IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT WRIT PETITION No.28359 OF 2019 (GM-CPC) BETWEEN 1. NEW FOOTWEAR PALACE OLD COURT ROAD, DAVANAGERE-577 002, BY PROPRIETOR, FAREEDA, S/O. SIRAJ AHMED, AGED ABOUT 34 YEARS, RESIDING AT DOOR NO. 451, NEAR HASBHAVI CIRCLE, CHOWKIPET, DAVANGERE-577 001.
2. GOOD LUCK FOOTWEAR OLD COURT ROAD, DAVANAGERE-577 002, BY PROPRIETOR MEHABOOB BAIG, S/O. NAZEER BAIG, AGED ABOUT 35 YEARS, RESIDING AT NITUVALI, NEAR DURGAMBIKA TEMPLE, DAVANGERE-577 003.
3. SRI. MANJUNATHA BAGS & FOOTWEAR OLD COURT ROAD, DAVANGERE-577 002, BY PROPRIETOR DINESH NAYAKA, S/O. UMBALA NAYAK, AGED ABOUT 30 YEARS, RESIDING AT DOOR NO. 661, 7TH CROSS, NEAR ANJANEYA TEMPLE, S.M. KRISHNA NAGAR, DAVANGERE-577 001.
4. SRI KALA SHOE & FANCY STORES OLD COURT ROAD, DAVANAGERE-577 002, BY PROPRIETOR KASHINATHA, S/O. HARISH CHANDRAPPA, AGED ABOUT 36 YEARS, RESIDING AT DOOR NO.55, NEAR EWS QUARTERS, JALINAGAR, DAVANGERE-577 002.
5. KALABAG CENTRE OLD COURT ROAD, DAVANGERE-577 002, BY PROPRIETOR KALANDARA S/O. NOOR AHMED, AGED ABOUT 28 YEARS, RESIDING AT IMAMNAGAR, 1ST MAIN, 1ST CROSS, DAVANGERE-577 001.
6. SRI GURU KOTTURESHWARA HOTEL NEAR HARIHARA BUS STOP, P.B. ROAD, DAVANGERE-577 002, PROPRIETOR, S.CHANDRASHEKARAPPA, S/O. VIRUPAKSHAPPA, AGED ABOUT 54 YEARS, R/O. S.P.S. NAGARA, DOOR NO.1407, KONDAJJI ROAD, DAVANAGERE-577 589. ... PETITIONERS (BY SRI RAVI H.K., ADVOCATE) AND 1. SRI. PARASHURAMAPPA @ PARASHURAMA S/O. HANUMANTHAPPA HOVALE, AGED 67 YEARS, BUSINESS, HARIHARA TALUK, DAVANGERE-577 002.
2. SMT. RATHNA BHAI W/O. NAGENDRAPPA BONDADE, MAJOR, R/AT MURAKALA COMPOUND, BEHIND JAYASHREE TALKIES, HARIHARA, DAVANGERE-577 002.
3. SRI. B. N. TUKARAMAPPA S/O. NAGENDRAPPA BONDADE, MAJOR, R/AT MURAKALA COMPOUND, BEHIND JAYASHREE TALKIES, HARIHARA, DAVANGERE-577 002.
4. SMT. LAKSHMI BHAI D/O. NAGENDRAPPA BONDADE, MAJOR, R/AT MURAKALA COMPOUND, BEHIND JAYASHREE TALKIES, HARIHARA, DAVANGERE-577 002.
5. SMT. ANJANADEVI D/O. NAGENDRAPPA BONDADE, MAJOR, R/AT MURAKALA COMPOUND, BEHIND JAYASHREE TALKIES, HARIHARA, DAVANGERE-577 002.
6. SRI. B. NAGARAJA S/O. NAGENDRAPPA BONDADE, MAJOR, ATTENDER, R/AT JAYADEVA CIRCLE, DAVANGERE-577 002.
7. SMT. ANUSUYAMMA W/O. M.G.VEERUPAKSHAPPA, MAJOR, R/AT M.J.V. HALLO BRICKS, KAVADINAGARA HATTI, BEHIND WATER TANK, HOLALAKERE ROAD, CHITRADURGA-577 501.
8. SRI. SWAMY W/O. M.G.VEERUPAKSHAPPA, MAJOR, R/AT M.J.V. HALLO BRICKS, KAVADINAGARA HATTI, BEHIND WATER TANK, HOLALAKERE ROAD, CHITRADURGA-577 501.
9. C.IBBANI D/O. M.G.VEERUPAKSHAPPA, MAJOR, R/AT M.J.V. HALLO BRICKS, KAVADINAGARA HATTI, BEHIND WATER TANK, HOLALAKERE ROAD, CHITRADURGA-577 501.
