High Court Karnataka High Court

Venkatesh vs Dr Vishnu Madhav Pai on 27 August, 2008

Karnataka High Court
Venkatesh vs Dr Vishnu Madhav Pai on 27 August, 2008
Author: B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA CIRCUIT'B.ENC'$i
AT DHARWAD  j ' ~.   1

DATE!) THIS THE 27TH DAY OF' m;;;%s:{;% 233$' % ' '

 

THE ¥~ICiN'BLE MRS. JUSTI(gf3_ xf.'NA{§.:§§AT;«1N§{   "  
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aE'rwEEN:  1' A'

1 VENKATESH   
3/0 PRAHLAE) 1{1_::,;<.A.RN:  ' *
48 YRS,_C)C'-.(_3 s§3v1<:E, _"  
R/O NO 2:137,.KACH'ER1_'<3:ALI;1-------~"
SHAHAPU R» -'13EVL(_i5__.U'M 4  '

2 %,:smR;%§*zfAr§}'1--:;;:%,  ~

 S/O F§sL{\HLA£) KULKARNI
<..44:YR:~3,' 0:39' aE'R,\I1\~::E '
3153- N0 21'afj2',_ KACHER1 GALLI
SH-AHAPUR' ._8§.;1,c;..A.I3Vzv1 4

 PETITIONERS

LA ={13:y sV}i§.£2g'wV s BALIKAI, ADV.)
 QR -visanu MADHAV PM
~. 5:3 YRS, occ MEDICAL PRACTITIONER

..  R/O NO 2187, KACHERI GALLE
 SHAHAPUR, BELGAUM 4

 RESPONDENT

” (By Sré: D RAVI KUMAR GOKAKAR, ADV.)

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THIS CRP FILED U/S :15 CFC. AGA1N$fI”?i*H§%:;’VT.€>;2D1:R
1t>A’rED:4.12.2oo6 PASSED IN EXECUTION PE”l_”E-TI_O.N”‘?§0.

31/1996 ON THE FILE: 0? THE PRLIC§V{L’ ‘JU1:>GI<:,

BELGAUM, H€)LD§NG SOME QBSERVAT§QNS.: '

This CR? coming on fc)i:__Ali):h.I4iIASSi{}N'.A.{i'z1"this_' fi:2f_y,' :1

court delivered fhc following:

%:_I»;f;y.!_,:1s.__1.=’¢ %

Though this for a’cv1v1′:£1:iéVsi0:1, with the
Consent cf {gained is heard finaiiyr
Z2. is filed by the judgment
degiittifs’ €30 who sfiangely filed
tirze respondent] decree holder in
Q S. 2′ , _

,, ,, ~.__V'<S'ir$ij:1geiy, the executing court in an execution petition

" "filezéi; Vjudgment debtor has; viriually grantméd ciirectiong

é;-sechtiitc the decree in favour of the decree: holder in the

AA ' suit. Befzarc proceeding with the facts sf {he casie, it

iééould be relevant to extract the aparafive portiszz-11 of the

order dated 4.12.2606 passtzé in E.P.N<:~.3I/1996 by H

Addlfiivfl Juége (S3:.D11}, fielgaum which is as under:

"ORDER

1. The Judgment Debtor to disdhee H

whether he has paid Rs.2000.33ps~

decree to the decree Iwldersi “*with.in I5

days from this order.

2. In the event’ that .. V

has paid a sum of
holder to execute the sdieddeed in-_fdve11r of the
Judgment Debtor as ef the
property nzenfioibed in ._ decree within the
period of 15 *firerr}¢ date of such
disclosure by about the
payment cf the degisideratien amount.

_ V egxallg
duty other expenses of

_ dd . is approved subject’
tcrthe the descriptien of the suit
exactly as mentioned in

4;’ ” the demee Vof O.S.No.202/1980, which has been
,_duIy by the order of ms. Petition
.90.

x R the decree holder do not execute the

safe deed as provided under the direction at

, vSI…No.2 the judgment debtor is at liberty to get the

, ‘sale deed executed by appointing the court
vveomrrzxssiewterc

6. In the event that the judgment debtor
fails to eompty his part of the duty as directed by
the decree, his right to get the sale deed executed

stands frnfeited
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– 4.

