Avinash Chinchalkar Vs Smt Vijaya

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NC: 2025:KHC:9525 WP No. 48021 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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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. 48021 OF 2017 (GM-CPC)

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BETWEEN:

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AVINASH CHINCHALKAR S/O SRIKRISHNA CHINCHALAKAR, AGED ABOUT 35 YEARS R/AT MAGAN GOLDEN METRO APARTMENTS, FLAT NO.TL 13, 81, NAIDU LAYOUT, CHIKKALASANDRA BANGALORE-560 061.

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…PETITIONER

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(BY SRI. KRISHNAMOORTHY D., AND SRI. ASHISH RAM D., ADVOCATES)

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AND:

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SMT VIJAYA

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D/O LATE UGGAPPA MOOLYA,

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Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA

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AGED ABOUT 56 YEARS R/AT MANJOTTI COMPOUND, NEAR GOKARNANATHA TEMPLE, KUDROLI, MANGALORE-575 003. DEAD BY LRS.

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1(a) P.SHIVAPPA SALIAN S/O LATE AITHAPPA AGED ABOUT 81 YEARS

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1(b) SMT.VEENA D/O P.SHIVAPPA SALIAN AGED ABOUT 41 YEARS

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NC: 2025:KHC:9525 WP No. 48021 of 2017

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1(c) SMT.VIDYA D/O P.SHIVAPPA SALIAN AGED ABOUT 37 YEARS

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ALL ARE R/AT NO.8/2/130 SHREE VIGNESHWARA JYOTHISHALAYA MANJOTTI COMPOUND NEAR GOKARANANATHA TEMPLE KUDROLI, KODIALBAIL, MANGALURU -575003

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SMT PUSHPA W/O HARISHCHANDRA AGED ABOUT 47 YEARS

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RAKSHITH MOOLYA S/O HARISHCHANDRA AGED ABOUT 21 YEARS

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MISS RASHNI MOOLYA D/O HARISHCHANDRA AGED ABOUT 19 YEARS RESPONDENT NOS.2 TO 4 R/AT E24B,VYASANAGAR, BEHIND KPT, MANGALORE-575 004.

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MEENAKSHI W/O THIMMAPPA BANGERA, AGED ABOUT 52 YEARS R/AT SHAMPAL HOUSE, KOTEKAR POST, PILAR,KOTEKAR-575 022.

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HEMAVATHI W/O NARAYAN, AGED ABOUT 50 YEARS R/AT ATTAVARA, BABU GUDDE, MANGALORE-575 001.

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VIMALA W/O MADHAVA, AGED ABOUT 48 YEARS R/AT NEAR KADRI TEMPLE KADRI,MANGALORE-575 001.

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SUDHEER KUMAR S/O LATE SUJATHA, AGED ABOUT 41 YEARS. R/AT G.S.POOJARY COMPOUND, URVA STORES,ASHOKA NAGAR, MANGALORE-575 006.

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MAHESH KUMAR S/O LATE SUJATHA, AGED ABOUT 39 YEARS R/AT G.S.POOJARY COMPOUND, URVA STORES, ASHOKA NAGAR MANGALORE-575 006.

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DINESH KUMAR S/O LATE SUJATHA, AGED ABOUT 37 YAERS R/AT G S POOJARY COMPOUND, URVA STORES, ASHOKA NAGAR, MANGALORE-575 006.

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GURUPRASAD S/O LATE SUJATHA, AGED ABOUT 36 YEARS R/AT G S POOJARY COMPOUND, URVA STORES, ASHOKA NAGAR, MANGALORE-575 006.

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PRIYA D/O LATE SUJATHA, AGED ABOUT 34 YEARS R/AT G S POOJARY COMPOUND, URVA STORES, ASHOKA NAGAR, MANGALORE-575 006.

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SMT BABY SHET W/O ASHOK SHET, AGED ABOUT 45 YEARS R/AT NEAR KASHI SADAN, DONGARAKERY, KODIYALBAIL POST, MANGALORE-575 001.

