Smt Pushpa C Kotian Vs Smt Indira

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NC: 2025:KHC:52159 WP No. 10492 of 2019

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^TH DAY OF DECEMBER, 2025 BEFORE

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THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 10492 OF 2019 (GM-CPC)

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BETWEEN:

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SMT. PUSHPA C. KOTIAN D/O LATE AITHAPPA ANACHAN AGED ABOUT 63 YEARS R/AT SAI AMRUT BUILDING 301/3RD FLOOR, AMBIKA NAGARA GOGRAUSWADI, DOMBIVILI (EAST) MUMBAI.

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SMT. YASHODA D/O LATE AITHAPPA ANACHAN AGED ABOUT 61 YEARS R/AT SAI AMRUT BUILDING 301/3RD FLOOR, AMBIKA NAGARA GOGRAUSWADI, DOMBIVILI (EAST) MUMBAI.

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Digitally signed by NANDINI M S Location: HIGH

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COURT OF KARNATAKA

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SMT. SHASHI D/O LATE AITHAPPA ANACHAN AGED ABOUT 58 YEARS R/AT SAI AMRUT BUILDING 301/3RD FLOOR, AMBIKA NAGARA GOGRAUSWADI, DOMBIVILI (EAST) MUMBAI.

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SULOCHANI W/O MOHANCHANDRA U ANCHANA

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AGED ABOUT 62 YEARS, BANK OF BARODA LAXMI BUILDING, SIR P M ROAD FORT, MUMBAI-400 001.

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SUNDARI W/O RAVINDRA ANCHAN

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HC-KAR

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AGED ABOUT 60 YEARS, DOOR NO.7-5-607 OPP MAHALAXMI TILE FACTORY,BOLOOR MANGALORE-575003.

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SHEENA @ SHRINIVASA S/O LATE RANGAPPA ANCHAN AGED ABOUT 58 YEARS, R/AT DOOR NO.7-5-607 OPP MAHAAXMI TILE FACTORY BOLOOR, MANGALORE-575003.

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KAMALA W/O G KUCKIAN AGED ABOUT 56 YEARS, R/AT RAMDEO BHAYA CHAWL KOLDONGRI LANE ANDHERI (E), MUMBAI-400 069.

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UMANATHA S/O LATE RANGAPPA ANCHAN AGED ABOUT 51 YEARS, R/AT DOOR NO.7-5-607 OPP MAHAAXMI TILE FACTORY BOLOOR, MANGALORE-575003

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SATHEESHA S/O LATE RANGAPPA ANCHAN AGED ABOUT 47 YEARS, C/O G. KUCKIAN R/AT RAMDEO BHAYA CHAVI KOLDONGRI 1 LANE ANDHERI(E), MUMBAI - 69.

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SAVITHRI D/O RAMA POOJARY AGED ABOUT 49 YEARS, R/AT NEAR NANDINI MILK DAIRY KULSHEKAR, MANGALORE - 575 005.

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SHEETHAL D/O LATE GOPALAKRISHNA SAILAN AGED ABOUT 28 YEARS, R/AT NEAR NANDINI MILK DAIRY KULSHEKAR, MANGALORE-575005.

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HC-KAR

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JAYANTHI W/O SRINIVAS AGED ABOUT 59 YEARS, KHER NAGAR, B.NO.37, NEAR N.K.S. SCHOOL BANDRA (EAST), MUMBAI.

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ASHALATHA W/O SADANANDA AGED ABOUT 55 YEARS, R/AT MANTHRAYA QUARTERS VILLE PARLE (EAST), MUMBAI.

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KASHINATH ANCHAN S/O ALTE NARAYAA ANCHAN AGEDA BOUT 52 YEARS R/AT SULTHANATE OF OMAN

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PETITIONERS NO.1 TO 8 AND 10 TO 14 ARE REP. BY THEIR GPA HOLDER PETITIONER NO.9 SRI SATHEESHA.

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…PETITIONERS

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(BY SRI S. GANESHSHENOY, ADV., FOR

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P-1 TO P-3, P-5 TO P-8, P-10 TO P-13 & P-14; P-10 7 P-11 SERVED WITH COURT NOTICE)

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AND:

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SMT. INDIRA W/O LATE YATHISH AGED ABOUT 56 YEARS, R/AT D NO.7-11-1085 PADNABHA ANCHAN COMPOUND OPP RAJARAJESHWAIR BHAVAN S B ROAD, BOLOOR MANGALORE - 575 003.

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MANISH S/O LATE YATHISH AGED ABOUT 33 YEARS, R/AT D NO.7-11-1085 PADNABHA ANCHAN COMPOUND

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NC: 2025:KHC:52159 WP No. 10492 of 2019

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HC-KAR

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OPP RAJARAJESHWAIR BHAVAN S B ROAD, BOLOOR MANGALORE - 575 003.

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NAMITHA

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D/O LATE YATHISH AGED ABOUT 31 YEARS, R/AT D NO.7-11-1085 PADNABHA ANCHAN COMPOUND OPP RAJARAJESHWAIR BHAVAN S B ROAD, BOLOOR MANGALORE - 575 003.

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UMESH S/O LATE PADMANABHA ANCHAN AGED ABOUT 58 YEARS R/AT D NO.7-11-1085 PADNABHA ANCHAN COMPOUND OPP RAJARAJESHWAIR BHAVAN S B ROAD, BOLOOR MANGALORE - 575 003.

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ASHOK S/O LATE PADMANABHA ANCHAN AGED ABOUT 53 YEARS, R/AT D NO.7-11-1085 PADNABHA ANCHAN COMPOUND OPP RAJARAJESHWAIR BHAVAN S B ROAD, BOLOOR MANGALORE - 575 003.