10. SHREE. SHIVAMURTHY MURUGA SHARANARU, MAJOR, BRUHANMATTA, CHITRADURGA-577 502.
11. BHARATH BAG CENTRE PROPRIETOR-EJAZ, MAJOR, OLD COURT ROAD, DAVANGERE-577 002.
12. CLASSIC FOOTWEAR PROPRIETOR-BASHEER, MAJOR, OLD COURT ROAD, DAVANGERE-577 002.
13. NEW CLASSIC FOOTWEAR PROPRIETOR-YOUNUS, MAJOR, OLD COURT ROAD, DAVANGERE-577 002.
14. H.K.G.N. BEEDA CENTRE PROPRIETOR MUNAVARA, MAJOR, NEAR P.B.ROAD, OLD COURT ROAD, DAVANGERE-577 002.
15. H.K.G.N. FRUITS PROPRIETOR FAROQUE, MAJOR, NEAR P.B.ROAD, OLD COURT ROAD, DAVANGERE-577 002.
16. ADI-SHAKTHI HOTEL & BAKERY PROPRIETOR VEERUPAKSHA, MAJOR, HARIHARA BUS STOP, DAVANGERE-577 002.
17. R.A.FRUITS & R.A.BEEDA STALL PROPRIETOR JAMRUDHU, MAJOR, NEAR P.B.ROAD, OLD COURT ROAD, DAVANGERE-577 002.
18. SRI VEERABHADRESHWARA BEEDA STALL PROPRIETOR KARIBASAIAH, MAJOR, BUSINESS OPPOSITE TO VIJAYA BANK, P.B.ROAD, DAVANGERE-577 002.
19. KANAKA BAKERY & COOL DRINKS & TEA / COFFEE BAR PROPRIETOR, MAJOR, SOMASHEKARA, MAJOR, BUSINESS HARIHARA BUS STOP, P.B.ROAD, DAVANGERE-577 002.
20. MAHAVEERA SUGAR CANE JUICE PROPRIETOR PAPANNA, MAJOR, HARIHARA BUS STOP, P.B.ROAD, DAVANGERE-577 002.
21. K.N.FOOTWEAR PROPRIETOR KALANDARA, MAJOR, BUSINESS OLD COURT ROAD, DAVANGERE-577 002.
22. IRFANA FOOTWEAR PROPRIETOR ABDUL AKBAR, MAJOR, BUSINESS OLD COURT ROAD, DAVANGERE-577 002.
23. N.K.FOOTWEAR PROPRIETOR HAMEED AHAMED, MAJOR, BUSINESS OPPOSITE TO RAILWAY STATION, P.B.ROAD, DAVANGERE-577 002.
24. SRI. VINAYAKA HOTEL TEA STALL PROPRIETOR POORA RAMA, MAJOR, BUSINESS OPPOSITE TO RAILWAY STATION, P.B.ROAD, DAVANGERE-577 002.
25. LINGESHWARA SUGAR-CANE JUICE CENTRE PROPRIETOR LINGESHA, MAJOR, BUSINESS, P.B.ROAD, DAVANGERE-577 002.
26. VINAYAKA BEEDA STALLA PROPRIETOR T.N.VEDAMURTHY, MAJOR, BUSINESS, NEAR HARIHARA BUS STOP, P.B.ROAD, DAVANGERE-577 002. ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 08.02.2018 AT ANNEXURE-G PASSED BY THE COURT OF THE 1 ADDL. SENIOR CIVIL JUDGE & JMFC, DAVANAGERE REJECTING THE OBJECTIONS OF THE PETITIONERS TO THE MAIN PETITION IN EX.NO.128/2016 AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The impugned order apparently constitutes a decree by virtue of fiction of law enacted under Order XXI Rule 10 read with Section 47 of CPC,1908 and also under Rule 1 of Chapter 6 of High Court of Karnataka Rules, 1959, since petitioner is not party to the decree although he is arrayed as a party to the Execution Petition from which the said order emanates. Therefore, the writ petition ordinarily is not a right remedy and recourse can be had to the remedy of appeal after seeking leave of the appellate Court.
2. However, regard being had to the likely injury and hardship which the petitioners would be put to, if the impugned order is executed at once, and since they are being relegated to an alternate remedy, this Court directs the parties not to precipitate the matter in the execution process for a period of two weeks so that the availment of alternate remedy is facilitated.
It is needless to state that the appellate Court if and when the appeal is filed, shall take the decision independent of the observations made in this order.
Writ petition stands disposed off accordingly.
Sd/- JUDGE UN/Bsv