Sri Vadiraja D Vs Smt Ramakka

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NC: 2025:KHC:9333 WP No. 32112 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF MARCH, 2025

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 32112 OF 2018 (GM-CPC)

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BETWEEN:

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SRI VADIRAJA D, S/O LATE C DEVANNA, AGED ABOUT 52 YEARS, R/AT NO.22, 1^ST CROSS, NEAR R.R SCHOOL, DODDABAMMASANDRA, VIDYARANYAPURA POST, BENGALURU-560 097.

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…PETITIONER

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(BY SRI KIRAN GOWDA M, ADVOCATE)

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AND:

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Digitally signed by ROOPA R U Location: HIGH COURT OF KARNATAKA

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SMT. RAMAKKA, W/O NARASIMHAIAH, AGED ABOUT 61 YEARS. DEAD BY LRS.

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1(a) SRI NARASIMIAH, AGED ABOUT 66 YEARS, S/O LATE MUNISWAMAPPA, R/AT NO. 19/1, KADIRENAHALLI VILLAGE, UTTARAHALLI HOBLI, BENGALURU SOUTH TALUK-560 076.

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1(b) SMT. N KANTHA LAKSHMI, D/O SHRI NARASIMIAH, W/O. SRI KADIRAPPA, AGED ABOUT 50 YEARS,

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R/AT NO. 25, DODDAKALLASANDRA, KANAKPURA MAIN ROAD, GANESHA TEMPLE ROAD, BENGALURU-560 062.

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1(c) SMT. N. RENUKA, D/O SHRI NARASIMIAH, W/O. SRI SHRINIVASAN, AGED ABOUT 48 YEARS, R/AT WARD NO. 16, SRINIVASA NAGAR, CHINTAMANI TOWN & TALUK, CHICKABALAPUR DISTRICT, KARNATAKA-563 125.

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1(d) SRI N.BABU, S/O SHRI NARASIMIAH, AGED ABOUT 46 YEARS, R/AT NO.113, 4^TH MAIN ROAD, M.T.B AREA, 5^TH BLOCK,

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JAYANAGAR, BENGALURU-560 041.

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AMENDMENT CARRIEDOUT AS PER ORDER DATED 30.08.2024

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SRI K.B GANAPATHI BHAT, S/O H.S BHASKAR RAO, #18, 8^TH CROSS, BSK 2^ND STAGE, KADIRANAHALLI, MAHESHWARA TEMPLE, MAIN ROAD, BENGALURU-560 076.

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AMENDMENT CARRIEDOUT AS PER ORDER DATED 07.06.2023.

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…RESPONDENTS

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(BY SRI V PRABHAKAR, ADVOCATE FOR R-2;

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SERVICE OF NOTICE AGAINST R-1 (a, c & d) HELD SUFFICIENT V/O DATED 21.08.2024;

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SERVICE OF NOTICE TO R-1 (b) HELD SUFFICIENT V/O DATED 10.01.2024)

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NC: 2025:KHC:9333 WP No. 32112 of 2018

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THIS W.P. IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER OF THE LEARNED EXECUTING COURT DATED 25.04.2018 PASSED BY THE XI ADDL. CITY CIVIL AND SESSIONS JUDGE IN EXECUTION CASE NO.2123/2006 VIDE ANNX-A, THEREBY RESTORING THE EXECUTING PETITION ON THE FILE ETC.

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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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CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL

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ORAL ORDER

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Petitioner who is a Decree Holder in a proceeding in Execution Case No.2123/2006 is before this Court being aggrieved by the orders dated 25.04.2018 and 26.04.2018 passed by the XI Additional City Civil and Sessions Judge, Bengaluru (Executing Court) by dismissing the said Execution petition and cancelling the Deed of Sale dated 15.03.2013 that had been executed in favour of the petitioner through the Court process.

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Brief facts of the case are that, petitioner herein

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had entered into an agreement dated 05.05.2003 with one Smt.Ramakka, her husband Sri Narasimhaiah and their son Sri Babu, agreeing to purchase property being vacant residential site bearing katha No.19/1, Kadirenahalli

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Village, coming within (Ward No.55 of Bengaluru Mahanagara Palike) Uttarahalli Hobli, Bengaluru South Taluk, measuring East-West: 30 feet and North-South 20 feet. The said agreement has been registered in the office of Sub-Registrar, Kengeri as document No.BNG(U)KNGR/2753/2003-2004/1-6. It appears non performance of the said agreement by the vendors therein constrained the petitioner herein to file OS No.8453/2003 on the file of XI Additional City Civil Judge, Bengaluru. The said suit was filed only against Smt.Ramakka, who is shown in the agreement as vendor No.1. She was placed ex-parte. By the judgment and decree dated 15.02.2006, the suit came to be decreed, directing defendants to execute registered

