IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 36238 OF 2017(GM-CPC) BETWEEN:
SRI VENKATESHWARA RATHOD S/O LATE SRI SAJU RATHOD, AGED ABOUT 47 YEARS, R/AT NO.77-A, 4TH CROSS, 9TH MAIN ROAD, RPC LAYOUT, VIJAYANAGAR II STAGE, BANGALORE-560 040.
... PETITIONER (BY SRI. M B NARGUND, SENIOR COUNSEL FOR SRI. ASHWATHA NARAYANA NAIK N, ADVOCATE) AND:
1. SRI T VEERABHADRAPPA S/O LATE T.THIPPESWAMY, AGED ABOUT 57 YEARS, R/AT NO.109, 9TH MAIN ROAD, 2ND A CROSS, R.P.C. LAYOUT, VIJAYANAGAR II STAGE, BANGALORE-560 040.
SRI.T.HEMANTHKUMAR S/O LATE T.THIPPESWAMY, SINCE DEAD BY HIS LRS 2. SMT ROOPA HEMANTH, W/O LATE T HEMANTH KUMAR, AGED 46 YEARS, RESIDENT AT NO.5573, VILLAGE CENTER DRIVE, CENTER VILLE, VA 20120, USA REPRSENTED BY HER ATTORNEY HOLDER MR MANJUNATH NAGAPPA S/O NAGAPPA AGED 49 YEARS, R/A133 BLOCK, SHOBHA DEW FLOWER BANGALORE ... RESPONDENTS (BY SRI. RAJKUMAR R, FOR SRI. N JAI PRAKASH, ADVOCATES FOR R2; NOTICE TO R1 IS DISPENSED WITH V.C.O DATED 17.10.2017) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 14.07.2017 PASSED BY THE COURT OF THE CITY CIVIL AND SESSIONS JUDGA AT BANGALORE MAYOHALL IN IX. NO. 25015/2017 ALLOWING THE APPLICATION UNDER SEC. 144 R/W SEC. 151 OF CPC FILED BY R1 DIRECTING THE PETITIONER TO REDELIVER THE POSSESSION OF THE PROPERTY OBTAINED BY HIM THROUGH THE EXECUTION OF THE DELIVERY WARRANT WITHIN ONE WEEK AT ANNEX-A.
THIS PETITION COMING ON FOR FINAL DISPOSAL THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner being the specific-performance-decree- holder in Execution No.25015/2017 is invoking the writ jurisdiction of this Court for assailing the order dated 14.07.2017, a copy whereof is at Annexure-A, whereby the Executing Court having favoured the application of the 2nd respondent herein has restituted the property to her, as it was before execution. After service of notice, the 2nd respondent having entered appearance through her counsel, resists the writ petition.
2. FACTS IN BRIEF:
(a) Petitioner’s suit for eviction in O.S.No.25557/2013 having been decreed ex parte vide judgment & decree dated 25.02.2014, he had filed Execution Petition No.25015/2017 in which the possession of the property came to be delivered on 24.04.2017 by executing the delivery warrant against one of the Judgment Debtors, other having died;
(b) the contesting respondent had filed O.S.No.249/2017 for declaring the subject decree as the one obtained by fraud; she had also filed Misc.25082/2017 seeking recalling of the judgment & decree that was granted ex parte on the ground of fraud; the same is pending consideration as yet;
(c) she had also filed an application in I.A.No.3 of 2017 under Section 144 of CPC, 1908 seeking restoration of the possession of the property inter alia contending that one of the Judgment Debtors i.e., her husband having died and her L.Rs not having been brought on record despite knowledge of death, the execution process was vitiated by fraud; the Executing Court agreeing with the same, ordered restitution which is challenged in this Writ Petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, the impugned order is liable to be partially set at naught because:
(i) the Miscellaneous Petition filed by the 2nd respondent Smt.Roopa Hemanth for setting aside of the ex parte judgment & decree is still pending and so also, her declaration suit for voiding the said judgment & decree, although this suit later came to be withdrawn; that being so, the Executing Court could not have restituted the property to the 2nd respondent, ideally speaking;
(ii) however, the decree in question having been executed inter alia against the deceased Judgment Debtor without bringing his LRs namely the 2nd respondent herein on record, despite knowledge of demise, such execution against the dead needs to be treated as nullity and therefore, petitioner cannot be permitted to retain the fruits of such execution which arguably is tainted with fraud; whether fraud or not, execution against the dead person is a nullity; therefore, much grievance cannot be made out against the impugned order restoring property to the widow the deceased Judgment Debtor;
(iii) however, rightly or wrongly there is a judgment & decree obtained ex parte, in respect of which the Miscellaneous Petition for setting aside still pends; as long as such a decree is not vacated/set aside, it is capable of execution on par with a decree obtained after a full-fledged trial with participation of all the parties; therefore, petitioner-decree holder is entitled to execute the decree afresh after bringing the L.R of the deceased Judgment Debtor on record in the Execution Petition.
In the above circumstances, this writ petition is allowed; a writ of certiorari issues quashing the impugned order and thereby, reviving petitioner’s Execution Petition No.25015/2017 for consideration afresh preferably within a period of three months after bringing the L.R of the deceased Judgment Debtor to the array of parties.
It is made clear that the Executing Court shall not defer the Execution Petition on the ground that 2nd respondent’s Misc.25082/2017 is pending. However, the result of Execution Petition shall be subject to outcome of the said Miscellaneous Petition, all contentions of the parties are kept open.
The LCR to be sent back to the jurisdictional Court immediately for facilitating expeditious disposal of Execution Petition.
No costs.
Sd/- JUDGE Snb/