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
2″
– 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
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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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