an error apparent on the face of the record. Hence, on these grounds, he prays to allow the review petition.

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Per contra, learned counsel for respondent No.1 submits that the petitioner filed a suit for specific performance of the contract and did not seek relief of possession in the said suit. Though the said suit was decreed for execution of a registered sale deed, accordingly, the Execution Court executed a registered sale deed. In view of the execution of a registered sale deed, the execution petition has become infructuous and respondent No.1 has rightly filed a memo seeking withdrawal of the appeal. There is no error apparent on the face of the record. Hence, on these ground, he prays to dismiss the review petition.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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It is an undisputed fact that the petitioner filed a suit in O.S.No.6/2003 against respondent Nos.2 and 3 herein for the relief of specific performance of the contract, the suit was decreed and respondent Nos.2 and 3 were directed to execute a registered sale deed in favour of the petitioner. Respondent Nos.2 and 3 did not execute a registered sale deed. Pursuant to the decree passed in O.S.No.6/2003. The petitioner filed an execution petition in Execution Petition No.3/2007. The notice was served on respondent Nos.2 and 3. Despite service of notice on respondent Nos. 2 and 3, they did not execute a registered sale deed. The Executing Court appointed a Court Commissioner to execute a registered sale deed. Pursuant to the order passed by the Executing Court, the Court Commissioner executed a registered sale deed on 04.09.2008, which was registered on 08.09.2008.

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After execution of the registered sale deed, the petitioner filed an application for amendment to the memorandum of execution petition seeking for the relief of possession. The said application was pending for consideration, being void, respondent No.1 filed an application under Order

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XXI Rule 97 read with Section 151 & Section 47 of CPC. The

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said application was opposed by the petitioner by filing objections. The Executing Court rejected I.A.No.2, vide order dated 16.01.2010. Respondent No.1 aggrieved by the Order on I.A.No.2 passed in Execution Petition No.3/2007, preferred an appeal in R.A.No.23/2010, on the file of the Presiding Officer, Fast Track Court, Kanakapura. The First Appellate Court, vide judgment and decree dated 09.04.2013, dismissed the appeal. Respondent No.1 aggrieved by the Order on I.A.No.2 and the judgment and decree passed in R.A.No.23/2010 filed a second appeal in RSA.No.912/2013.

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The learned counsel for respondent No.1 filed a memo before this Court, after this Court heard the parties therein stating that Executing Court had executed a registered sale deed in favour of the petitioner. In view of the same, the execution petition has rendered infructuous. On the basis of the memo filed by respondent No.1, this Court, vide judgment dated 10.04.2024, dismissed the appeal as withdrawn. While filing a memo for withdrawal it was not brought to the notice of this Court that an application in I.A.No.1 is pending before the

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Executing Court and the Executing Court has not passed any order on I.A.No.1. After the disposal of the second appeal in RSA No.912/2013, the Executing Court, based on the said judgment, closed the execution petition without passing any orders on I.A.No.1, filed by the petitioner. Without considering the said aspect, the said memo was filed. There is an error apparent on the face of the record. In view of the above discussions, I proceed to pass the following:

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ORDER

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