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YOGISH S/O LATE PADMANABHA ANCHAN AGED ABOUT 49 YEARS, R/AT D NO.7-11-1085 PADNABHA ANCHAN COMPOUND OPP RAJARAJESHWAIR BHAVAN S B ROAD, BOLOOR MANGALORE - 575 003.

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SANTHOSH KUMAR B S/O LATE PADMANABHA ANCHAN AGED ABOUT 47 YEARS, R/AT D NO.7-11-1085 PADNABHA ANCHAN COMPOUND

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HC-KAR

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OPP RAJARAJESHWAIR BHAVAN S B ROAD, BOLOOR MANGALORE - 575 003.

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RAJESH S/O LATE PADMANABHA ANCHAN AGED ABOUT 43 YEARS, R/AT D NO.7-11-1085 PADNABHA ANCHAN COMPOUND OPP RAJARAJESHWAIR BHAVAN S B ROAD, BOLOOR

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MANGALORE - 575 003.

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HITHAKSHI D/O LATE PADMANABHA ANCHAN AGED ABOUT 55 YEARS, R/AT D NO.7-11-1085 PADNABHA ANCHAN COMPOUND OPP RAJARAJESHWAIR BHAVAN S B ROAD, BOLOOR

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MANGALORE - 575 003.

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MALLIKA S/O LATE PADMANABHA ANCHAN AGED ABOUT 45 YEARS, R/AT D NO.7-11-1085 PADNABHA ANCHAN COMPOUND OPP RAJARAJESHWAIR BHAVAN S B ROAD, BOLOOR MANGALORE - 575 003.

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…RESPONDENTS

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(BY SRI M. VISHWAJITH RAI, ADV., FOR R-1 TO R-4 & R-6 TO R-10; R-5 SERVED & UNREPRESENTED)

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THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DT21.6.2018 PASSED IN EXECUTION CASE NO.13/2013 ON THE FILE OF II ADDL SR.CIVIL JUDGE AND CJM AT MANGALORE, TRUE COPY OF WHICH IS PRODUCED AS PER ANNEXURE-A.

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

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NC: 2025:KHC:52159 WP No. 10492 of 2019

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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The decree holders are before this Court in this writ petition filed under Article 227 of the Constitution of India with a prayer to set-aside the order dated 21.06.2018 passed by the Court of II Addl. Senior Civil Judge and CJM, Mangaluru, in Execution Case No.13/2013.

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Heard the learned counsel for the parties.

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OS No.55/1976 was filed by the decree holders seeking the relief of partition and separation possession of suit schedule properties and in the said suit, a decree was granted for partition and possession of schedules A and B properties. Schedule A property consists of immovable properties and Schedule B property consists of movable properties. The judgment and decree passed in OS No.55/1976 has attained finality. A perusal of the preliminary decree passed in OS No.55/1976 would go to show that in Schedule B, there are as many as 22 items including certain gold ornaments. Pursuant to the preliminary decree passed in OS No.55/1976, final decree was drawn in FDP No.73/1978 by the Trial Court on

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HC-KAR

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18.07.2012 and it is not in dispute that the said final decree

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has attained finality. Execution Case No.13/2013 is filed by the decree holder with a prayer to put them in possession of suit schedule A property and also to divide B schedule property by appointing a commissioner and to allot 3/4^th share in B schedule property. The Trial Court vide the order impugned has directed the judgment debtors to put the petitioners in possession of A schedule property. However, the claim of decree holders in respect of B schedule property was rejected. Aggrieved by the same, decree holders are before this Court.

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Perusal of the material on record would go to show that there is a finding recorded in OS No.55/1976 that defendant in the said suit was in possession of the movables described in Schedule B and as such, an order was passed for partition of the movables along with the immovable properties described in Schedule A of the plaint. The said finding has attained finality and in terms of the preliminary decree passed in OS No.55/1976, final decree is also now drawn in FDP No.73/1978 on 18.07.2012, which has attained finality.

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HC-KAR

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Perusal of the material on record would go to show that though parties have lead evidence before the Executing Court, they have failed to produce sufficient material before the Executing Court regarding the value of the movables described in Schedule B of the execution petition. The decree holders have not produced any evidence which would prima facie go to show that defendant's legal representatives have come in possession of the schedule B properties. Even if the legal representatives of the defendant/judgment debtor have not come in possession of the properties, they are atleast liable to pay the value of the same, in view of the finding that defendant was in possession of schedule B property during his lifetime. The Trial Court has proceeded to reject the prayer of the decree holders in respect to B schedule property for the reason that the Court Commissioner had not found any movables in the A schedule property during his visit. This approach of the Trial Court in my considered opinion cannot be sustained. Even in the event, the moveables cannot be traced with the legal representatives of the defendant, having regard to the finding recorded in OS No.55/1976, which has now attained finality, the Trial Court ought to have determined the then value of the

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HC-KAR

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movables described in Schedule B and thereafter passed appropriate orders in terms of the final decree passed in FDP No.73/1978. Under the circumstances, I am of the opinion that the order impugned to the extent it relates to rejecting the claim of the decree holders in respect to B schedule property needs to be set-aside. Accordingly, the following order:-

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This writ petition is allowed in part. The impugned order dated 21.06.2018 passed by the Court of II Addl. Senior Civil Judge and CJM, Mangaluru, in Execution Case No.13/2013, insofar as it relates to rejecting the claim of the decree holders in respect to B schedule property is set-aside. The matter is remitted to the Executing Court to determine the value of the movables described in Schedule B property in the light of the observations made hereinabove and thereafter, pass

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appropriate orders.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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DN

Smt Pushpa C Kotian v. Smt Indira

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Smt Pushpa C Kotian v. Smt Indira

Case brief

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