T. The 017509 is hereby directed

to whether any amount is ”

judgment debtor in Q.S.No.202/’I”98fQ
E.P.No.11/1996. : .;« V

Office to cmnply

The judgment debtor in execution
petition is referred in tfic above order
and the deems vhoklor judgment debtor.
jfidéfient debtor who has
fi1ed”oxoe11tfi5o§:_: firefcrmd this civil revision

Beiiiioii-. {X X’

~ _T1ié facts of this case. are that, on

_ V’VL3x..1}/i§>7’8.,”_an oéiooinent to scjzii suit schedule property was

between the petitioncm’ late father and the

A Since the vendor faflcd, to perform his part of

th’o___Aé>ont:t*act, the purchaser had filed O.S.No.202/1980

V’ r _b §e3:e1dng specific performance of the contract. Even prior to

that, O.S.No.I18/19?’? was filed seeking partzition and
separate possession in the family of vendor by including the
st:1i.’£ schedule property also. Both the, suits were clubbed

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5. When the matter stood thus, the gyetitionertsizeiejn

who are the judgment debtors filed exeeet

§’:io:1. ‘ ;

No.31]1996 against the responc3;eii’t;’–d.ecree

his anest and cietaention in civil :ib:”a§t§;eh:1ixeiite_ef

the movables beiongjixxg teeiihe

o.s.No.2e2/1980 dated 2€f>?1v1_,19u85.”ee_:v’ariiended in

Mis.No.88[199O dated V1711′; ,

6. Our. Vthe.Vreej;aei;itient appeared and filed
his that the application
file<fi'~~by'* was misconceived and that

the j11dg3§Ii(3£ltVVV'!;it;.':'|;'V!'tO£f not have filed the execution

recording evidence on both sides, the

. disposed of the execution petifion by order

2 the operative portion of which is extracted

'héibove; sum and substance of which is that directions

V * : y'vere"i.ssued to execute the decree for specific performance in

V faivour of the respondent herein. It is this order, which has

been challenged in the instant civil revision petition.

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7. I have heexd Sri.Ravi S. , iearned ‘the

petifioners and Sriflavikumar Gokalcar,

the Iespoadezut. ‘

3. It is contended on beegte pf tee,eefieo:g§rg_’ehat ‘ant *

execution pefition filed by a_it:1d:gxe.ent the decree
cannot be executed tliheizieetholder and that the
dineetions issuer}. in tlge– efiect an order
that that Wouid have
been a petition filed by the
judgritent dig-eetteions could not have been
issuedA’hy4t}1e He fairly concedes that if there

waeeny stibeeqtuentttiegexl dispute between the parties, then

. ” ¢itV.WesE”-fer the hezein when are judgment eiebtors to

Vtthatie action in an appropriate forum and in an

ap;§mpsiete.- Aftnanner and not by fifing execution petzifion

bein’g.Vt__}§te judgment debtors. He therefore, submits that the

eexettufion petition itself was not majntainable. Therefore,

‘ the execution court ought to have dismissed in limine the

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petition instead of gantixlg directions in favour of ‘decree

holder.

9. Per contra, it is submitted Zen of 1eVs};§ef1giei1t it

herein that being the decIee_ho1(ter,:”he

the dinections of the
Rs.2000.33ps which of
justice demanded be directed ot
execute the execution court
was theraefet:;’*– petitioners herein to

comply with the as he had the right

to execute and get the’. deed in accordance

with the’_§_1eeree performaxace. He further

subaeits ef fixfixedum cannot be vieww in a hyper-
:technicaA1t”‘;}3a3;:ierV’:’st§ defeat justice and he hence

suasinits thatflxe qiviifefiision petition be dismissed.

‘T11«e–..tp43it.$;ts that arise for my consideration in this

V jiwevisibiz petition are as follows:

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‘ They are also emitted for 3/4″‘ share

«-9..

‘I. Whether the execution petition could
have been maintained by the judgment debtqr
(petitioners) in O.S.No.202/1980 seeking
prayers made in the execution petition?

2. if the answer to point No.1 ink
cyffimzative, whether the execution oobzgjt ‘ecrz;I4::’. T’
have issued directions to execute “¢:te_c3reew in .v
faveur czf the decree hriitder” ‘(reeperedeitti _i’n;”

O.S.No.202/I980?'     * "  

11. I have perused    

26.11.1985 passed O_,_S.Ne.i«i1fi/1$579 and
O.S.No.202/1980. of the judgment

reads as follows: . V

A_ < ' "{}..S.";"!{'e;e!41'8',/.?S?'?9 is partly decreed. It is
tZeetc1rea';._tfu:1t' the–._p?ciir¢t1jfs are entitled for 3/49*
sluzrje, -each: 1',f4'*¥..Sfu1re in the suit house subject

' ~ to the ~.decree fer spec-afic perfonnanoe ef oontract
V in O. 8. 1516.292]! 980 in favour of defendant No.2.

