IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.52247/2017(GM-CPC) BETWEEN:
RICHARD D’ SILVA, S/O LATE RAIMOND D’SILVA AGED 42 YEARS, R/O RMC ROAD, 8TH CROSS, VINOBANAGARA, SHIVAMOGGA CITY 577201.
... PETITIONER (BY SRI P. N. HARISH, ADVOCATE) AND:
ESTHELAMMA W/O LATE RAIMOND D’SILVA AGED ABOUT 77 YEARS, R/O RMC ROAD, 8TH CROSS, VINOBANAGARA, SHIVAMOGGA CITY 577201.
... RESPONDENT (BY SRI S. V. PRAKASH, ADVOCATE) **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 7.11.2017 PASSED ON IA NO.III IN EX.NO.76/2017 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, SHIVAMOGGA PRODUCED AS PER ANNEXURE-F REJECTING THE APPLICATION FILED BY THE PETITIONER UNDER ORDER XXI RULE 29 READ WITH SECTION 151 OF CPC AND ALLOW THE APPLICATION FILED BY THE PETITIONER UNDER ORDER XXI RULE 29 OF CPC AS PER ANNEXURE-D IN EX.NO.76/2017 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, SHIVAMOGGA.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner - judgment debtor filed the present writ petition against the order dated 7.11.2017 on I.A. No.3 made in Ex.No.76/2017 on the file of the Prl. Civil Judge & JMFC, Shivamogga, rejecting the application filed by the judgment debtor under Order 21 Rule 29 r/w Section 151 of the Code of Civil Procedure to stay the execution of the decree passed in O.S. No.440/2013, and issuing delivery warrant directing the judgment debtor to quit and deliver the vacant possession of suit execution schedule property to the decree holder and also directing the PSI of Vinobanagara Police Station, Shivamogga to give Police protection to the Court Amen for execution of the delivery warrant.
2. The respondent – decree holder who is the mother of the petitioner - judgment debtor filed O.S. No.440/2013 for mandatory injunction directing the defendant to vacate the suit schedule property and for recovery of damages. After contest, the suit came to be decreed on 15.10.2015, which has reached finality. Thereafter the decree holder filed Ex.No.76/2017 and in the said Execution Petition, the judgment debtor filed I.A. No.3 under Order 21 Rule 29 r/w Section 151 of the Code of Civil Procedure seeking stay of the execution of the decree in O.S. No.440/2013, till the disposal of RSA No.1535/2017.
3. It is the case of the petitioner – judgment debtor that he being the son of the respondent - decree holder in O.S. 440/2013 also filed O.S. No.651/2008 for partition and separate possession. The same came to be dismissed on 14.3.2013, which was the subject matter of R.A. No.97/2013. The said R.A. No.97/2013 also came to be dismissed on 10.4.2017, which is the subject matter of RSA No.1535/2017 pending before this Court. Therefore till disposal of RSA No.1535/2017, the decree passed in O.S. No.440/2013 should not be executed. The respondent – decree holder filed objections to the application.
4. The trial Court considering the application and the objections by the impugned order dated 7.11.2017 rejected the application filed by the petitioner - judgment debtor under Order 21 Rule 29 r/w Section 151 of the Code of Civil Procedure and issued the delivery warrant directing the judgment debtor to quit and deliver the vacant possession of the property. Hence the present writ petition is filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri P.N. Harish, learned counsel for the petitioner - son contended that the impugned order passed by the Court below rejecting the application filed by the petitioner mainly on the ground that no stay order has been granted for executing the decree in O.S. No.440/2013 by this Court in RSA No.1535/2015, is erroneous and contrary to the material on record and cannot be sustained. He would further contend that though the respondent – mother obtained decree on 15.10.2015 in O.S. No.440/2013, it was a conditional decree. The suit of the respondent - plaintiff came to be decreed with costs and directed the petitioner - defendant to quit the suit schedule property along with his wife and children and hand over possession of the suit schedule property to the plaintiff subject to outcome of appeal in R.A. No.97/2013 by way of mandatory injunction.
The conditional Judgment & decree was the subject matter of R.A. No.97/2013, which also came to be dismissed on 10.4.2017 and it is the subject matter of RSA No.1535/2017. Therefore till the RSA No.1535/2017 is decided on merits, the decree passed in O.S. No.440/2013 cannot be enforced. He would further contend that if the impugned order is not set aside, the very purpose for which RSA No.1535/2017 is filed will be frustrated and the petitioner - son will be put to great hardship, loss and damage. On the other hand, no harm will be caused if the impugned order is set aside holding that the decree to be enforced only after the disposal of RSA No.1535/2017. Therefore he sought to allow the writ petition.