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Deed of Sale in favour of plaintiff within six months by receiving the balance sale consideration of Rs.5,000/-. Non-compliance of the said decree led the petitioner herein to file the above Execution case in No.2123/2006. A

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Deed of Sale dated 15.03.2013 came to be executed by the Executing Court in favour of the petitioner herein duly registered as Document No.BNG(U)-BSK/13397/2012-13.

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Petitioner, thereafter, sought for delivery of possession of the said property by filing an application under order XXI Rule 35 on 18.08.2015. Apparently, when the said order was sought to be executed, petitioner learnt that one K.B.Ganapathi Bhat, who is respondent No.2 in this petition was in occupation of the said property claiming to have purchased the said property in terms of a Deed of Sale dated 04.09.2014 purportedly executed by aforesaid Narasimhaiha and his son Babu. This led the petitioner to file an application under Order 1 Rule 10 CPC in the aforesaid Execution case seeking to implead respondent No.2- K.B. Ganapathi Bhat as proposed judgment debtor No.2. By the impugned order dated 25.04.2018, the

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Executing Court rejected the said application. It appears that having dismissed the application for impleading, the Executing Court had directed the very same proposed judgment debtor No.2 to file an application to get the

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Deed of Sale dated 15.03.2013 cancelled. Accordingly, posting the matter on the very next day, i.e. on 26.04.2018, and has allowed the said application and

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cancelled the Deed of Sale dated 15.03.2013 that was executed by the Executing Court in favour of the petitioner. It is these two orders which are called in question before this Court, in this petition.

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Learned counsel appearing for the petitioner reiterating the grounds urged in the memorandum of petition, vehemently submits that the orders impugned in this petition passed by the Executing Court are illegal and without jurisdiction. He submits that the Executing Court while assigning the reasons to pass the impugned orders has exceeded its jurisdiction. That the Executing Court ought not to have gone into the merits or otherwise of the decree which are passed clearly violating the settled principles of law. He relies upon the judgment of the Apex Court in the cases of Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others¹ and Rameshwar Dass Gupta Vs. State of U.P. and Another² , in support

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1 1970 (1) SCC 670

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2 (1996) 5 SCC 728

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of his submission. Hence, seeks allowing of the writ petition.

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Per contra , learned counsel appearing for respondent No.2 at the outset submits that the writ petition as against respondent No.2 is not maintainable inasmuch as respondent No.2 was neither a party to the

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suit in which the Decree for specific performance was granted nor he was a party in the execution proceedings. Alternatively, he submits the decree obtained by the petitioner itself is not executable inasmuch as though the petitioner had entered into an agreement Smt. Ramakka, her husband Sri Narasimhaiah and their son Sri Babu, the suit was filed only Smt. Ramakka which itself was not maintainable. Therefore, he submits that the decree which is passed in a suit which is not maintainable is unenforceable. It is further submitted that respondent No.2 is a bonafide purchaser having purchased the property in terms of the registered deed dated 04.09.2014 from the husband of

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said Smt. Ramakka, namely, Sri Narasimhaiah and their son Sri Babu, who was the absolute owner in possession of

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the property and he has obtained registration of katha and has even put up construction and as such, by virtue of decree which was obtained exparte, the petitioner cannot unsettle respondent No.2. He submits that no error or illegality can be attached/attributed to the impugned order passed by the Executing Court. Hence, prays for allowing the petition.

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Heard and perused.

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It is appropriate before adverting to the rival contentions to refer to the settled position of law as succinctly held by Apex Court in the case of Vasudev

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Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others ( supra) , as below :

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"6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a

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decree even if it be erroneous is still binding between the parties.

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When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In Jnanendra Mohan Bhaduri and Another v. Rabindra Nath Chakravarti (1932 SCC Online PC 72), the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction."

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Further, in the case of Rameshwar Dass Gupta Vs.

