The High Court
Case Details
- 1 - NC: 2025:KHC:21786 W.P. No.13022/2018 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.13022/2018 (GM-CPC) …PETITIONER Digitally signed by RUPA V Location: High Court of karnataka BETWEEN: SRI. ANJINAPPA S/O PILLAPPAIAH AGED ABOUT 45 YEARS R/AT. TALAHALLI VILLAGE NANDI HOBLI, CHIKKABALLAPUR. (BY SRI. NABEEL, ADV., FOR SRI. H.V. MANJUNATHA, ADV.,) AND: SRI. LAKSHMAIAH SINCE DEAD BY HIS LR'S. a) SMT. NAGAMMA W/O LATE B. LAKSHMAIAH AGED ABOUT 75 YEARS. b) SRI. B. MUNIGOWDA S/O LATE B. LAKSHMAIAH AGED ABOUT 55 YEARS. c) SRI. B.L. NAGARAJU S/O LATE B. LAKSHMAIAH AGED ABOUT 45 YEARS. ALL ARE R/AT. TALAHALLI VILLAGE NANDI HOBLI, CHIKKABALLAPUR-562103.
Legal Reasoning
(BY SRI. AMEYA FADNIS, ADV.,) …RESPONDENTS - 2 - NC: 2025:KHC:21786 W.P. No.13022/2018 HC-KAR THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DTD:14.2.2018 MADE ON APPLICATION FILED BY THE PETITIONER UNDER SECTION 47 R/W ORDER XXI RULE 29 AND SECTION OF CPC TO STAY FURTHER PROCEEDINGS OF EXECUTION PETITION NO.17/2007 ON THE FILE OF ADDITIONAL CIVIL JUDGE [JR DN] AND JMFC, AT CHIKKABALLAPURA AT ANNEXURE-A AND ALLOW THE APPLICATION FILED BY THIS PETITIONER AT ANNEXURE-B & ETC. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking the following prayers: "a) to set aside the order dated 14.02.2018 made on application filed by the petitioner under section 47 R/w order XXI Rule 29 and section 151 of CPC to stay further proceedings of execution petition No.17/2007 on the file of Additional Civil Judge (Jr. Dvn) and JMFC at Chikkaballapura at Annexure-A and allow the application filed by this petitioner at Annexure-B b) To pass such other order as deems fit in view of the above said facts and circumstances in the interest of justice and equity." 2. Sri.Nabeel, learned counsel appearing for Sri.H.V.Manjunatha, learned counsel of the petitioner submits that the respondent/decree holder, who is plaintiff in O.S.No.26/2003, filed an Execution Petition No.17/2007 before the I Additional Civil Judge & JMFC, Chickaballapur (for short, 'the Execution Court') seeking execution of the judgment and - 3 - NC: 2025:KHC:21786 W.P. No.13022/2018 HC-KAR decree in O.S.No.26/2003 and in the said proceedings, the petitioner has filed an application under Section 47, Order No.XXI Rule 29 read with Section 151 of CPC seeking to stay the further proceedings in the said execution case. It is submitted that O.S.No.26/2003 filed by the respondent decreed exparte by granting decree of permanent injunction against the petitioner from causing interference with the respondent- plaintiff's possession and enjoyment over the suit schedule property mentioned in the suit. Being aggrieved by the judgment and decree in O.S.No.26/2003, the petitioner has filed R.A.No.160/2006, which came to be dismissed. It is further submitted that the petitioner has filed O.S.No.232/2006 seeking the relief of declaration of title and permanent injunction against the respondent herein, which suit came to be decreed, and thereafter, respondent has challenged the same in R.A.No.99/2014 which was allowed and the judgment and decree in O.S.No.232/2006 was set aside. Being aggrieved, the petitioner has filed RSA No.223/2015 before this Court, which is still pending. It is further submitted that if the execution Court proceeds to execute the judgment and decree in O.S.No.26/2003, the rights of the petitioner would be severely - 4 - NC: 2025:KHC:21786 W.P. No.13022/2018 HC-KAR affected as the petitioner has filed O.S.No.232/2006 seeking the relief of declaration and permanent injunction in regard to the same suit schedule property, which is the subject matter in the second appeal before this Court and till the second appeal is disposed of, the execution Court be restrained from proceeding further with the matter. Hence, he seeks to allow the petition. 3. Per contra, Sri.Ameya Fadnis, learned counsel appearing for respondent Nos.1(a to c) supports the impugned order of the execution Court and submits that the execution petition filed by the respondent is to execute the judgment and decree in O.S.No.26/2003 and that judgment is available to be executed as the appeal filed against the said judgment in R.A.No.160/2006 came to be dismissed by the appellate Court. It is further submitted that RSA No.223/2015 filed by the petitioner is arising out of O.S.No.232/2006, hence, there cannot be any stay of the proceedings in the execution petition. It is also submitted that the petitioner ought to have sought interim protection in the pending RSA No.223/2015 and nothing is progressed in the said appeal. Hence, he submits that there - 5 - NC: 2025:KHC:21786 W.P. No.13022/2018 HC-KAR cannot be any stay of the proceedings before the Execution Court and seeks to dismiss the petition. 4. I have heard the arguments of the learned counsel appearing on both sides and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced on both sides. 