"It ié fiuther declared the piaintzfiis are entitled for

3,1*tF?*"'ehare in the aompensatzen amount of the

in"."the:=m9vabIe properties as shown in Schedufe
T64'? k;)fth;e pfaint. The rent cf the suit is dismissed.
_ V The suit of the defendant No.2 in
" S.No.202/I986' is partly decreed Defendant
fife. 1-Prahiad Hcmamanth Kulicarni as Manager of
the family is ordered to execute the safe deed in
respect of the tencmted portion of defendant No.2
out of the suit house. The other defendants to
join him. Defendant No.2 Dr. Vishnu Pat is
ordered-ta pay to defendant No. I or to deposit in
the court the remaining bafanm of consideration

/fig

~10-

ammmt (If Rs.2G00.33ps within three moz{;ih_s’e._
from the date of this judgment and decree. ‘jAfie”i*;_ .¢
such deposit of the balcmoe c:onsi¢1erc:tie.z§ ” ;_.
amozmt, defendant No.1 as manager offthev joiizf
family is ordered to execute the saIe.dlee§:¥.wi’ifzin
three months from the date: pqyfne’n:t’o1._’f_ ,
deposit of balance eonsid’erationj a’.meunt,_ ‘and f
other defendants tejoin h1″rr:,”=«oihefiLvisé’defendani’«._
No.2 Dr. Vishnu Par’ :3 eniitledfao gei ihesalevdéed .
executed through the
rest of the suit of deferiiigiri No.2 ~Dr’;”£~’:’shriz; Pm”
(PIa:’n11_”fiF in (1.3; ;aro;2;a2/ 1930; in
o.3.1vo.2o2/ 1 980-~ 1′; dxgnzgssm, ‘ ” – .. e

As per fhe cases, I
leave z}’w’par1iee'”zTo {heir in both

the stgeii$~;««,,V _7A mpg, of this” be kept in
Ousfflz-o’»:–:QG;%?W’$98Dr’$ g V

12. finder makes it apparently clear
that for ‘fleas dccntcd subject to the decree

fq1f.; s”p-zrzcifie pefiéfiaence of contract in the suit filed by

It is not in dispute thai the respondent

I the amount in terms of the said decree

efld filed E.P.No.11/1996 for execution of the

.. ‘i_f’°1’.iet2…: But the same was dismissed on 4.9.1999 for non-

–..VV’p3*(1.r.AS£:c11tion. Subsequently, 110 steps were for

iexecufion of the decree for specific performance by the

mspondent. In the meanwhile, the petitioners herein filed

– 11-

execution petition No.31/1996 seeking arrest and detention
of the mspondent hemin. Without there being V.

which was recognized in the ¢:ie<:1ee__ 'it;

€}.S.No.202/ 1980 the executimn

dismissed the said execution pet1fi0n_,esjj.fiet {:31 '*

two counts. Firstly, because Whefdno deczeeeisfas Idade

favour of the petitioners and sufiezed a
decree for specific was Hfiouxquestion of
maintain' 19' g an execufiofi' 'db such a

circuz11stan<;es;~: if any subsequent

devev}op;11eiii3'v ,3 1=;:;ga:_' dispute arose in respect of the suit
debtors] petitioners herein

oujghtx to déhaffe appropriate legal proceedings for

én'¥.'1_'1:i1dieaiiic3¢I&1 of said dispute instead of fiijng of

I3. V-._'HG'szé"ever; the execufing court did mat simply dismiss

.. ts: execution petition on the gnund of maintainability.

dd insfeaci evidence was zmorded on the yrayezs made by the

petifioners herein and directions were issued vzixtually

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of

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14. Learned counsel for the respondent

that it is the duty ef the court to render iaeviog

a hyper-technical approach. No <;ioe4lj3'tj,_ V":i"]:1e L

court to render justice v§7hene*;e'fV.t11ere»'.ir::. -:iee:ie'n*d for
justice, it is the duty of the eee
the four corners ofvIeixv_, guneéaeofi and justice
can be rendered. ':ié§ :'xe1;p1b§ip:'ays to be rendered
in 3. case Where an
exeeutie-.1:1'V by the judgment debtor
whijieffis a decree for specific
favour of the decree holder who

has in' faet"1oei:._ srig§1t to execute the decree. This is an

< of not only pxoeeduxe but also reversal of

' " jflfiispmxdenoe in the matter of execution of a decree.

.' . T'§1evex*e1eVAofjusfiee cannot be extended beyond the law and

juxieprizdence since eoufle have the duty to render justice in

AA '[ accordance with law.

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