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State of U.P. and Another (supra) , the Apex Court has

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held as below:

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"4. It is a well-settled legal position that an executing court cannot travel beyond the order or decree under execution. It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order 21 CPC. In view of the fact that it is a money claim, what was to be computed is the arrears of the salary, gratuity and pension after computation of his promotional benefits in accordance with the service law. That having been done and the court having decided the entitlement of the decree-holder in a sum of Rs.1,97,000 and odd, the question that arises is whether the executing court could step out and grant a decree for interest which was not part of the decree for execution on the ground of delay in payment or for unreasonable stand taken in execution? In our view, the executing court has exceeded its jurisdiction and the order is one without jurisdiction and is thereby a void order. It is true that the High Court normally exercises its revisional jurisdiction under Section 115 CPC but once it is held that the executing court has exceeded its jurisdiction, it is but the duty of the High Court to correct the same. Therefore, we do not find any illegality in the order passed by the High Court in interfering with and setting aside the order directing payment of interest."

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In the light of the aforesaid enunciation of law,

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what needs to be looked into is, whether the impugned order passed by the Executing Court runs contrary to the aforesaid principles of law?. Impugned Orders passed by the Executing Court are extracted herein as under:

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Order on IA No.3

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The present application is filed by DHR U/O 1 Rule 10(2) of CPC to implead K.B.Ganapathy Bhat as JDR No.2 on the ground that he has purchased the schedule property during pendency of the present proceedings. For the said application proposed JDR.No.2 filed objections in detail. Heard advocate for DHR and proposed JDR No.2.

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The present execution petition is filed by the DHR on the basis of exparte judgment and decree passed in O.S.No.8453/2003 on the basis of agreement of sale dt 5-5-2003 for the relief of specific performance of contract. The said agreement of sale was executed by one Smt. Ramakka, Sri. Narasimhaiah and Sri.Babu. Though the said agreement was executed by three persons the DHR has filed O.S.No.8453/2003 against only Ramakka. As per Ex.P1 in the said suit a gift deed was executed by Narasimhaiha in favour of Ramakka. But there is no evidence to show that another executant Babu has executed any document in favour of Ramakka with respect to his right in the suit schedule property. Inspite of that rightly or wrongly the said suit was decreed by the then officer of this court. Under these circumstances when the agreement was executed by three persons and the suit filed by the plaintiff is only against one person is not maintainable and judgment and decree passed in the said suit is not executable decree. Hence EP itself is not maintainable on the basis of impugned judgment and decree as the same is unexecutable decree. The proposed JDR No.2 is not party to the said suit. Since the EP itself is not maintainable. IA No.3 is not survive for consideration. Hence IA No.3 is hereby dismissed. In view of the observation made above the IA No.2 is also not maintainable. Hence IA No.2 is also dismissed.

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In view of the above discussion since the impugned judgment and decree is unexecutable judgment and decree. The execution petition is dismissed as maintainable.

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In the present execution petition court sale deed is already executed by this court through the then officer of this court on 15-3-2013. Hence JDR No.2 is directed to file necessary application to get canceled the sale deed. Call on 26-4-2018.

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Advocate for JDR No.2 filed application U/S 31(2) of Specific Relief Act. R/w Sec 151 of CPC to cancel the court sale deed executed on 15-3-2013. In view of the order passed by this court on 25-4-2018. DHR and his counsel called out absent. No representation is made. In view of the order passed by this court on 25-4-2018 the execution petition is dismissed as not maintainable, the sale deed executed by this court on 15-3-2013 is to be canceled. Under such circumstances the application deserves to be allowed. Hence the following:-

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Order

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Application filed by JDR No.2 U/S 31(2) of Specific relief Act r/w 151 of CPC is hereby allowed. The court sale deed executed by this court on 15-32013 registered as document number BSK-1-133972012-13 stored in CD No.BSKD202 dated 15-3-2013 is canceled and senior Sub Registrar Basavanagudi (Banashakari) Bangalore is hereby directed to make necessary entry in the concerned registers.

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EP closed.

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Impugned orders perused in the light of the aforesaid settled position of law would reveal that the Executing Court, in effect, has intruded into the very filing of the suit and passing of the decree by calling upon itself to look into the authenticity or otherwise of the suit filed by the petitioner and the valid decree passed therein. The Executing Court has apparently looked into the agreement dated 05.05.2013 which was executed by Smt.Ramakka, respondent No.1, her husband Sri Narasimhaiah and their son Sri Babu, infavour of the petitioner and nothing else to

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come to the conclusion that the petitioner herein had chosen to file the suit only against Ramakka. Though it was not open for the Executing Court to have looked into it, yet the reasons assigned by the Executing Court is prima facie erroneous for the reason that, the very same agreement at clause No.3 reads as under:

