IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.44871 OF 2019 (GM-CPC) BETWEEN:
1. SMT ASGHARI BANU W/O LATE ABDUL GAFOOR AGED ABOUT 57 YEARS 2. SMT RESHMA BANU D/O LATE ABDUL GAFOOR AGED ABOUT 38 YEARS 3. SMT RUBEENA BANU D/O LATE ABDUL GAFOOR AGED ABOUT 36 YEARS 4. SMT SEEMA BANU D/O LATE ABDUL GAFOOR AGED ABOUT 34 YEARS ALL ARE RESIDING AT VOLAKADU NO.76, BADAGU BETTU VILLAGE UDUPI TALUK UDUPI DISTRICT-576101.
(BY SRI FAYAZ SAB, ADVOCATE) AND:
SRI MAHESH BALLAL S/O N R BHOJARAJA BALLAL AGED ABOUT 52 YEARS R/A D.NO.1243 KRISHNAMURTHYPURAM MYSORE-570002.
(BY SRI T I ABDULLA, ADVOCATE) …PETITIONERS …RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS PERTAINING TO THE CASE OF THE PETITIONERS AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners bearing the judgment debtors, are invoking the writ jurisdiction of this court for assailing the order dated 11.09.2019, a copy whereof is at Annexure-A whereby their request for halting of the execution petition has been rejected by the learned II Addl. Civil Judge at Udupi.
2. After service of notice, the respondent-decree holder having entered appearance through his counsel, resists the writ petition.
3. I have heard the learned counsel for the parties and perused the Petition Papers. It is not in dispute that a case in W.P.No.19571/2017 between the parties is heard and reserved for judgment by a Co-ordinate Bench of this court; in the said writ petition, challenge is to the order made by the Land Tribunal under section 48A of the Karnataka Land Reforms Act, 1961, whereby the claim for grant of occupancy by to the petitioners herein, has been rejected; said claim pertains to the property in question.
4. The Division Bench of this Court in the case of State of Karnataka Vs. G.Lakshman, ILR 1987 KAR 2223, has held that the powers which a writ court exercises are of the nature of the authority or Tribunal whose proceedings are in challenge in the writ petition and therefore, all orders which the Tribunal or the authority can pass, can be passed by the writ court; it is preposterous to say what would be the judgment, when it is yet to be pronounced.
5. Justice of the case required that the Executing Court in exercise of power under Order XXI Rule 26 of CPC, ought to have granted reprieve to the petitioner-judgment debtor till after the pronouncement of the judgment in the aforesaid reserved matter; such a reprieve would have done justice to both the sides subject to they having say over the said judgment after it is rendered.
In the above circumstances, this writ petition succeeds in part; the impugned order is set at naught; the subject execution proceedings are halted subject to and till after the judgment in the aforesaid W.P.No.19571/2017 is pronounced by the Co-ordinate Bench of this Court.
The Executing Court after looking to the judgment to be pronounced, shall take a decision whether the execution should proceed expeditiously.
All contentions of the parties are kept open.
Sd/- JUDGE cbc