7. In support of his contention, he relied upon the judgment of the Hon’ble Supreme Court in the case of Ramjilal and others v. Ghisa Ram and others reported in (1996)7 SCC 507.
8. Per contra, Sri S.V. Prakash, learned counsel for the respondent – decree holder sought to justify the impugned order passed by the trial Court issuing delivery warrant and contended that the decree passed against the present petitioner for ejectment in O.S. No.440/2013 on 15.10.2015 has reached finality. Admittedly, the said decree has not all been challenged by the petitioner – judgment debtor till today. Though a conditional order was passed in O.S. No.440/2013 that delivery of possession would be subject to the result of R.A. No.97/2013, the said appeal also came to be dismissed on 10.4.2017. Though against the said Judgment & Decree, RSA No.1535/2017 is filed, till today this Court has not granted any interim order in the said appeal. In view of the same, there is no impediment for the Executing Court to pass the impugned order. Therefore he sought to dismiss the petition.
9. Having heard the learned counsel for the parties, it is an undisputed fact that the petitioner who is the son of the respondent filed O.S. No.651/2008 for partition and separate possession against the respondent - mother and the same came to be dismissed on 14.3.2013. In the meanwhile, the respondent - mother filed O.S. No.440/2013 for ejectment against his son/present petitioner, which came to be decreed on 15.10.2015 and has reached finality. It is also not in dispute that being aggrieved by the Judgment & Decree passed by the trial Court in O.S. No.651/2008 dismissing the suit for partition, the petitioner filed R.A. No.97/2013, which also came to be dismissed on 10.4.2017. It is the subject matter of RSA No.1535/2017 pending adjudication before this court. It is also not in dispute that while decreeing the suit in O.S. No.440/2013 filed by the respondent – mother for ejectment, the trial Court directed the present petitioner to quit the suit schedule property along with his wife and children and hand over possession of the suit schedule property to the plaintiff subject to outcome of the appeal in R.A. NO.97/2013 by way of mandatory injunction and also directed the present petitioner to pay damages of Rs.1,500/- per month to the respondent - mother from the date of the suit till the date of eviction of the suit schedule property. Admittedly, R.A. No.97/2013 filed by the son/present petitioner came to be dismissed on 10.4.2017. Though it is the subject matter of appeal in RSA No.1535/2017, till today no interim order is passed in the said RSA.
10. It is also not in dispute that the decree dated 15.10.2015 passed in O.S. No.440/2013 for ejectment has reached finality and admittedly no appeal is filed. The defendant filed separate suit in O.S. No.651/2008 for partition, which came to be dismissed, which was the subject matter of R.A. No.97/2013 and the said appeal also came to be dismissed, which is the subject matter of RSA No.1535/2017. Mere pendency of RSA No.1535/2017 cannot stall the enforcement of decree passed in O.S. No.440/2013 on the ground that RSA 1535/2017 is continuation of proceedings in O.S. No.651/2008. The contention of the learned counsel for the petitioner with regard to continuation proceedings cannot be accepted. Therefore there is no impediment to enforce the decree passed in O.S. No.440/2013 on 15.10.2015, which has reached finality.
11. In so far as the judgment relied upon by the learned counsel for the petitioner in the case of Ramjilal and others v. Ghisa Ram and others reported in (1996)7 SCC 507, it was a case where the suit was filed for ejectment and it was decreed and on appeal, it was confirmed and second appeal was dismissed. When the appeal was pending before the Hon’ble Supreme Court, Haryana Pre-emption Amendment Act, 1995 came into force w.e.f. 7.7.1995 and on those circumstances, the Hon’ble Supreme Court taking into consideration the continuation of the proceedings and merger theory, proceeded to hold that the suit for pre-emption was not maintainable. This Court has no quarrel with regard to the principles enunciated in the said judgment, but the same is not applicable to the peculiar facts and circumstances of the present case.
12. In view of the above, the impugned order passed by the trial Court issuing delivery warrant to the petitioner – judgment debtor, is in accordance with law. The reasons assigned and the conclusion arrived at by the Court below are just and proper. The petitioner has not made out any ground to interfere with the impugned order passed by the trial Court in exercise of power under Article 227 of the Constitution of India.
13. Accordingly, the writ petition is dismissed.
However, it is needless to observe that if ultimately, the present petitioner – judgment debtor succeeds in O.S. No. 651/2008 filed for partition, his rights are always protected and he gets possession of his share of the properties, in accordance with Law.
Ordered accordingly.
Sd/-
JUDGE Gss/-