IN THE HIGH COURT OF KARNATAKA AT BAN_GA§Q'_BéE A' DATED THIS THE 1st DAY OF JUNE V' ' BEFORE A ' _ THE H()N'BLE MR. JL!ST£CI*i'A_:S'--BOPA;,N.?§;§: '' n . REGULAR SECOND A?P;*£Q§L No. 338'; BETWEEN : SUBBAN SHIVA RAG S/O SHIVA RAD AGED ABOUT 55 YEARS _ .. R/A SI-IIVABAGHV * .4 ' KADRI, MANGA£;oR'j7:-575 002 " _ REP. BY HIS _,1D0wEI+2._0;F A'If:.QR.NE'i' V VENKATAPPA sHE'r<§:QAR,_"' _ * " S/ 0 GOVIN£)A= s:--.1E'I'r;GAR ~ » «V '- AGED ABOUT 60 YEARS * V _ C/O SUBBAN SFHVARAO ' SHIVABAGEL KADR1_ V ' _ " MANGALORE-.573 002 ' APPELLANT _ (BY s~:.z%§;1;'VK~cHAr§"DRn;:~§A'r;»£ ARIGA, ADV.) 1 'A 'KUMUJ'.}fA.TD/O LATE POOVAPPA AGE3D.ABOU'I' 68 YEARS R] ABABU GUDDA MANGALORE , _ GADI NARNAPPA 3/0 NARNAPPA " AGED ABOUT '76 YEARS R/O DOOR' NO. 8-883, NEAR' KORAGAPPA POCJJARY HOUSEBAGUDDE MANGALORE RESPONDENT
THIS APPEAL U /s 100 OF’ CFC, AGMNS1′ THE JUDGMENT
85 DEGREE DATED: 12.1.2009 PASSED IN RA. N0. 138/20!38*.ON
THE FILE OF THE 1 AlI)E)L.CIVIL JUDGE (SR.DN.) _&_c.,Jr.4,
MANGALORE, DISNHSSENG ‘THE APPEAL AND c0NF1R;y1i:~:(3–‘mE~
ORDER DATED: 7.3.2008 PASSED IN EXCASE No; 1’34_i;20_C’?___ _
(HRC 3105; on THE FILE 0? THE 1 ADDL. c1vIL;Ju’:3<x11297'"1'o 101090.
This Appeal cozmng on for fiiis ‘day;
delivered the foliowing : _
The appellant hcreifi is q§;e:;__t:ion the order
dated 1V2;’0’1.2.0(;9 »:;;j:~RA.’1§’c;’1ias; 2003.
am that the respondents
herein. had’ levied an A’e§st6s:1ition petifion in execution case
_No. 3;’.§i§/ seeking___e:;ecufion of the judgment and decree
passsa 1j;;’~1.«~::a.>.’CV 1003/2005. The appeiiant herein filed an
order XXI Rules 9?, 98, 99, 100 and 101
‘V of ebjeeiting to the said execution petition. The said
* “_»app1;;g;afi;5n was reg’ste;red as {A No.11.
J
“o
3. Afier considering the rival COHt€fltiOI1S’,”*-§T_l€.
application filed by the appellant was flie’
Executing Court by its order dated
said order, the appeiiant herein. _preferred._a pe’tvit.io’r2v ‘V
in Rent Revision Petition No.’ 20038′: fient
revision petition was -.;;&1ot A’
Considering that the exeeiitioo possession
of the pmpextyr jjeefened a regular
appeal in the filing of the
herein also filed a revision
petiiion i:>efore ‘ assailing the order dated
1s.1c;2eo.s puasse_Vc:1″§n §2R§=.No.24/ 2008 dismissing the said
‘Vievision as not maintain” able. The said. revision
%s.sv”1égi§tered as HRRP No.2’?8/ 2003.
