IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 55886 OF 2017 (GM-CPC) BETWEEN:
SRI. PRASHANTH, S/O V SRINIVAS, AGED ABOUT 34 YEARS, R/AT NO.9/1, BALEPET, KOLLEGALA TOWN, CHAMARAJNAGAR DISTRICT, PIN 571 440. … PETITIONER (BY SRI. M SHIVAPRAKASH, ADVOCATE) AND:
1. SRI. SHIVAMADAPPA, S/O LATE CHIKKAMADAPPA, AGED ABOUT 66 YEARS, R AT NO.7/22, 4TH CROSS, BASAVESHWARA NAGAR, KOLLEGALA TOWN, JAMARAJNAGAR DISTRICT, PIN 571 440.
2. V SRINIVAS, S/O LATE VENKATARAMASHETTY, AGED ABOUT 65 YEARS, 3. SRI. KANAKARAJU, S/O V SRINIVAS, AGED ABOUT 40 YEARS, 4. KUM. S PADMINI, D/O V SRINIVAS, AGED ABOUT 29 YEARS, RESPONDENT NO.2 TO 4 ARE R/AT NO.9/1, BALEPET, KOLLEGAL TOWN, CHAMARAJNAGAR DISTRICT, PIN 571 440. … RESPONDENTS (BY SRI. VINAY D HOSMATH, ADVOCATE FOR SRI. D S HOSMATH, ADVOCATE FOR R1; R3 TO R4 SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR ENTIRE RECORDS IN EXECUTION NO.14/2016 ON THE FILE OF CIVIL JUDGE(SENIOR DIVISION) AND JMFC AND QUASH THE IMPUGNED ORDER ON I.A.NO.5 DATED 02.11.2017 IN EX.NO.14/2016 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC AT KOLLEGAL AT ANNEXURE –C AND CONSEQUENTLY TO QUASH THE ENTIRE EXECUTION PROCEEDINGS UNTILL ADJUDICATION OF RFA NO. 1419/2017.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the third judgment debtor in Execution No.14/2016 levied by the first respondent – decree holder for the enforcement of a judgment & decree for specific performance dated 13.10.2015, is invoking the writ jurisdiction of this Court for assailing the order dated 02.11.2017 a copy whereof is at Annexure-C whereby the Execution Court has directed issuance of delivery warrant in respect of subject property.
2. After service of notice, the first respondent decree holder having entered appearance through his counsel, opposes the writ petition, other respondent – judgment debtors despite service of notice, having chosen to remain unrepresented.
3. Having heard the leaned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter because:
a) the first respondent – decree holder’s suit in O.S.No.33/2014 for the decree of specific performance was founded on the agreement dated 20.11.2012; the petitioner being one of the sons of first judgment debtor Mr. V. Srinivas, was a signatory to the said agreement although it was only V. Srinivas who was having the ownership and transferable title to the subject property; therefore, arguably the petitioner does not have a litigable interest in the execution proceedings;
b) petitioner had never participated in the trial of the suit in question although he has later preferred RFA No.1419/2017 against the decree now put in execution that too after brooking a delay of about two years; the said RFA is pending on the file of this Court on civil side and that no interim reprieve has been granted therein; mere filing of an appeal does not result into suspension of the enforcement of the decree in question unlike in the original Civil Procedure Code of yester century;
c) if the petitioner succeeds in RFA and the decree in challenge therein is annulled or altered, his remedy lies under the provisions of Section 144 of the CPC, 1908 for restitution; and d) even otherwise also justice of the case does not warrant any reprieve being granted by this Court in its limited jurisdiction vested under Article 227 of the Constitution of India.
In the above circumstances, this writ petition being devoid of merits, is dismissed.
No costs.
Sd/- JUDGE Bsv