IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL REVISION PETITION NO.264 OF 2014(EX) BETWEEN:
GOPALAKRISHNA SHENOY S/O LATE VITTAL SHENOY, AGED ABOUT 42 YEARS, R/AT ADYANADKA HOUSE, KEPU VILLAGE, BANTWAL TALUK, D.K. DISTRICT PIN – 574224. ... PETITIONER (BY SRI. G RAVISHANKAR SHASTRY, ADVOCATE) AND:
1. SUMATHI V SHENOY W/O LATE VASUDEVA SHENOY, AGED ABOUT 64 YEARS, 2. JAYASHREE ACHARYA, S/O RAMACHANDRA ACHARYA, AGED ABOUT 44 YEARS, 3. RAVIKALA, W/O UPENDRA BHAT, AGED ABOUT 41 YEARS.
4. YOGISH, S/O LATE VASUDEVA SHENOY, AGED ABOUT 39 YEARS.
5. MAITHRI, D/O LATE VASUDEVA SHENOY, AGED ABOUT 36 YEARS.
ALL ARE RESIDING AT ADYANADKA HOUSE, KEPU VILLAGE, BANTWAL TALUK, D.K DISTRICT, PIN – 574224.
6. NARAYANI@ RUKMA BAI W/O LATE VITTAL SHENOY, AGED ABOUT 69 YEARS.
7. VIJAYA GURUDATHA SHENOY, S/O LATE VITTAL SHENOY, AGED ABOUT 40 YEARS.
8. DEVANANDA SHENOY, S/O LATE VITTAL SHENOY, AGED ABOUT 39 YEARS.
9. RATHIKALA, W/O ANANTHA KINI, AGED ABOUT 37 YEARS.
10.SHRIKRISHNA SHENOY, S/O LATE VITTAL SHENOY, AGED ABOUT 34 YEARS.
11.GOVINDARAYA SHENOY, S/O LATE VITTAL SHENOY, AGED ABOUT 33 YEARS.
12.KALPANA SURESH KINI, D/O.LATE VITTAL SHENOY, AGED ABOUT 31 YEARS.
13.BINDU MALA, W/O JAYAPRAKASH, AGED ABOUT 29 YEARS.
14.CHANDRICA, D/O VITTAL SHENOY, AGED ABOUT 28 YEARS.
ALL ARE R/AT ADYANADKA HOUSE, KEPU VILLAGE, BANTWAL TALUK, D.K.DISTRICT, PIN – 574224. ...RESPONDENTS (BY SRI.VISHWANATH POOJARY K, ADV. FOR R4 R1, R4, R3, R5 SERVED, R6-R14 NOTICE DISMISSED) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 17.12.2013 PASSED IN EX.NO.16/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., BANTWAL, ACCEPTING THE DELIVERY AND REJECTING THE OBJECTION OF THE JDR THEREIN AND CLOSING THE PETITION.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Though the civil petition is listed for admission, in view of consent of the learned counsel for the petitioner and the respondent the matter is heard on merits.
2. This petition is filed for setting aside the order dated 17.12.2013 in Execution Case No.16/2010 passed by the Senior Civil Judge and JMFC at Bantwal.
3. The facts leading to this petition are that in pursuance of the preliminary decree, the final decree proceedings were initiated wherein the Commissioner’s Report deciding the shares is accepted as such the shares of the decree holder and the judgment debtors are demarcated as shown in the sketch. Thereafter the execution petition was filed which is numbered as EX.No.16/2010.
4. On 17.12.2013 on hearing both side and based on the report submitted by the bailiff and the delivery report of the JDR No.2 Gopalakrishna Shenoy who was present at the time of delivery of possession, the Executing Court has passed the order accepting the delivery report and the petition is closed.
5. The main grievance of the counsel for petitioner is that on 10.01.2013 i.e., on the date of delivery the JDR No.2 was present on the spot and his signature was taken, but the signature of JDR No.2 cannot be construed as the acceptance by the JDR No.2 for delivery of possession as per the decree. The rejection of the objections by the Executing Court is erroneous and not justified.
6. The counsel would strenuously contend that on the date of delivery the petitioner - JDR No.2 had given application to the surveyor objecting for the measurements to be done at the spot. He has raised objection that the measurement has to be done in presence of the ADLR but the same was not considered. But according to application submitted, the JDR No.2 has only raised the objection that it is not possible to measure the property as there is a wall in between the buildings situated in Survey Line Nos.135 and 82 and 94 and 59. In view of survey conducted on the said date, the aforesaid contention does not hold good.
7. The next contention is that the JDR No.2 had raised the objection regarding delivery of excess property, to the Decree holder; but no records placed in this regard. Ultimately the Court has to rely on the report submitted by the bailiff and surveyor. The trial Court has observed that as per delivery report JDR No.2 Gopal Krishna Shenoy was present at the time of delivery of possession and he has affixed his signature. So there is no reason to refuse to accept the delivery. Under these circumstances, there are no valid reasons to admit the revision petition. Hence the revision petition is dismissed.
8. The counsel for the petitioner submitted that as per the order dated 25.08.2016 litigation cost of Rs.10,000/- was deposited in the Court. The same may be refunded.
9. Considering the submission of the counsel, the said litigation cost is ordered to be refunded to the counsel for the petitioner.
Sd/- JUDGE Ykl