IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR WRIT PETITION NO.10157/2015 (GM-CPC) BETWEEN MIR RAZA ALI SINCE DEAD BY LR SMT SHANAWAZ BANU, W/O MIR RAZA ALI, AGED ABOUT 51 YEARS, R/O BELUR ROAD, CHIKMAGALUR-577101 SINCE DEAD BY HER LRS 1(a) AHMED FARAZ S/O LATE MIR RAZA ALI, NO.21/1, LB-01, ROYAL ENCLAVE, BORE BANK ROAD, ADAM GOLDEN HERITAGE, BENSON TOWN BANGALORE NORTH-560046.
... PETITIONERS (BY SRI D C JAGADEESH, LRs OF DEAD PETITIONER.) AND 1. A R MOHAMMED USMAN SINCE DEAD BY LRS, 1.a) SMT. GULSHIDA BANU, W/O MOHAMMED IMAM, AGED 65 YEARS, JENAGADDE AT AND POST, CHIKMAGALUR-577101.
1.b) SMT TAJ BANU W/O M.B. BASHEER AHAMED, 54 YEARS, MAJOR, R/O S.M. STREET, CHIKMAGALUR-577101 1.c) SMT SAJIDA BANU W/O MUMTAZ ALI, AGED ABOUT 64 YEARS, R/O KAIMARA, CHIKMAGALUR-577 101.
1.d) ZAKIYA BANU, TEACHER MANOR, R/O HOSAHALLIPET, AGED 35 YEARS, CHIKMAGALUR TALUK, CHIKMAGALUR-577101.
1.e) MUKTHAR HUSSAIN @ SHABEER, AGED ABOUT 60 YEARS, MERCHANT, K.M. ROAD, ALDUR, CHIKMAGALUR-577101.
1.f) KOUSAR BANU W/O K.NOOR AHAMED, AGED ABOUT 54 YEARS, TEACHER IN GOVT. URDU SCHOOL, ALDUR, CHIKMAGALUR-577 101 1.g) NOOR JAHAN BEGUM, W/O KHURSHID HUSSAIN, AGED ABOUT 54 YEARS, R/O KHAJI MOHALLA, 2ND CROSS, KOTE AREA, BHADRAVATHI PIN-577301.
1.h) ROHANA PARVEEN, D/O A .R. MOHAMMED USMAN, AGED ABOUT 54 YEARS, C/O MUKTHIAR HUSSAIN, MERCHANT, ALDUR, CHIKMAGALUR-577 101.
1.i) NAGEENA AKTHAR, D/O A.R. MOHAMMED USMAN, AGED 50 YEARS, CLERK, AMANATH CO-OP BANK, N.R. ROAD, BANGALORE-560002.
1.j) AGA SERVER @ MUNNA S/O A.R. MOHAMMED USMAN, AGED 46 YEARS, MERCHANT, R/O ALDUR, CHIKMAGALUR -577 101.
2. SHOUKATH ALI, SINCE DEAD BY HIS LRS, 2.a) SMT. SHAKILA BANU, AGED 45 YEARS 2.b) ANWAR ALI AGED 42 YEARS 2.c) ASHRAF ALI, AGED 40 YEARS 2.d) MUNNIYASMIN AGED 30 YEARS, 2.e) SMT KHAIRUNNISA RESPONDENTS 2.(a) TO 2.(e) R/O ALDUR TOWN, CHICKMAGALUR -577101.
3. SMT. KAMALAKSHI, W/O K.R. KUMARASWAMY, AGED ABOUT 50 YEARS, HOUSEHOLD WORK, R/O RAMANAHALLI, CHIKMAGALUR-577101.
4. MEHARUNISSA, W/O LATE K ABDUL JALEEL, AGED ABOUT 82 YEARS, R/O AZAD ROAD, MUDIGERE TOWN PIN-577132 5. SMT. MEHARUNISSA, W/O LATE MOHAMMED KHRUSDUL HAQ, AGED ABOUT 71 YEARS, NEAR SHADULI MASJID, UPPALLI, CHIKMAGALUR-577101.
6. ABDUL JABBAR S/O SULTHAN MOHAMAD, AGED ABOUT 70 YEARS, R/O 1ST CROSS, CHURCH ROAD, BEHIND NOORANI MASJID, CHIKMAGALUR-577 101.
