IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NOS.31529/2014 & 32037/2014 (GM-CPC) BETWEEN:
SMT. U.M.VIMALA W/O.U.M.S. DEVAPPA GOWDA AGED ABOUT 58 YEARS, R/AT: MAVANJI, MANDEKOLU VILLAGE, SULLIA TALUK, D.K.-574 239 ...PETITIONER (BY SRI. G.BALAKRISHNA SHASTRY, ADVOCATE) AND:
DEVANNA NAYAK S/O. VENKAPPA NAYAK, AGED ABOUT 48 YEARS, R/AT: MAVANJI, MANDEKOLU VILLAGE, SULLIA TALUK, D.K.-574 239 (BY SRI. K.SRIHARI, ADVOCATE) ...RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 8.8.2013 IN EXECUTION CASE NO.18/2011 ON THE FILE OF THE CIVIL JUDGE & JMFC, SULLIA, D.K. VIDE ANN-A AND QUASH THE ORDER DATED 10.6.2014 IN EX.CASE NO.18/2011 ON THE FILE OF THE CIVIL JUDGE & JMFC, SULLIA, D.K. VIDE ANN-B.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri. G.Balakrishna Shastry, learned counsel appearing for the petitioner and Sri. K.Srihari, learned counsel appearing for the respondent. Perused the records.
2. Parties are referred to as per the rank in the suit O.S.No.44/2009, which came to be filed by the respondent herein for declaration that he is the owner of plaint ‘A’ Schedule property bearing Sy.No.3B measuring 94 cents and for possession of ‘B’ Schedule property namely, portion of Sy.No.269/3B measuring 11 cents situated at Mandekolu Village, Sullia Taluk, Dakshina Kannada District. However, at the intervention of well wishers and friends parties have arrived at a settlement and an agreement came to be drawn between them. Along with the agreement a compromise petition under Order 23 Rule 3 CPC came to be filed, which was taken up at the Mega Lok Adalath held on 07.09.2010 and compromise petition so filed by the parties came to be accepted on being satisfied with the due execution of said compromise.
3. Respondent/plaintiff filed an execution petition in Ex.No.18/2011 contending interalia that terms agreed to under the compromise petition has not been adhered to by the writ petitioner/defendant/ judgment debtor. Executing Court by the impugned order dated 08.08.2013 has allowed the execution petition and ordered for issue of delivery warrant against the judgment debtor as prayed for in the execution petition, which has been impugned in these writ petitions.
4. It is the contention of Sri.G.Balakrishna Shastry, learned counsel appearing for the petitioner that as per the terms of compromise petition defendant had to tender a sum of `60,000/- to enable the plaintiff to execute the sale deed and though it was tendered, same was not received by the plaintiff and even otherwise the executing court ought to have held an enquiry on this factual aspect. He would further elaborate his submissions by contending that under the compromise petition it was agreed to between the parties that suit should be dismissed giving further right to the parties to workout their remedies by filing a fresh suit and this aspect has not received the attention of the learned trial Judge and as such, impugned order is liable to be set aside.
5. Per contra, Sri. K.Srihari, learned counsel appearing for the respondent would draw the attention of the Court to the contents of the compromise petition to support the impugned order.
6. Having heard the learned Advocates appearing for the parties and on perusal of records it would disclose that undisputedly dispute came to be settled between parties by filing a compromise petition under Order 23 Rule 3 CPC. Pursuant to same, Executing Court has disposed of the suit in terms of compromise petition. Executing Court having examined clauses found in the agreement in detail has held that as per Clause (2) of the compromise petition, defendant was required to pay `60,000/- to the plaintiff and get the sale deed registered from the plaintiff in respect of ‘B’ Schedule property and it was not done by the defendant. Though Sri.Shastry, learned counsel appearing for petitioner would submit that said amount was offered and plaintiff had refused to receive the same, said plea cannot be accepted since it is a self serving statement made by the defendant without any proof. Had the judgment debtor deposited the said amount before the Executing Court immediately on receipt of summons in the executing proceedings, it would have established the bonafides of defendant. Even said exercise was not undertaken. In the present writ petition, no attempt has been made by the petitioner i.e., defendant to deposit said amount of `60,000/-. Yet this Court extended the olive branch to the petitioner to get the matter settled and it was reported that there is no such settlement. This would only indicate that defendant has been making moonshine offers without actually depositing or tendering the amount before the Court. Though it is contended by Sri.Shastry that plaintiff ought to have furnished 11-E Sketch, which is mandatorily required for registration of sale deed and on account of non production of said sketch by the plaintiff, defendant did not deposit the amount, said plea is required to be considered for the purposes of outright rejection, inasmuch as, terms agreed to between the parties under the compromise petition filed before Lok Adalath would disclose that in the event of plaintiff’s failure to furnish 11-E sketch defendant could have offered/paid the said amount to the plaintiff and obtained an irrecoverable power of attorney from plaintiff. Even this was not done. Hence, contention of Sri.Shastry cannot be accepted.
7. Insofar as, non holding of enquiry by the Executing Court, which has been raised in the present writ petition, is without merit, inasmuch as, compromise petition as filed before the Lok Adalath, which has got crystalized by way of a decree would disclose that in the event of terms agreed to under the compromise petition namely, payment of money by defendant to plaintiff would not occur, then said agreement would automatically stand cancelled and consequently, defendant is required to handover possession of schedule property to the decree holder. Hence, plaintiff has filed the execution proceedings in question. In that view of the matter, second contention as well as third contention that execution petition is to be dismissed also cannot be accepted and consequently, order passed by the Executing Court deserves to be upheld.
Hence, I proceed to pass the following:
ORDER (i) Writ petitions are hereby dismissed.
(ii) Order dated 08.08.2013 - Annexure-B passed by Civil Judge & JMFC at Sulia in Ex.No.18/2011 is hereby affirmed.
(iii) No order as to costs.
SD/- JUDGE DR