IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION No.48286/2018 (GM-CPC) BETWEEN B KASHINATH CHOWDHARY, S/O BYDAGI GANGADHARAPPA, AGED ABOUT 74 YEARS, R/AT TILAK NAGAR, SAGARA, SHIVAMOGGA DISTRICT, PIN CODE-577 201. ... PETITIONER (BY SRI. NAGARAJ S JAIN, ADV.) AND 1. SMT SAVITRAMMA, W/O K.MUKUNDAPPA, AGED ABOUT 70 YEARS, (Respondent No.1 deleted vide order dated.02.01.2019) 2. SRI.GOVINDA S/O K.MUKUNDAPPA, AGED ABOUT 47 YEARS, 3. SRI. DATTATREYA, S/O K.MUKUNDAPPA, AGED ABOUT 40 YEARS, 4. SMT. SUMA D/O LATE K.MUKUNDAPPA, AGED ABOUT 35 YEARS, 5. SMT. VAANI, D/O LATE K.MUKUNDAPPA, AGED ABOUT 35 YEARS, ALL RESPONDENT NOS.1 TO 5 ARE RESIDENTS OF JAI BHARATHI RICE AND FLOUR MILL, HOSPETE HAKKALU, SORABA TOWN, SHIVAMOGGA DISTRICT, PIN CODE-577 429 6. G.RANGANATHA CHOWDARY, S/O LATE BYDAGI GANGADHARAPPA CHOWDARY, AGED ABOUT 72 YEARS, R/AT TILAKA NAGAR, SAGAR TOWN, SHIVAMOGGA DISTRICT PIN CODE-577 201. ... RESPONDENTS (BY SRI. M S HARISH KUMAR, ADV. FOR R2 TO R5, V/O DATED.02.01.2019 R1 DELETED.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS RELATING TO EX.NO.45/2011 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE & JMFC, SAGARA AND UPON PERUSAL BE PLEASE TO AND SET ASIDE THE IMPUGNED ORDER DATED 09.10.2018 PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE & JMFC, SAGARA ON I.A.NO.XIX IN EX.CASE NO.45/2011 AT ANNEXURE-A ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Mr.Nagaraj S.Jain, learned Counsel for the petitioner. Mr.M.S.Harish Kumar, learned counsel for respondent nos. 2 to 5.
Petition is admitted for hearing. With the consent of the parties, it is taken up for final hearing.
2. In this writ petition under Article 227 of the Constitution, the petitioner has assailed the order dated 9.10.2018 passed by the trial Court by which, the trial Court has accorded permission to the Court Commissioner to execute a registered redemption deed in favour of decree holder.
3. Learned counsel for the petitioner submits that aforesaid order has been passed without affording opportunity of hearing to the petitioner and in violation of procedure laid down under Order XXI Rule 34 of Civil Procedure Code,1908 (herein after referred as the ‘Code’ for short) and therefore, the same cannot be sustained in the eye of law.
4. On the other hand, learned counsel for the respondents submits that, decree holder had submitted draft of the redemption deed before the executing Court to which the petitioner has filed objections, the arguments are being heard and the case is posted for delivering Judgment on 11.01.2019.
5. I have heard the submission made by the learned counsel for the parties.
6. So far as submission made by the learned counsel for the petitioner that the impugned order is passed without affording opportunity of hearing to him is concerned, suffice it to say that there was a direction to the executing Court to execute a deed of redemption on 11.03.2013 to the petitioner and since, the aforesaid order was not complied with by the petitioner, the trial Court, in terms of order dated 09.10.2018 and in pursuance of the purported exercise of powers under Order XXI Rule 34(4) of Code which provides that the Judge or such Officer as may be appointed in this behalf shall execute the document so delivered, has passed the order. So far as objection with regard to the draft redemption deed, suffice it to say that objections to the draft redemption deed have already been filed and the same has to be considered.
7. Accordingly, the petition is disposed of with a direction to the executing Court to decide the objections filed by the petitioner to draft redemption deed and thereafter proceed with the execution procedure in accordance with law.
8. Accordingly, the present petition is disposed of.
Sd/- JUDGE Sk/- CT-HR