IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14th DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NOs.54581-82/2017 (GM-CPC) BETWEEN:
1. SMT. RAJAMMA AGED ABOUT 85 YEARS D/O LATE SRI. ESHWARIAH NO.122, KURIMANDI ROAD, KESRE, II STAGE, RAJENDRA NAGAR, MYSORE -570007.
2. SRI. VISHAL KUMAR AGED ABOUT 29 YEARS S/O SRI. SHYAMLAL GHANNA NO.1207/1, MANASARA ROAD, ITTIGEGUD, INDIRANGAR, NAZARABAD MOHALLA, MYSORE -570010.
... PETITIONERS (BY SRI. ABHINAV RAMANAND A, ADVOCATE) AND:
1. SMT. ANANTHALAKSHMI AGED ABOUT 59 YEARS W/O LATE SRI. L. RAJASHEKHARA MURTHY 2. SRI. R. TRINESH KUMAR S/O LATE SRI. L. RAJASHEKHARA MURTHY AGED ABOUT 49 YEARS.
3. SRI. R. GIRISH KUMAR S/O LATE SRI. L. RAJASHEKHARA MURTHY AGED ABOUT 47 YEARS 4. SRI. R. GURURAJ S/O LATE SRI. L. RAJASHEKHARA MURTHY AGED ABOUT 43 YEARS ALL ARE R/AT NO.1107, KURUBAGERI (GARADIGERI) 3RD CROSS, K.R. HOSPITAL ROAD, LASHKAR MOHALLA, MYSORE- 570005.
... RESPONDENTS (BY SRI.B S NAGARAJ, ADVOCATE FOR R-1;
V/O DATED 14.12.2017 NOTICE FOR R-2 TO R-4 DISPENSED WITH) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 27.11.2017 PASSED BY THE VII ADDL. DISTRICT JUDGE, MYSORE IN M.A.NO.35/2017 AT ANNEXURE-G TO THE W.P. BY ALLOWING THE PRESENT PETITION.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though writ petitions are listed for preliminary hearing, by consent of learned Advocates appearing for both parties matter is taken up for final disposal.
2. Heard Sri. Abhinav Ramanand, learned counsel appearing for petitioners and Sri. B.S.Nagaraj, learned counsel appearing for caveator/respondent No.1. Notice to respondents 2 to 4 is dispensed with. Perused the records.
3. First petitioner filed a suit O.S.No.27/1995 against the first respondent herein and her husband Sri.L.Rajashekhara Murthy for delivery of possession, which came to be decreed on 10.04.1997. First respondent along with her husband filed Miscellaneous Petition No.31/1997 for setting aside the judgment and decree contending interalia that it is an exparte judgment and decree. However, after contest said miscellaneous petition came to be rejected on 10.04.2006. During this interregnum period decree holder filed Execution Petition No.473/1997 on 24.09.1997, in which proceedings the children of defendants namely, respondents 2 to 4 herein filed an application for obstructing the decree by filing an application under Order XXI Rule 97, 98, 101 r/w Section 151 CPC, which also came to be dismissed on 16.12.2016. Appeal filed against said order in R.A.No.21/2017 came to be dismissed on 05.09.2017.
4. At this juncture, first respondent herein filed a Miscellaneous Appeal in M.A.No.35/2017 challenging the order dated 10.04.2006 dismissing the Miscellaneous Petition No.31/1997. There was inordinate delay in filing the said appeal namely, delay of 4147 days (as claimed by appellant therein and disputed by writ petitioners). When the matter was set down for recording of evidence on said application, decree holder is said to have made attempts to execute the decree and as such, appellant therein sought for continuation of interim order of stay of operation of execution of judgment and decree dated 10.04.1997 passed in O.S.No.27/1995, which came to be granted on 27.11.2017 on the ground that interim stay has been granted on 23.09.1997 and also on the ground, despite appeal pending, decree holders were attempting to dispossess the appellant from the property in question. The appellate Court has also noticed under the impugned order that fresh delivery warrant had been obtained by the writ petitioners herein i.e., decree holders for delivery of possession with police help and also to break open the lock and the fact that matter was seized by it has also swayed in its mind to grant interim stay by holding that in the event of appellant being permitted to execute the decree, appeal would become infructuous and as such, appellate Court stayed the operation and execution of judgment and decree dated 10.04.1997 passed in O.S.No.27/1995, which is impugned in the present writ petitions.
5. It is no doubt true, as rightly contended by Sri.
Abhinav Ramanand, learned counsel appearing for petitioners that appellate Court could not have proceeded to stay the operation of judgment and decree dated 10.04.1997 passed in O.S.No.27/1995 without condoning the delay. However, in the peculiar facts and circumstances of the case and also in the background of decree holder after taking time to cross-examine P.W.1 had made attempts to obtain possession of suit property, has proceeded to stay the operation of judgment and decree. In the light of said fact, this Court is of the view that ends of justice would be met if the appellate Court is directed to dispose of I.A.No.I filed under Section 5 of the Limitation Act, 1963, by first respondent herein expeditiously, at any rate, on or before 15.01.2018 positively and without fail. Subject to said observations, these writ petitions stands disposed of.
6. In the event of judgment debtor namely, first respondent herein were to protract the proceedings for any reason whatsoever, order of stay dated 27.11.2017 granted by the trial Court would stand vacated. It is also further made clear that in the event of application for condonation of delay being dismissed, appellant would be at liberty to execute the decree and take possession of suit property, which would be subject to result of further proceedings, if any.
Ordered accordingly.
SD/- JUDGE DR