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R SAUNDARAJAN S/O RAMASWAMY, AGED ABOUT 52 YEARS R/AT DONGARAKERY, KODIYALBAIL POST, MANGALORE-575 001.

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MRS KANCHANA W/O R SAUNDARAJAN, R/AT DONGARAKERY, KODIYALBAIL POST, MANGALORE-575 001.

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PRAKASH S/O JANARDHANA SHET, AGED ABOUT 55 YEARS R/AT URVA, MANGALORE-575 006.

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…RESPONDENTS

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(BY SRI. SUSHMITHA SURESH, ADVOCATE FOR R1(a); R2, R3, R5, R7, R8, R13 SERVED AND UNREPRESENTED V/O DATED 7.2.2024 NOTICE TO R9 & R12 HELD H/S, V/O DATED 07.02.2024 PETITION DISMISSED AGAINST R10 AND R11 AS ABATED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER IMPUGNED DATED 03.10.2017 PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM MANGALORE IN EXECUTION PETITION NO.92/2005 PRODUCED AT ANNEXURE-H AND ALLOW THE W.P. AND ETC.

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

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NC: 2025:KHC:9525 WP No. 48021 of 2017

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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 sought to implead himself as an objector in Ex.No.92/2005 arising out of decree in O.S.No.141/1995 is before this Court aggrieved by the order dated 03.10.2017 produced at Annexure-H by which the Executing Court has appointed an Advocate Commissioner to execute deed of sale in favour of respondent No.1 herein who is the plaintiff/decree holder, now since deceased represented by her legal representatives.

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Brief facts of the case are that original respondent No.1-Smt.Vijaya had filed the above suit in O.S.No.141/1995 against defendants/respondents 2 to 13 for relief of declaration and direction against the defendants to execute deed of sale in favour of said Smt.Vijaya, the plaintiff in the said suit to an extent of 2/7^th undivided share, right, title and interest in the plaint `B' schedule property, after cancelling deed of sale dated 24.09.1993 and another deed of sale dated 13.01.1994 that has been executed by the respondents 2 to 13 herein. The said suit came to be decreed by judgment and decree dated

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NC: 2025:KHC:9525 WP No. 48021 of 2017

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07.01.2005. Judgment and decree passed therein had attained finality. Seeking execution of the said decree Smt.Vijaya, respondent No.1 filed execution petition in Ex.No.92/2005.

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Petitioner who is the purchaser of the very same property from the purchaser/transferee of the defendants was impleaded as respondent No.3 in the said execution proceedings.

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The petitioner filed counter/objections to the said execution petition contending interalia that he is the bonafide purchaser of the property without knowledge of the pendency of the suit in O.S.No.141/1995. That the deed of sale of his vendor has been executed by none other than the aforesaid Smt.Vijaya along with respondent No.13-Smt.Baby Shet. That petitioner had filed a original suit in O.S.No.834/2011 for declaration and injunction and said suit was partly decreed by Judgment and decree dated 22.02.2017 in which though relief of declaration was rejected and relief of permanent injunction restraining the defendants therein not to dispossess the petitioner without due process of law was granted. As against which the petitioner has filed regular appeal in R.A.No.66/2017

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and a cross appeal by respondent No.1 as against grant of permanent injunction has been filed and the same is pending consideration. That Smt.Baby Shet has also filed regular appeal in R.A.No.68/2017 as against the aforesaid Judgment and decree dated 22.02.2017 passed in O.S.No.834/2011.

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In the aforesaid factual background petitioner filed an application under Order 21 Rule 29 CPC seeking stay of further proceedings in the execution petition, in view of he having filed regular appeal challenging the Judgment and decree passed in O.S.No.834/2011. That the said application came to be rejected by the Executing Court by order dated 13.09.2017 and a month thereafter by the impugned order the Executing Court has issued Commissioner warrant appointing an Advocate Commissioner to execute deed of sale in favour of Smt.Vijaya, in terms of the Judgment and decree passed in O.S.No.141/1995.

