IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.11171 OF 2019 (GM-CPC) BETWEEN:
C. NARAYANASWAMY S/O LATE SHANKARAPPA AGED ABOUT 70 YEARS No.14, NARANAPPA FARM LAYOUT GEDDALAHALLI, BANGALORE-94.
(BY SRI. SHARATH S. GOWDA, ADVOCATE) AND:
... PETITIONER 1. K.S. JAYAVANI D/O LATE SRINIVAS MURTHY W/O K. RAJA RAO AGED ABOUT 45 YEARS R/AT. UTTARADIMATH FORT RAYADURGA-515865.
2. K.S. SUDHARSHAN - DEAD S/O LATE SRINIVASA MURTHY AGED ABOUT 38 YEARS TILAT 73, HARINAGARA KATHANUR VILLAGE PANCHAYAT BANGALORE-02.
3. K. RAMABAI @ S. LAKSHMI W/O LATE R. SATHYANARANA RAO AGED ABOUT 69 YEARS S. GURUPRASANNA DOOR NO.9 HANUNAHTAPPA BUILDING ANJANEYA LAYOUT VIDYARANYAPURA, (THINDLU) BENGALURU-560097.
4. K. THULASI W/O LATE SRINIVASAMURTHY AGED ABOUT 59 YEARS No.1978, 8TH CROSS KUMARASWAMY LAYOUT 2ND STAGE, BENGALURU-560078.
5. UMA DEVI @ UMA RAO K W/O SURYANARAYANA RAO AGED ABOUT 55 YEARS No.64, 13TH MAIN RAGHAVENDRA BLOCK SREENAGAR, BENGALURU-560050.
6. K. SAVITHRI W/O NAGARAJA AGED ABOUT 50 YEARS No.860, 1ST MAIN, 2ND CROSS KONANAKUNTE, BENGALURU-62.
7. K. LEELAVATHI W/O LATE CHANDRASHEKAR AGED ABOUT 48 YEARS D.No.5156, 4TH CROSS RAILWAY STATION, GUBBI TALUK TUMKUR-572216.
8. KAMALA R W/O LATE K. RAGHAVENDRA AGED ABOUT 58 YEARS D.No.17, GAVIGANGADHARA DEVASTANA GAVIPURAM CHATRA BLOCK-560019.
9. K. RAVI S/O LATE KRISHNAMURTHACHAR AGED ABOUT 46 YEARS D.No.39, 1ST MAIN, 24TH CROSS MARUTHINAGAR, YELAHANKA BENGALURU-64.
10. K. PRASAD S/O LATE KRISHNAMURTHACHAR AGED ABOUT 41 YEARS AREHALLI, AGS LAYOUT BENGALURU-560061.
AS PER ORDER DATED 13-11-2019 RESPONDENT Nos.1 & 4 ARE CLAIMED TO BE CLASS-II HEIRS OF DECEASED R2 AS HE IS NOT SUCCEEDED BY ANY CLASS-I HEIR ... RESPONDENTS (BY SRI. RAVINDRA D.K. ADV., FOR SRI. R. KOTHWAL, ADV., FOR R1, R3 & R10 R4 SERVED, R5 SERVED, R7 TO R8 SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 5.2.2019 PASSED IN EX. PETITION 2/1993 BY PRINCIPAL CIVIL JUDGE & JMFC, DEVANAHALLI, WHEREBY THE APPLICATIONS FILED BY DECREE HOLDERS UNDER ORDER 6 RULE 17 READ WITH SECTION 151 AND 153 OF CPC SEEKING PERMISSION TO ADD AN ADDITIONAL PRAYER IS ALLOWED WITHOUT CONSIDERING THE OBJECTION FILED BY THE JUDGMENT DEBTOR, VIDE ANNEXURE-A & ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The chequered history of this case prompts this Court to reproduce with agony, what the judicial committee of the Privy Council, a century & half ago had ridiculed the judicial process in India, in the case of THE GENERAL MANAGER OF THE RAJ DURBHANGA VS. MAHARAJAH COOMAR RAMAPUT SINGH IN MOORE’S INDIAN APPEALS (1871-72), VOL.14, PAGE 605=17 W.R.459; the said ridiculed was phrased as under:
“These proceedings certainly illustrate what was said by Mr.Doyne, and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a Decree…”
2. The petitioner being the judgment debtor in Execution Petition No.2/1993 is laying the challenge to the order dated 05.02.2019, a copy whereof is at Annexure-A, operative portion of which, reads as under:
“The I.As’ filed by the decree holder of L.R. No.1’s and decree holders No.3 to 10 under Order 6 Rule 17 r/w. Sections 151 &n 153 of C.P.C. are hereby allowed with cost of Rs.1,000/- and permitted to make the proposed amendment.
For amendment and amended petition by 18.02.2019.”
After service of notice, respondent-decree holders having entered appearance through their counsel, resist the writ petition.
