IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE:
THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION NO.52624/2015 [GM-CPC] BETWEEN:
1. SRI. P.PARASMAL, S/O. LATE T.N.PUKHRAJ, AGED ABOUT 71 YEARS, RESIDING AT ‘SHANTHI’, SADHANA ROAD, K.R. EXTENSION, TUMKUR-572 101.
2. SRI. MANGILAL, S/O. MOOLCHAND, AGED ABOUT 72 YEARS, RESIDING AT “LAL NIVAS”, 1ST CROSS, NEAR RAM MANDIR, K.R. EXTENSION, TUMKUR-572 101.
3. SRI. BABULAL, S/O. JUHARMAL, SINCE DECEASED BY HIS LEGAL REPRESENTATIVES:
(a) SRI. SURESH, S/O. LATE BABULAL, AGED ABOUT 56 YEARS, (b) SRI. KEERTHI, S/O. LATE BABULAL, AGED ABOUT 54 YEARS, 3(a) & (b) ARE RESIDENTS OF ARALPETE, TUMKUR TOWN, TUMKUR-572 101.
(c) SRI. DINESH, S/O. LATE BABULAL, AGED ABOUT 52 YEARS, RESIDENT OF K.R. EXTENSION, TUMKUR-572 101. … PETITIONERS [BY SRI. RAMESH K.R., ADVOCATE] AND:
1. SRI. RAMALINGAPPA, S/O. LATE DODDABORAIAH, MAJOR, 2. SRI. D.GANGAHANUMAIAH, S/O. LATE DODDABORAIAH, MAJOR, 3. SRI. GANGADHARAIAH, S/O. LATE DODDABORAIAH, MAJOR, ALL ARE RESIDENTS OF PANDITANAHALLI, URDIGERE HOBLI, TUMKUR TALUK, TUMKUR DISTRICT-572 101. … RESPONDENTS [BY SRI. CHIDANANDA P., ADVOCATE FOR R2; R1 AND R3 - SERVED] * * * THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, TUMKUR DATED 24.08.2015 ON IA FILED BY THE PETITIOENRS UNDER SECTION 151 OF THE CIVIL PROCEDURE CODE IN EXECUTION PETITION NO.67/1991 AT ANNEXURE-H AND THEREBY ALLOW THE IA FILED BY THE PETITIONERS UNDER SECTION 151 OF THE CIVIL PROCEDURE CODE IN EXECUTION PETITION NO.67/1991.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER 1. The petitioners are stated to have entered into an Agreement on 12.08.1982 with the respondents with respect to the property bearing Sy. No.47/8, measuring 9 acres 38 guntas of Manchkal Kuppe Village, Urdigere Hobli, Tumkur Taluk. O.S. No.68/1983 is filed by the petitioners herein, who are the plaintiffs before the trial Court and relief was sought with respect to execution of the Sale Deed for the aforesaid property on the basis of the Agreement dated 12.08.1982. It is not in dispute that the suit has been decreed directing the defendants to execute the Sale Deed in favour of the petitioners herein. In terms of the decree passed in O.S. No.68/1983 the petitioners herein have deposited the compensation amount in LAC No.7/1997, pending before the Civil Court, Tumakuru.
2. It is the submission of the learned counsel for the petitioners that as the property which was the subject matter of the Agreement had been acquired, the amount is deposited in LAC No.7/1997 which would be in substantial compliance with the direction to deposit amount. Accordingly, deposit was made in the said proceedings within the time stipulated as per the Judgment and Decree dated 09.09.1988 passed in O.S. No.68/1983. Subsequently, Execution Petition No.67/1991 came to be filed seeking for execution of Sale Deed and in the said proceedings application under Section 151 of CPC was filed seeking for a necessary direction to the acquiring authority to release the compensation amount. The Execution Court has passed an order rejecting the application filed by the petitioners herein and has also dismissed the Execution Petition while observing that as the property was acquired, the question of executing the Sale Deed does not arise.
3. The learned counsel for the petitioners submit that the suit was decreed on 09.09.1988, execution proceedings were initiated in the year 1991 and admittedly, the land was acquired only in the year 1996-97. It is not in dispute that the Judgment and Decree passed in O.S. No.68/1983 has become final. It is to be noticed that as against the said Judgment and Decree passed, Misc. No.17/1988 was filed by the Judgment-Debtor, which came to be dismissed on 08.02.1991 and subsequently the said Order was challenged before this Court in M.F.A. No.631/1996 and the said appeal has also been dismissed as per the Order dated 15.01.1998.
4. Nodoubt, direction for execution of the Sale Deed cannot be made in the course of the present proceedings in the light of unavailability of title in the said property with the owner of the property who had executed the agreement and accordingly, there can be no interference in the impugned order. However, considering the Judgment and Decree in O.S. No.68/1983 having become final, it is open to the petitioners to rely on the Judgment and Decree in O.S. No.68/1983 and seek for appropriate orders regarding release, in LAC No.7/1997 where the compensation amount is said to be in deposit. Accordingly, subject to the above observation, the petition is disposed off.
Sd/- JUDGE Ksm*