7. RAZIA BANU, W/O LATE ABDUL SATTAR, AGED ABOUT 66 YEARS, FORT, KADUR-577 140.
8. AKRAM S/O ABID HUSSAIN, AGED ABOUT 32 YEARS, MANGO GARDEN, CHRISTAIN COLONY, BEHIND USMAN MASJID, CHIKMAGALUR -577 101.
9. SMT. GULNAZ PARVEEN W/O NADEEM, AGED ABOUT 30 YEARS, 10. SMT. SHABANAZ PARVEEN, W/O SHAMID HUSSAIN, AGED ABOUT 28 YEARS, 11. TABRIZ AHAMAD S/O ABID HUSSAIN, AGED ABOUT 26 YEARS, SL.NO.9 TO 11 ARE RESIDING AT 1ST CROSS, CHURCH ROAD, BEHIND NOORANI MASJID, CHIKMAGALUR -577 101. ... RESPONDENTS (BY SRI.SHANKARANARAYANA BHAT, ADV FOR R4, 8, 9, 10 & 11. R1(b), R1(e), R1(f), R1(h), R1(i), R1(J), R2(b), R2(c), R2(e) ARE SERVED, V/O DATED 10/07/2018 R1(a,c,d,g), R2(a,d), R3,R4, & R5 ARE DELETED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD 30.04.2014 PASSED ON I.A.NO.1 IN EX.NO.164/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE & C.J.M. CHICKMAGALUR VIDE ANNX-C AND CONSEQUENTLY DISMISS THE I.A.NO.1 FILED UNDER ORDER I, RULE 10 R/W ORDER 21 RULE 35 OF CPC BY IMPLEADING APPLICANTS VIDE ANNX-B.
THIS WRIT PETITION COMING ON FOR ‘PRELIMINARY HEARING IN ‘B’ GROUP’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner and learned counsel for the respondents.
2. Petitioner is before this Court being aggrieved by the order passed by the Executing Court on I.A.No.1 preferred under Order 1 Rule 10 of CPC whereby the applicants claim to be the legal representatives of the original decree holder i.e., one Late Bhadrunissa W/o. Late Sulthan Mohamad has been accepted and the application allowed. The other applicant is one Smt. Meharunissa W/o. Abdul Jaleel.
3. There is no dispute with regard to the fact that both the said Late Bhadrunissa and Smt. Meharunissa had preferred the original suit in O.S.No.32/1987 claiming for partition and separate possession of 1/6th share in the suit schedule properties. It is also not in dispute that the said suit came to be decreed in their favour and subsequently final decree has also been passed in FDP No.11/1994. Thereafter, the instant petitioner preferred E.P.No.164/2011 on the premise that decree holders under a registered assignment deed have assigned their rights to the petitioner and hence, he resists the attempt of the parties to come on records as decree holders under the application preferred under Order 1 Rule 10 of CPC.
4. Per contra, learned counsel for the respondents would point out that originally execution petition was instituted by one Mir Raza Ali and that he having been passed away, the instant writ petition is preferred by one Smt.Shanawaz Banu and after her demise, one Ahmed Faraz claiming to be son of Late Mir Raza Ali came on record as legal representative of the petitioner herein.
5. Having heard the learned counsels and having adverted to the pleadings and the reasons setout, this Court is of the considered opinion that the reasons assigned by the trial Court in allowing the application does not warrant any interference. The issue as to whether the original decree holders have assigned their rights or not is to be tried after affording an opportunity to the parties. The said reasoning cannot be complained of. Hence, administration of justice requires that an interested parties shall be afforded fair opportunity to have a say with regard to the claims.
6. The trial Court has noted that relationship between the impleading applicants and one of the original decree holder i.e., Late Bhadrunissa is admitted and the fact is that Smt. Meharunissa W/o. Abdul Jaleel is also one of the decree holder in O.S.No.32/1987 and the same is also not in dispute.
7. In that view of the matter, this Court does not find any good ground or circumstance which necessitates interference with the findings rendered by the trial Court. It is made clear that observations made herein above shall not be construed as pronouncement on the rights of the parties.
Accordingly, the writ petition is disposed of leaving open all the contentions to be adjudicated by the Executing Court after affording an opportunity to the parties. The trial Court shall expedite hearing and disposal of the suit within an outer limit of six months from the date of receipt of certified copy of this order.
Sd/- JUDGE VM CT:HR