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Learned counsel for petitioner submits that if in the event of deed of sale as directed by the Executing Court in the impugned order is executed in favour of Smt.Vijaya, original respondent No.1/plaintiff since deceased by legal

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NC: 2025:KHC:9525 WP No. 48021 of 2017

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representatives, the appeal filed by the petitioner in R.A.No.66/2017 would become infructuous causing irreversible injustice and prejudice to the petitioner. Hence seeks for allowing of the petition setting aside the order and to stay further proceedings in the Ex.No.92/2005.

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Per contra learned counsel appearing for the original respondent since deceased by the legal representatives submit that in terms of Rule 102 of Order 21 CPC a purchaser pendente lite has no locus to oppose the execution proceedings. Since the petitioner herein had purchased portion of the property which was to be conveyed in favour of the original respondent No.1-Smt.Vijaya admittedly during the pendency of the suit, has no locus to oppose the execution proceedings. He further submits that all the contention that were raised by the petitioner in his suit in O.S.No.834/2011 have been negated leaving no scope for another round of enquiry in the current execution proceedings. Petitioner cannot have luxury of two enquiries one having been completed other one to begin afresh. He submits taking note of these two aspects of matter, trial Court has rightly declined the request of the petitioner to stay the proceedings and has rightly

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proceeded to issue Advocate Commissioner warrant, warranting

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no interference at the hands of this Court.

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Heard and perused the records.

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The original respondent No.1/plaintiff in the suit in O.S.No.141/1995 is claiming her right in respect of the suit property in terms of the decree passed in the said suit including execution proceedings, while the petitioner herein claims to have purchased the very same property under the deed of sale dated 05.08.1998 albeit the same having been executed during pendency of the said suit in O.S.No.141/1995. No doubt though the suit filed by the petitioner in O.S.No.834/2011 has been partly decreed while rejecting the relief for substantial claim, admittedly an appeal in R.A.No.66/2017 filed by the petitioner herein is still pending consideration in which allegation of collusion between Smt.Vijaya- original respondent No.1 and Smt.Baby Shet- respondent No.13 is made.

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A regular appeal is continuation of a suit. In that view of the matter though there is every justifiable ground urged by the petitioner to stay further proceedings of the execution until disposal of said regular appeal, which has been

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NC: 2025:KHC:9525 WP No. 48021 of 2017

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declined and rejected by the Executing Court, in fitness of things this Court is of the considered view the present writ petition be disposed of with the following directions:

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ORDER

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The Executing Court may proceed further by executing the deed of sale in terms of the decree in O.S.No.141 of 1995 in favour of Smt.Vijaya, the original respondent No.1 since deceased now represented by her legal representatives as directed in the impugned order, subject to condition that such execution of deed of sale and conveyance of title would come into effect only after disposal and subject to the result of appeal in R.A.No.66/2017 filed by the petitioner pending consideration between the very same parties.

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Since the petitioner claims to have put up construction of residential house subsequent to he purchasing the said property under the impugned deed of sale which fact is not disputed by the original respondent No.1 since deceased by LRs., petitioner is

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NC: 2025:KHC:9525 WP No. 48021 of 2017

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permitted to occupy the same until dispossessed in accordance with law as decreed in the suit in O.S.No.834/2011, subject to outcome of appeal in R.A.No.66/2017.

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It is made clear parties are at liberty to seek such other remedy including damages if any in furtherance to and after disposal of appeal in R.A.No.66/2017.

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In view of the aforesaid peculiar fact situation of the matter and upon the request of the learned counsel for the parties, Senior Civil Judge, Mangaluru is hereby directed to dispose of the regular appeal in R.A.No.66/2017 as expeditiously as possible within an outer limit of six months from the date of receipt of certified copy of this order.

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

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SBN

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List No.: 1 Sl No.: 22

Avinash Chinchalkar v. Smt Vijaya

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Avinash Chinchalkar v. Smt Vijaya

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