5. The pleading and material on record indicate that the respondent herein has filed O.S.No.26/2003 before the Additional Civil Judge (Jr.Dvn) & JMFC, Chikkabalapur, seeking the relief of permanent injunction. Admittedly, the said suit came to be decreed restraining the petitioner from causing interference to the respondent's possession and enjoyment over the suit schedule property. The said suit was uncontested, as the petitioner could not appear in the said suit. The petitioner has challenged the said judgment and decree passed in O.S.No.26/2003 before the appellate Court in RA No.160/2006, which came to be dismissed on 19.11.2014. Later petitioner has filed O.S.No.232/2006 against the respondent herein seeking the relief of declaration of title and permanent injunction with regard to the suit schedule property, - 6 - NC: 2025:KHC:21786 W.P. No.13022/2018 HC-KAR which includes the property covered in O.S.No.26/2003. The subject matter of the suit schedule property in O.S.No.26/2003 is also covered in the said suit schedule property in O.S.No.232/2006. The said suit is decreed declaring the petitioner as an absolute owner and restrained the defendant from interfering with the possession of the suit schedule property vide judgment dated 24.04.2014. Being aggrieved by the judgment and decree in O.S.No.232/2006, the respondent has filed R.A.No.99/2014, which came to be allowed on 20.10.2014. Being aggrieved by the judgment and decree in R.A.No.99/2014, the petitioner has preferred second appeal in RSA No.223/2015 before this Court. During the pendency of these proceedings, the respondent filed an execution case in Execution Petition No.17/2007 seeking to execute the judgment and decree passed in O.S.No.26/2003 and in the said proceedings, the petitioner has filed an application under Section 47, under Order XXI Rule 29 read with Section 151 of CPC seeking prayer to stay further proceedings of the execution petition till the disposal of the RSA No.223/2015. The execution Court, considering the same, has recorded the finding that - 7 - NC: 2025:KHC:21786 W.P. No.13022/2018 HC-KAR there is no interim order passed in RSA No.223/2015 and rejected the said application. 6. It would be useful to extract relevant provision of law i.e., Order XXI Rule 29 of CPC, which reads as under: "29. Stay of execution pending suit between decree-holder and judgment-debtors.—Where a suit is pending in any Court against the holder of a decree of such Court [or of a decree which is being executed by such Court, on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided: [Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing.] Karnataka.- In Order XXI, in the rule 29, for the words "on the part of the person against whom the decree was passed", substitute the words" instituted by the said decree was the person against whom passed".(w.e.f.30-3-1967)" 7. The aforesaid provision makes it clear that where a suit is pending in any Court against the holder of a decree of such Court against whom the said decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided. - 8 - NC: 2025:KHC:21786 W.P. No.13022/2018 HC-KAR 8. It is not in dispute that the judgment and decree in O.S.No.26/2003 filed by respondent was an exparte decree. No doubt, the appeal filed by the petitioner challenging the said judgment and decree in R.A.No.160/2006 came to be dismissed; in other words, the judgment and decree in O.S.No.26/2003 has attained finality. However, this Court cannot lose sight of the fact that later the petitioner has filed a suit in O.S.No.232/2006 seeking for the relief of title and permanent injunction against the very same respondent which was decreed; later in the appeal in R.A.No.160/2006 it was reversed and the same was challenged in RSA.No.223/2015, which is pending. 9. The parties to the proceedings are disputing the possession and title with regard to the very same subject matter of the property that was covered in O.S.No.26/2003. If the execution Court is allowed to execute the decree in O.S.No.26/2003, the very object of filing RSA No.223/2015 would be defeated and would cause prejudice to the petitioner. 10. The execution Court while exercising power under Order XXI Rule 29 of CPC is required to look into the very - 9 - NC: 2025:KHC:21786 W.P. No.13022/2018 HC-KAR object of the said rule, if any pending suit/appeal arising out of the same subject matter of the property between the same parties, the executing Court ought to have exercised the discretionary power conferred on it under Order XXI Rule 29 of CPC in a judicious manner. The rejection of the application filed by the petitioner under the aforesaid provision of law solely on the ground that there is no interim order operating in RSA No.223/2015 may not be correct. Hence, in my considered view, the staying of proceedings in the Execution Petition No.17/2007 would not cause any prejudice to the respondent, on the other hand, if the execution case is allowed to proceed, it would cause multiplicity of proceedings and create chaos between the parties with regard to the possession. The interest of justice would be met if the execution Court is restrained from proceeding with Execution Petition No.17/2007 till the disposal of RSA No.223/2015 pending before this Court. 11. However, it is made clear that this Court has not made any observation with regard to the possession over the suit schedule property. - 10 - NC: 2025:KHC:21786 W.P. No.13022/2018 HC-KAR 12. For the aforementioned reasons, I proceed to pass the following: i. ii.
Decision
ORDER The writ petition is allowed. The impugned order dated 14.02.2018 passed on the application filed under Section 47, under Order No.XXI Rule 29 read with Section 151 of CPC in Execution Petition No.17/2007 by the I Additional Civil Judge & JMFC, Chickaballapur is hereby set aside. iii. The execution Court is hereby directed to stay the further proceedings in Execution Petition No.17/2007 till the disposal of RSA No.223/2006 pending before this Court OR to close the said execution proceedings with liberty to the respondent-decree holder to file a fresh execution petition after disposal of RSA No.223/2006 pending before this Court. iv. I.A.No.1/2018 is dismissed as not pressed and other pending IAs. are closed. v. No orders as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 3