IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.27964 OF 2018 (GM-CPC) BETWEEN SRI.K.BALACHAND, S/O LATE M.R.KIVARAJ, AGED ABOUT 45 YEARS, RESIDING AT S.R.BUILDING ROAD, ANDERSONPET, K.G.F - 563113. … PETITIONER (BY SRI.SRINIVASAN T, ADVOCATE) AND SRI.S.SELVARAJ, S/O LATE SINGARAM, AGED 70 YEARS, RESIDING AT NO.3/17, THAYAPPA GARDEN, BILLE KOHALLI, NEAR CABLE RAVI HOUSE, BANGALORE - 560076. … RESPONDENT (BY SRI.J.G.CHANDRA MOHAN, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER DATED 14.6.2018 PASSED IN EXECUTION PETITION NO.32/2017 ON I.A.4 UNDER SEC.144 R/W SEC. 151 OF CPC RENDERED BY THE SR. CIVIL JUDGE AND PRL. JMFC AT KGF AT ANNEX-A AND CONEQUENTLY DISMISS THE APPLICATION IN I.A.4 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING – B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the decree holder in Execution No.32/2017 for enforcing the specific performance decree dated 27.03.2017 granted in his O.S.No.51/2014, is invoking the writ jurisdiction of this court for assailing the order dated 14.06.2018, a copy whereof is at Annexure-A, whereby the learned Senior Civil Judge, KGF, having favoured respondent- judgment debtor’s application in I.A.No.4 filed under section 144 r/w section 151 of CPC, 1908, has ordered restitution and thereby put the respondent in possession of the subject property with a direction to cancel the registered sale deed dated 7.8.2017.
2. After service of notice, the respondent-judgment debtor having entered appearance through his counsel, resists the writ petition.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, this court is of the considered opinion that a marginal relief needs to be granted to the petitioner for the following reasons:
(a) the suit for specific performance in O.S.No.51/2014 was decreed ex parte on 27.03.2017 and pursuant to the said decree, the sale deed having been executed & registered on 7.8.2017, the petitioner came to be put in possession of the subject property; however, the said decree having been challenged in R.F.A.No.1095/2017, the same is stayed by a Co-ordinate Bench of this court on 21.06.2017;
(b) pursuant to above stay order, the restitution has been ordered and possession is delivered back to the respondent-judgment debtor; although the restitution, ideally speaking, could not have been ordered merely on the basis of interim stay of the judgment & decree in appeal; now the said issue cannot be re-examined since Regular First Appeal is still pending on the file of this Court; and, (c) the direction for cancellation of the subject registered sale deed could not have been given by the Executing Court inasmuch as the Regular First Appeal is still pending and that only the stay of the judgment & decree for specific performance has been issued by a Co-ordinate Bench of this Court; however, the fate of the subject sale deed would be decided on the basis of the outcome of the pending RFA.
In the above circumstances, this writ petition succeeds in part; the direction in the impugned order for the cancellation of the registered sale deed dated 7.8.2017 is alone nullified, keeping open all the contentions of the parties for being urged in the Regular First Appeal.
No costs.
Sd/- JUDGE cbc