IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED TI-HS THE 6th DAY OF 0cToBER_.'2b0§V'_'jf .
BEFORE
THE HON'BLE DR. JUSTICE K:=.A1BI§5Ai§TfiA{\lAT'SA'LA_
WRIT PETITION Nos.65o68;65969V_/':20o9(sixty:rjgc) .
BETWEEN:
1.
' _ (ByL§a~1§<u1k;;rr1i;'*Adv., for petitioners)
1.
Sri Pararnanand Koriha1_1i,'
Age about 45 years, .e " jv .. *
S/0 late Venlaappa Korihalli, _ ' "
Occ:Agric1,:Ituf;1/ist, 4' _
R /0 Mug311iho&,,.;.}.afr;kh "ndi tat"-;V1k, »
Bijapur D_ist.tit;_.t. 2
Smt} Lakkava, ' é
Age about 60" ye'aAArs,._ --
W / 0 late 'Ver1kVappja_ Kerihalli,
R / 0 Muga1kh0d,_JRamEetitions"Corning on for preliminary hearing this
day. the Courmnade the following:
ORDER
Petitiolners who are the legal representatives of the
V’ ufljoieiglliiial defendant No.7 in O.S.No.8/1991 on the file of the
I51″-inlcliipal Civil Judge(Senior Division) at Jamkhandi, are
L
before this Court under Articles 226 and 227 of the
Constitution of India praying for setting aside thVeVei..o’rder
dated 22 / 08/ 2009 made in Execution Petition
on the file of Principai Civil Judge(Se1a,i_or.Vvifiivisionj’
Jarnkhandi at Annexure “G”
22/ O8 / 2009 made in Execution4PetitiioAnii\io.262v on ~’
me of the Principai Civili’i””JVudge(Seniof*rdpixhsionj at
Jarnkhandi at Annexuref “‘~1-“if”. ._ V’
2. The brief facts of t.he1;-,c;1se–1eadi-n_g to the filing of
these writ petitions rnay.’be”st;at.ed..ass under?
i ~herein filed a suit for partition
and separate possessi’oni”‘in O.S.8/1991 on the file of the
4
..,_Prineipai.ACivAiI Judg’e'(Senior Division) at Jarnkhandi against
_o2:e_ ‘Rangana’th,”*Suresh, Yamunabai(since dead represented
her Iegahrepresentatives 3A to 3E), Aravind, Narendra,
ir__Shantabaji and Venkappa(since dead represented by his two
“iii-:Vgia”1″~«heirs viz., the present petitioners). Preliminary decree
Came to be passed on 16/ 04 / 2001 holding that the piaintiff
is entitled for partition and separate possession of his half
share and the defendants 4 and 5 jointly are entitled for half
share in the land bearing Sy.No.80/ 1 measuring 8 acres 26
guntas situate at Mugalkhod village,
mentioned in suit schedule “A” property. Further, thee’
Court has held that in View of proviiisions of 54:
Code of Civil Procedure, the plaintiffanidpdefendants 4
shall move ADLR, Jamkhandi;«v__iorpeffecting ii
partition and separate ,.-possessionihvin-._the suit-.schedule–A
property by metes and tiiiou_r1ds.s..vVT1jie Court rejected the
relief with regarditohperrnanent injtinctionezahd mesne profits.
