IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NOS.20850-51 OF 2017 (GM-CPC) BETWEEN:
1 . SRI. K.S.MURTHAPPA, S/O K.M.SRIRAMAIAH, AGED 64 YEARS (SENIOR CITIZEN NOT CLAIMED) 2 . SRI. K.S.SRIDHAR, S/O LATE SRIRAMAIAH, AGED ABOUT 32 YEARS, BOTH R/O KODLAHALLI VILLAGE, HOLAVANAHALLY HOBLI, KORATAGERE TALUK, TUMAKURU DISTRICT-572 121. ... PETITIONERS (BY SRI. M.B.CHANDRACHOODA ) AND SRI. SYED KHADIR @ DADAPEER, S/O K.G.SYED HASEEB, AGED 23 YEARS R/O UPPARAHALLI NEAR NOORANI MASZID, TUMAKURU-572 101. …RESPONDENT (BY SRI. KARTHIK P.M., ADVOCATE FOR SRI. RAKSHIT K.N., ADVOCATE ) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 25.02.2017 PASSED IN EX.NO.35/2016 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, MADHUGIRI, TUMAKURU VIDE ANNEXURE-G AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the Judgment Debtors in EX.No.35/2016 are invoking the writ jurisdiction of this Court for assailing the order dated 25.02.2017, a copy whereof is at Annexure-G, whereby the learned Principal Senior Civil Judge, Madhugiri, Tumkur, has directed issuance of the delivery warrant. Petitioners have also sought for a direction to the Executing Court to consider their Objections, copies whereof are collectively at Annexures H & J before taking any further action in the Execution Case. After service of notice, the respondent-decree holder having entered appearance through his counsel resists the Writ Petition.
2. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court grants limited indulgence in the matter because:
(a) admittedly, the suit has been decreed on 13.11.2012 and the operative portion of the same reads as under:
“ORDER The suit of the plaintifs is decreed in part. The plaintiffs’s are hereby declared as the owners of the suit item No.2 to 5 are the properties.
The defendant No.1, 3 to 6, their agents, servants or any body claiming under them are hereby permanently restrained from interfering in the plaintiff’s peaceful possession and enjoyment of suit schedule properties except item No.1.
The sale deed dated 07.07.01 executed by defendant No.1 and 2 in favour of defendant No.6 with respect to item No.2 of the suit property is hereby cancelled.”
the above text of the order shows that the subject sale deed dated 07.07.2001 so far as it comprises item No.2 of the suit property is cancelled and therefore, there is no need for taking one more cancellation deed by processing the Execution Petition;
(b) the above judgment & decree having been put in challenge in R.A.No.18/2013, the lower appellate Court has made the order on 02.04.2016 which reads as under:
“ORDER Appeal is allowed. The application under order 6 Rule 17 C.P.C. filed by appellant is also allowed.
Consequently the judgment and decree passed in O.S.101-2017 on 13.11.2012 by the Principal Civil Judge and JMFC, Madhugiri, is modified and the suit is fully decreed.
The plaintiffs are declared owners of suit item No.1 to 5 properties and the sale deeds dated 7.7.2001 and 6.8.2008 executed by defendants No.1 and 2 and defendants No.3 to 5 in favour of defendants No.6 and 7 in respect of suit item No.2 and 1 properties are held to be not binding on the plaintiffs.
Further defendants and anybody claiming under them are restrained by an order of permanent injunction from interfering with plaintiffs’ possession and enjoyment of suit properties.”
(c) in fact, the plaintiffs are held to be in possession of the property thereof, therefore, the question of issuing delivery warrant does not arise when two Courts have concurrently held that the decree holder has been in the possession of the subject property; and, (d) petitioners’ Objections to the Execution Petition need to be considered in accordance with law keeping in view the findings recorded by the trial Court and the first appellate Court inasmuch as, there is no interim stay granted by this Court in pending RSA.No.691/2017, against the decree of the Court below.
In the above circumstances, these Writ petitions succeed in part; a Writ of Certiorari issues quashing the impugned order directing issuance of delivery warrant; there is no need for execution and registration of any Cancellation Deed at all.
The Executing Court shall consider the Objections filed by the petitioners in accordance with law.
No costs.
Sd/- JUDGE DS