‘ ‘V4. on notice to respondent had heard and
“.§iisposet:1″ojf the revision petition in HRRP No.f.278/ 2003 by its
A dated 30.01.2909 holding that the rent revision
petition No.24/’.2008 is maizzxtainabie and aeconiingiy on
1
setting aside the order dated 18.10.2008 I{3$§OI’C(}…..tiil’6:.’:
to the fiie of the revisional court and directed” Ififisiehai _ V’
Court to consider and dispose of flieeéjce ‘on -;1:1ei’i<f:s._ "iV"he"'.
present position appears to be that éaicl RRI5_'NO.'24/
was thereafter considened on mexlits. V v«Ei.ie§is;,sed
against the appenant heztjn an.a"'thǤ;;ca15*;;g;2ant' hemi:{: is said
to have challenged the ca' VA fin' 'c" ..pet_fm'.on which is
pending consideréiion V'
5. In the pmseut appeal would take
a differefit in a normal circumstance, it
woulfig “have l:.See3;1V_V aijpxcpfiate to consider the appeai only
Vaftcx’ issiie cf.._notice to the respondent. However, in the
1 above mentioned facts leading to the tum.
of ctreutsivwoviiaitl indicate that insofar as the consideration of
T “”<_ "'£1:gejco1i"c:c:i:ne$s or othcxwise of the order dated 67.08.2008
V' by the Executing Court and the afiixmatieu of the
by the Lower Appeliaie Court in RA No.138/2008
wouid not survive for consideration in this appeal though the
J
"L
said order are impugned, since that is an aspeet V'
ultimately to be eonsnfiered in the dt u
the RRP No. 24/ 2008 which was a ptejinsfitnted
held. to be majntainable by ~.._Co1ir't :09 be » '
conskiened on its mezeits sinoedvdjjptesentltjfd '- ER? No.
24/ 2008 been Tofton . '
6. Therefore, Vefiveidienge to the
correctness 0; of Lmjtthat aspect of the
matter, my V\%ie;*.£r«.Vdees”316t.._s;u’vive for consideration in the
present apmu extent the appeai becomes
infruemons e$<<::ept'for that the findings rendered by
flvthedn would not bind the appellant
proceedings which would be considered
independyenttdéiéot' the present proceedings would decide the
"issue. .
The only other question which arises for
” Heonsidezation is that the Lower Appellate Court while
dismissing the appeal in RA.No.138/ 2008 has imposed
J
‘r
punitive costs on the appellant herein and the
imposing such costs has been indicated as it
process of Court. In this regard, tiiettiiiewer
has indicated that the appeilant tiespiteie’;–av_t’.jm” mg” ~.
to property has not pmducedi =§ioc11:me.nts. sihas it
instituted parallel p1oeee;iings..””” the tact that
this Court in HRRP Nofifisj .’2c~(S:3§vh§s.etIier;§1ci–.:hat the order
dated 18.10.2003 2008 as not
maintajnablgm: thexeafier since the RR?
No.24]’.3VO08. iA«.tV’_ieo1_1sidered on its merits, the
correctness-_ to the claim put forth
by tiieappefleint eonsidered in the said proceedings
Kittie proceedings therefore being inconsequential
I 2 iieensidezed as abuse of process. Further
cofisigderjzigtigxe fact that the imposition of costs is a course
V’8-xiaptetivvtietveen the litigant and the Court, I am of the View
it the instant case, even without notice to the
gfeépondent, the erder dated 12.91.2609 insofar as ixnposing
costs on the appellant require to be set aside and the same is
i
‘.
accordingly set aside. it is further made clear
appeal is ljmiteci only to the said aspect of V’
shall not be treated as a pmnoimcemeno
contaentions put forth by the
in respect of the property the isubjéof in = L’
execution case No. 134/ 2007 and…fike._sa;ne 1§éo’tL1ci’Ah;a;Ve to be
considextd in the
In terms “of t’i1e_ snfiafids disposed of.
No order ‘aéio xo;3sts.’7-I V
Sd/-3
Iudge