Subseq_ueinitly,:fon respondent No.1 herein filed
Final Dem Proceeidingsgliiayi«No.8/2001. On 29/11/2002,
final pdecreeii”pr_ocee.din’gsiixiere drawn. On the basis of the
~._finailjiiideeree»vl.proceedings, 4 acres 13 guntas was allotted in
_ifa~.;Q’_ur. plaintiff and the remaining 4 acres 13 guntas
vrrasiiiallottethto defendants 4 and 5. Non judicial stamp
ix__paper was produced on 11/ 12/ 2002 and final decree was
Qydraxirn. The present petitioners challenged the preliminary
decree in RFA No.798/2C1E)\1jrhich came to be dismissed on
25/06/2003. The petitioners challenged the final decree
proceedings in RFA No.1007/ 2003 and that was.._’:iialaso
dismissed on 19/ 11/2004. The contention of H
was that they were tenants of the land in Their
application seeking grant of occupbancyirijgh.ts’:
and they carried the case to the I~loni”ele Apex.Court’; in
Special Leave to Appea1(civil) ihni’e»l\l.o’.1_i79i9,? ‘The Apex
Court dismissed the cas:e’~o_n
4. The plaintiffitiled Exécutiori. Case in No.34/2003
for delivery of h:is.._”dVeferida;nVt No.4 and legal
repres§:initative§vf,vQf also filed Execution case
NO.264i/’i2O06iforV “s~h:are=;’ The present petitioners filed
objections to’ EVXecu’tio’1*1 case. Impugned orders both dated
‘”«1..22,=’o’s/goognweré’made in Execution Petition No.34/2003
_i_and_ as per Annexures “G” and “F”. The Court
oxirerii ruiedtitlrie objections and ordered to issue delivery
ixuwarrant as per the final decree. Thus those two orders are
“:i:”irnpiigned in these writ petitions.
5. Sri V.P. Kulkarni, learned counsel for the
petitioners submits that in View of the decision of vV}f)eiyli::ion
Bench reported in HR 2008 KAR 13(RU}<lMINI Aim
vs V. UDAY KUMAR AND OTHERS) filing execu_:tion:.i.lpetitionl C
under Order 21 Rule 11 of the Code ofl:Civ=ill"}?recedure
permissible. He further submits that since theelsuit is .'forl"a
partition and final decree proceedings "w.er'ee and
concluded, the parties':,'~~..who"l'areele_nltit}ed possession,
should not have filed Order 21 Rule
11 of the CPC_,- C C' W C C
llll clbuiisel the reSp0ndents–decree
hotdersllsubrnits th'e.l_:;§etjitioners are taking one objection
or the otherrl' .He Afurther submits that in the earlier
Eearne'd"'sing1e Judge of this Court has given
liberty Efiiel 'Execution Petition while dismissing RFA.
T'herefore.,l't:h_e}: decree holders have filed execution petitions
under order 21 Rule 11 of CPC and the Executing Court has
I over ruled the objections raised by the petitioners and
I
ordered to issue delivery warrant and there is no error or
infirmity in the impugned order. H
7. The final decree at Annexure “B” sho_Ws__”~th”a,t
final decree was drawn on non–judicial stanip paper ‘
20/12/2002. If the decree holders ‘:n:otl.l”trai§en._V
possession, they could have taken ‘possessiion’~of’their ~sl1are.:
in the final decree proceedings ‘itself. i’Decisio’nv reyndered in * ‘
Rukmini, supra, in paragraphp_No;~vi,9’vof the ‘judgrnent, it is
held that final decree procieedingsyivs in continuation
of the suit for partition and iyolfllthe properties,
puttingithel’pai’rties’iin sep:arate.lpossession of their shares,
adjustnient of lequitieps,iii’1npa«rt1bi1ity of the suit property, sale
of property andliallhotherdisputes have to be settled in final
it ‘ p_roceedingsl.”””‘In View of the decision rendered by the
this Court, the decree holders could have
ayailed thel’ren’iedy in the final decree proceedings instead of
lxufiling separate Execution Petitions. Further, the contention
‘~:”tal<len«.by the present petitioners is too technical and it is
crystal clear from the ffts that they are protracting the
proceedings so as to retain the possession of the suit
property. The conduct of the petitioners V._be
condemned. The petitioners having suffered judgjnierit.' _
hands of the i-Ion'ble Apex Court, should _iiaveii*Voll'dntari1py
given possession to the decree holders.
untenable contentions.
8. In the resulltfithe are disposed off.
The Principal Ciiril JudgVe(Senior_lli[§pivis~iori}l._’fat”Jamkhandi, is
directed to restorethe final in No.8 / 2001
on its file the decree holders in
possesisionv as per the final decree
drawn the case shall be disposed off within
three _rnonth’s fromhthle. date of receipt of copy of this order.
learnle’d””‘PVrincipal Civil Judge(Senior Division),
directed to close the proceedings in EP.
Nc§’}i34/ 262 /2006.
§U§GE
‘ krnv