IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8th DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.303 OF 2019 (GM-CPC) BETWEEN:
1. B.M.Venkatalakshmamma, W/o Late G.C.Narasaiah, Aged about 78 years, 2. S.L.N.Swamy S/o G.C.Narasaiah, Aged about 55 years, 3. Nomito Kamdar, W/o S.L.N.Swamy, Aged about 45 years, All are residing at No.142, 69th Cross, 5th Block, Rajajinagar, Bangalore – 10. … Petitioners (By Sri.Ravivarma Kumar, Sr. Advocate for Sri. Nitin.R., Advocate) AND:
1. P.M.Gopi, S/o late Mylaraiah, Aged about 38 years, Residing at No.24, 2nd Cross, SBM Colony, Mathikere, Bangalore – 560 054.
2. Sri.Gururaj G., Aged about 29 years, Residing at Sri.Raghavendra Krupa, No.156/9S, (Old No.186), 26th Cross, Kempamma Layout, Hulimavu, Bannerughatta Road, Bangalore – 560 076. … Respondents (By Sri.P.M. Siddamallappa, Advocate for R1 for M/s. Mylaraiah Associates, Advocates) - - -
This Writ Petition is filed under Article 227 of the Constitution of India, praying to quash the order dated 21.12.2018 passed by the learned City Civil Judge [CCH-8] Bangalore in Ex 411/2012 in rejecting the application filed by petitioners/objections under Order XXI Rule 101 read with Section 151 of CPC herewith produced at as Annexure – E and consequently allow the said application and etc., This Petition coming on for Preliminary Hearing this day, the Court made the following:-
ORDER Heard Sri.Ravivarma Kumar, learned Senior Counsel for Sri.Nitin.R, learned counsel for the petitioners.
Learned counsel Sri.P.M.Siddamalappa has filed vakalath today praying to represent respondent No.1. Accordingly, he is permitted to represent respondent No.1. Requirement of service on respondent No.2 is dispensed with.
2. Heard the learned counsel for the petitioners on the question of admission.
3. Petition is admitted and heard finally on the basis of the material available on record with the consent of both the parties.
4. In this petition under Article 227 of the Constitution of India, the petitioners have assailed the validity of the order dated 21.12.2018 by which the application filed by the petitioners for framing the issues under Order XXI Rule 101 of the Code of Civil Procedure, 1908, has been dismissed by the trial Court.
5. Learned counsel for the petitioners placing reliance on a judgment dated 09.08.2012 passed by a Bench of this Court in RFA No.1288/2003 and connected appeals submitted that the trial Court ought to have framed the issues in order to effectively adjudicate the controversy involved in the suit. He invited the attention of the Court to two paragraphs 32 to 36 of the aforesaid decision.
6. On the other hand, learned counsel for the contesting respondent No.1 submits that he has no objection to framing of issues provided, the Executing Court concludes the proceedings in a time bound manner and the petitioner co-operates in the early conclusion of the proceedings.
7. In view of the aforesaid submission, the learned Senior Counsel submits that the petitioners shall not seek any adjournments unnecessarily and that he shall co-operate for early disposal of the suit.
8. I have considered the submissions made by the learned counsel for the parties.
9. In view of the decision of the full Bench of this Court in V.K.Rama Setty V/s A.Gopinath reported in AIR 1998 KAR 186 in which reliance was placed on the judgment of the Supreme Court in the case of Noorduddin V/s Dr.K.L.Anand reported in AIR SCW 5093, the impugned order suffers from the error apparent on the face of record. Accordingly, it is quashed and set aside. The Executing Court is permitted to frame issues with regard to the controversy involved between the parties. It is needless to state that the petitioners shall co-operate with the trial Court for the early decision and shall not seek for unnecessary adjournments as agreed by them and as has been already directed by a Bench of this Court in an appeal.
Accordingly, the petition is disposed of.
Sd/- JUDGE rs