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"ಅ�ಾ�ಇದರ��ೆಡೂ��ನ��ಕ�ಮ�ಾ�ನಮೂದು�ಾ�ರುವಸ�ತು� 1�ೇ ಕ�ಯ�ಾರ!ಾದ"�ೕಮ#.$ಾಮಕ% ಆದನನ' (ಾ�)ೕನ*ೆ% +�ಾಂಕ:18-10-2002 ರಂದು *ೆಂ-ೇ. ಉಪ�ೋಂದ1ಾ)*ಾ.ಗಳ ಕ4ೇ.ಯ 1�ೇ ಪ5ಸ�ಕದ, 12624/2002-03�ೇನಂಬ$ಾ�.7ಸ89 ಆದ �ಾನಪತ�ದಮೂಲಕನನ' ಯಜ�ಾನ$ಾದ"�ೕ.ನರ=ಂಹಯ�ನವ.ಂದಬಂದು, ಆ ?ಾ-ಾಯು��ಾವ5ಗ!ೇ

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�ಾ�ೕಕರೂ, ಹಕು%�ಾರರೂ, �ಾರಸು�ಾರರೂಆ�ಸದ. ಸ�#�ನ@ಾAೆಯನು' ವ-ಾBC=ೊಂಡು, ಸದ. ಸ�#�-ೆ ಕಟ8Eೇಾದ ಎ?ಾ� .ೕ#ಯ ಕಂ�ಾಯ ವ-ೈ$ೆಗಳನು' ಸಂಭಂದಪಟ8 ಕ4ೇ.-ೆಕI8*ೊಂಡುಸುಖ+ಂದಅನುಭK=*ೊಂಡು ಬರು#�ರುವ5ದುಸ.ಯ�ೆL."

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Clearly, Smt. Ramakka, respondent No.1, who

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is shown as vendor No.1 in the said agreement was the absolute owner of the property in terms of the Deed of Gift dated 18.10.2002 that had been executed by none else than her husband Sri Narasimhaiah as mentioned therein. It may be that as an abundant caution, petitioner herein had got husband of Ramakka and her son to be shown as vendors, that by itself would not in the light of the aforesaid clause in the agreement would make them vendors/owners of the said property.

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Another aspect of the matter to be seen is, that respondent No.2 K.B. Ganapathi Bhat, claims to have purchased the property in terms of Deed of Sale dated 04.09.2014 which is subsequent to the execution of the

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Sale Deed by the Executing Court in favour of the petitioner on 15.03.2013. The said Deed of Sale is stated

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to have been executed by the said Sri Narasimhaiah and Sri Babu after obtaining a Deed of Cancellation of Gift by the said Smt. Ramakka on 12.08.2013 which is also subsequent to the execution of the Deed of Sale by the Executing Court in favour of the petitioner. Clearly, neither Ramakka nor her husband Naraismhaiah had any right over the property which had already been conveyed in favour of petitioner in the manner known to law.

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The Executing Court, even while exceeding its jurisdiction by travelling beyond the decree has not adverted to this aspect of the matter. Further, the Executing Court has called upon respondent No.2 on its own to file an application seeking cancellation of the Sale Deed dated 15.03.2013 executed by it in favour of the petitioner. Such direction reads as under:

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"In the present Execution Petition, Court sale deed is already executed by this Court through the then officer of this court on 15.03.2013. Hence, JDR No.2 is directed to file necessary application to get cancel the sale deed……"

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Such a direction apart from being illegal, and contrary to factual aspect of the matter could not have been passed. When the Executing Court in the first instance rejected the application of the petitioner to implead respondent No.2 as proposed judgment debtor No.2 and by the same breathe could not have directed the very same person referring him to judgment debtor No.2 to file an application seeking cancellation of Deed of Sale. This Court takes serious exception to this procedure and method adopted by the Executing Court. Clearly the Executing Court has traveled beyond the decree and has exceeded its jurisdiction and the impugned orders, therefore, unsustainable and are liable to be set aside. Hence, the following:

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ORDER

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(i) Petition is allowed.

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(ii) The impugned orders are set aside. The Deed of

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sale dated 15.03.2013 executed by the Court is restored. Execution Petition/Case is restored to its

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original file and Executing Court is directed to proceed in accordance with law for consideration of delivery of possession and pass appropriate orders in accordance with law within sixty days from the date

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of receipt of the certified copy of this order.

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Sd/(M.G.S. KAMAL) JUDGE

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tsn* List No.: 1 Sl No.: 1

Sri Vadiraja D v. Smt Ramakka

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Sri Vadiraja D v. Smt Ramakka

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