IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.41929 OF 2019 & WRIT PETITION NO.47800 OF 2019 (GM-CPC) BETWEEN:
CHIKKAMUNIYAPPA, S/O SADAPPA, SINCE DEAD BY HIS L.R’S 1. MOTAMMA, W/O CHIKKAMUNIYAPPA, AGED ABOUT 70 YEARS, 2. SHANTHAMMA, D/O CHIKKAMUNIYAPPA, AGED ABOUT 38 YEARS, 3. KEMPAMMA, W/O CHIKKAMUNIYAPPA, AGED ABOUT 65 YEARS, 4. VENKATA SWAMY, S/O CHIKKAMUNIYAPPA, AGED ABOUT 42 YEARS, PETITIONERS NO.1 TO 4 ARE RESIDING AT A.K.COLONY, MALUR TOWN, KOLAR DISTRICT-563130. … PETITIONERS (BY SRI.RAHUL S.REDDY, ADVOCATE) AND:
ABDUL SATTAR KHAN, S/O LATE ABDUL RAHEEM SAB, SINCE DEAD BY HIS L.R’S 1. SMT.PARVEEN TAJ, W/O ZAHEER AHMED, AGED ABOUT 58 YEARS, R/A THIMMAIAH ROAD, BENGALURU.
2. ABDUL KHAYUM, S/O ABDUL SATTAR, AGED ABOUT 54 YEARS, R/A NIZAM MAHOOLA, MALUR TALUK, KOLAR DISTRICT-563130.
3. SMT.SHAHEEN TAJ, W/O MOHEMED HASSAIN, AGED ABOUT 52 YEARS, R/A DOMMASANDRA, SARJAPURA HOBLI, BANGALORE DISTRICT-562125.
4. ABIDA BEGUM, W/O ABDUL KHALEEL, AGED ABOUT 50 YEARS, R/A NIZAM MAHOOLA, MALUR TALUK, KOLAR DISTRICT-563130.
5. SMT.AYESHA BEGUM, W/O MOHEMED GHOUSE, AGED ABOUT 46 YEARS, R/A THIMMAIAH ROAD, BANGALORE-560051.
6. SMT.WAHEEDA BEGUM, W/O ABDUL RAZAK, AGED ABOUT 48 YEARS, R/A OPP GREEN, SHIVAJINAGAR, BANGALORE-560051.
7. SMT.SAYEEDA BEGUM, W/O MOHEMED ANSER, AGED ABOUT 44 YEARS, R/A KOODIYANUR VILLAGE, MALUR TALUK, KOLAR DISTRICT-563130.
8. MOHAMED HANEEF, S/O LATE ABDUL SATTAR, AGED ABOUT 56 YEARS, R/A KOLMI RAMAIAH LAYOUT, MALUR TOWN, MALUR, KOLAR DISTRICT-563130.
9. CHIKKANNA, S/O BYRAPPA, MAJOR, EX-MUNICIPAL COUNCILLOR, R/A A.K.COLONY, MALUR TOWN, MALUR, KOLAR DISTRICT-563130. … RESPONDENTS (SRI.C.SHANKAR REDDY, ADVOCATE FOR C/R-8) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN EX.NO.20/2005 BEFORE THE ADDITIONAL CIVIL JUDGE (JR.DV) & JMFC, MALUR AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the judgment debtors in Execution Case No.20/2005 arising from a judgment & decree dated 27.07.2005, have filed these Writ Petitions for assailing the orders dated 16.03.2019 and 17.08.2019, copies whereof are at Annexures – D & G, to recall whereby they seek to keep the execution proceedings halted because of pendency of another suit in respect of very same property.
2. After service of notice, the contesting respondent/decree holder having entered caveat through his counsel, resists the Writ Petitions.
3. Having heard the learned counsel for the parties and having perused Petition Papers, this Court declines to grant indulgence in the matter because:
(a) the specific performance suit was dismissed by the trial court; however, the dismissal having been reversed, the decree came to be granted by the First Appellate Court, challenge to which in Regular Second Appeal failed; the same came to be affirmed by the Hon’ble Supreme Court in petitioners’ Special Leave Petition; all this is admitted by the petitioners.
(b) at one stage of the proceedings, the execution proceedings were kept in abeyance because of the pendency of another suit in O.S.No.150/1998 renumbered as O.S.No.139/2013; however, this abeyance order was suo moto brushed aside by the Executing Court vide order dated 16.03.2019, at Annexure – D and this was sought to be recalled by the petitioners by filing the application in I.A.No.19 which came to be rejected by the impugned order dated 17.08.2019, at Annexure – G; Executing court has such power which it can exercise suo moto;
(c) the impugned orders cannot be faltered inasmuch as the challenge to the judgment & decree at the levels of this court and further of Apex Court at the instance of the petitioners herein has ended in vain; the pendency of a parallel suit cannot be a ground for delaying or defeating the judgment & decree granted by a court of competent jurisdiction;
(d) the grievance, if any, the petitioners can be worked out under the provisions of Section 144 of CPC if and when the suit in O.S.No.150/1998 renumbered as O.S.No.139/2013, is decreed; this apart, the application in I.A.No.19/2019 itself had become infructuous inasmuch as pursuant to the decree in execution, the sale deed having been executed and registered as asserted by the counsel for the respondents; for the same reason, these Writ Petitions too are also incompetent.
In the above circumstances, the Writ Petitions are rejected.
No costs.
Sd/- JUDGE cbc