2. BRIEF FACTS OF THE CASE:
a) the predecessors of the parties herein were the plaintiffs and the respondents in a suit for a decree of redemption of mortgage; the said suit in O.S.No.74/1975 was decreed on 13.12.1976 and preliminary decree for redemption of mortgage was granted; the challenge to the said decree firstly in R.A.No.26/1997 & secondly in R.S.A.No.551/78 came to be negatived, and thus the decree has attained finality there being no further challenge;
b) execution No.2/1993 having been dismissed on 15.09.2003 on the ground that the decree holder had not obtained the final decree, the same came to be set aside by this Court on 26.09.2003 in C.R.P.No.2929/2003 with a heavy cost of Rs.20,000/- (Rupees Twenty thousand) only and with a direction to the Executing Court to accomplish the executing proceedings within six months; the suit attained finality there being no further challenge;
c) petitioners decree holders FDP No.1/2004 was dismissed on 22.06.2005 on the ground of limitation during the pendency of above CRP and therefore, another CRP No.544/2005 was filed, which came to be allowed by this Court on 07.12.2010; the Review Petition No.1001/2012 filed by the JDRs’ seeking review of order in CRP No.2929/2003 too was dismissed; and, d) the executing court vide order dated 05.08.2015 allowed impleadment of the LRs of the deceased-decree holder and later the Execution Petition was permitted to be amended vide impugned order dated 05.02.2019 by incorporating the prayer “I. to order the judgment debtor to reconvey the mortgage property to the decree holder at his costs free from the mortgage”. This is put in challenge in its jurisdiction.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of considered opinion that the writ petition should be dismissed with exemplary cost for the following reasons:
a) the redemption decree was granted on 13.12.1976; the challenge in appeal in RA 26/77 came to be dismissed on 16.01.1978; further challenge in RSA 551/78 came to be negatived by this Court on 08.10.1990; the decree holders CRP Nos.2929/2003 & 544/2005 against dismissal of Execution Petition & the FDP succeeded before this Court; review petition of the JDRs against the same was also rejected on 10.10.2012; thus because of the abuse of judicial process by the JDRs, the fruits of decree even now have not reached the hands of the victorious parties in the suit of the year 1976; more than four decades have lapsed and original parties to the suit have died too;
b) this Court in decree holders CRP No.2929/2003 vide judgment dated 07.12.2010 had ordered as under:
“I) The impugned order is unsustainable and it is set aside.
II Exn.Peittion No.2/93 is restored to the file of the executing court. The executing court is directed to proceed further in the matter and direct the respondent-judgment debtor to redeem the property in terms of the decree by recording discharge in favour of the decree holders.
III) The executing court shall also issue appropriate process for delivery of vacant possession of the property in question to the petitioners-decree holders.
IV) Considering the nature of lis and the period of time spent due to the litigious conduct of the respondent, cost of Rs.20,000/- is imposed on him.
V) The trial court shall expedite the proceedings and dispose it in accordance with law within an outer period of six months from the date of receipt of a copy of this order.
The revision petition is disposed of in the terms stated above.”
This order has attained finality against judgment debtors and the same having been dismissed.
4. The contention of the JDR’s that the amendment vide impugned order for incorporating the prayer for re-conveying the mortgage property would not have been sanctioned by the Executing Court, decades having lapsed after filing of the Execution petition is liable to be rejected because it was the judgment debtors who have been obstructing the execution without any justification as already observed by this Court in CRP NO.2929/2003, there being no contribution of the decree holders to the brooking of this delay, if at all it is one;
countenancing such a contention taken up by the unscrupulous judgment debtors virtually amounts to placing premium on their un-cautionable conduct.
5. The contention that such an amendment virtually changes the nature of the execution petition again is liable to be rejected because the decree holders had already prayed in the execution petition “to put the decree holders in possession of the suit schedule properties”; added to this, this Court in CRP No.2929/2003 vide judgment dated 07.12.2010 had specifically directed “The executing court shall also issue appropriate process for delivery of vacant possession of the property of decree-holders”; what is now permitted to be incorporated by way of amendment thus does not change the nature of the execution case at all and it is only amplificatory of what was already prayed for.
6. As already mentioned above O.S.No.74/75 was decreed on 13.01.1976; R.A.26/77 was dismissed on 16.01.1978 & RSA 551/78 was negatived on 08.10.1990; execution 2/1993 was unconscionably resisted at every step and that was found fault with by this Court twice and an exemplary cost of Rs.20,000/- (Rupees twenty thousand) only was levied on the judgment debtors nearly a decade ago i.e., 07.12.2010; the judgment holders were stigmatized by Co-ordinate Bench of this Court as having “litigious conduct”; the stand of the judgment debtors appears to be “come what may, we shall not deliver back the property”; even after all these litigations where the judgment debtors lost their case, here too at para 3 of the writ petition they again assert that the transaction dated 21.08.1951 was not a mortgage but a sale; this virtually amounts to abuse of the process of the court, if not the borders the contempt of Court. In the considered opinion of this Court, this is a classic case for levying an exemplary cost in favour of each of the respondents/decree holders herein.
In the above circumstances, this writ petition is being thoroughly misconceived and infected with enormous un-cautionability, is dismissed with a cost of `25,000/- (Rupees Twenty Five Thousand) only payable to each of the respondents.
The Executing Court is directed to accomplish the executing proceedings within a period of two months, with police assistance, if need be, and to report compliance to the Registrar General of this Court.
Sd/- JUDGE MDS/-