IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RDDAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION No.31818/2019(GM-CPC) BETWEEN:
SMT.KAMALAKSHI A W/O MANJUNATH, AGED ABOUT 39 YEARS, R/O SRI. RAGAVENDR NILAYA, HIG-28, D-BLOCK, 2ND STAGE, KHB COLONY, SHIVAMOGGA.
PIN-577201 . … PETITIONER (BY SRI H.MALTESH, ADVOCATE) AND:
SRI. SHIVAJI RAO S/O LATE GANESHAPPA, AGED ABOUT 73 YEARS, R/O TYAVARECHANAHALLI, KASABA HOBLI, SHIVAMOGGA, PIN-577201 ….RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENTIRE PROCEEDINGS ON THE PETITION FILED BY THE JDR UNDER ORDER 23 RULE 3, 3(A) R/W 151 OF CPC IN MISC. NO.58/2018, PENDING ON THE FILE OF PRL.SENIOR CIVIL JUDGE AND CJM, AT SHIVAMOGGA, WHICH IS PRODUCED AS ANNEXURE-P AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the decree holder in Execution No. 38/2018 filed by the respondent – Judgment Debtor and the opponent in Misc. No. 58/2018 is invoking the jurisdiction of Writ Court seeking a Writ of Certiorari for quashing the proceedings in the said Miscellaneous Case on the ground that the respondent has already received the entire money.
2. The suit in O.S.No.16/2018 has admittedly culminated into a compromise decree; the Miscellaneous Case is filed by the respondent – Judgment Debtor under Section 151 of CPC, 1908 read with Order XXIII Rule 3-A since there is prohibition against filing a separate suit; such a Miscellaneous Case needs to be tried as if it is a suit since the Judgment Debtor should have full opportunity to establish such of the grounds as would invalidate a contract inasmuch as, a compromise decree is nothing more than a contract with the seal of the Court super added.
3. Therefore, the quashing of the Miscellaneous Case cannot be ordered when there is a triable case in the Miscellaneous petition which is founded on the grounds of fraud and the like.
In the above circumstances, the writ petition being devoid of merits, is disposed off keeping open all contention of the parties.
Sd/- JUDGE KTY