Writ Petition No. 16924 of 2025 · The High Court
Case Details
- 1 - NC: 2025:KHC:20301 WP No. 16924 of 2025 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 16924 OF 2025 (GM-CPC) BETWEEN: 1. SRI. SHIVASAMY S/O LATE HONNEGOWDA AGED 57 YEARS 2. SRI. KUMARASWAMY S/O LATE HONNEGOWDA, AGED 65 YEARS, 3. SRI. NANJUNDAPPA S/O LATE HONNEGOWDA AGED 65 YEARS
Legal Reasoning
4. SRI. PRAKASH, S/O LATE HONNEGOWDA AGED 59 YEARS P1 - P4 ARE RESIDING AT CHAGACHAGERE VILLAGE - 573 164, GANDASI HOBLI, ARASIKERE TALUK. 5. SMT. KAMALAMMA, W/O RANGEGOWDA, RESIDING AT MADAGUDDANAHALLI VILLAGE - 562 157, CHANNARAPATNA TALUK. Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - NC: 2025:KHC:20301 WP No. 16924 of 2025 HC-KAR 6. SMT. HONNAMMA, W/O SHIVEGOWDA, R/O CHAGACHAGERE VILLAGE - 573 164, GANDASI HOBLI, ARASIKERE TALUK. (BY SRI. D. PRABHAKAR, ADVOCATE) AND: SRI. C.H. HONNEGOWDA, MAJOR, S/O LATE HONNEGOWDA, R/O CHAGACHAGERE VILLAGE - 573 164, GANDASI HOBLI, ARASIKERE TALUK. …PETITIONERS …CAVETOR/RESPONDENT (BY SRI. A.V. GANGADHARAPPA, ADVOCATE) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 3.05.2025 PASSED ON IA NO. IV FILED U/S 41 RULE 5 R/WS 151 CPC IN RA NO.40/2024 VIDE ANNX-A PENDING ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC ARASIKERE AND ALLOW THE SAID APPLICATION AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC:20301 WP No. 16924 of 2025 HC-KAR CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA ORAL ORDER Heard Sri. D. Prabhakar, learned counsel appearing for the petitioners, Sri. A.V. Gangadharappa, learned counsel appearing for the caveator/respondent and have perused the material on record. 2. The petitioners are before this Court calling in question an order dated 03.05.2025 passed on an application filed under Order XLI Rule 5 read with Section 151 of the C.P.C., seeking an interim order of stay of the final decree. 3. A suit is instituted in the year 1981 in O.S.No.152/1981. A decree is passed on 26.10.1988. The final decree proceedings were instituted in the year 1990 in FDP No.8/1990. For conclusion of the final decree, it has taken 33 years, after which, an appeal is filed against the final decree in R.A.No.8/2023. In the said proceeding, since there was a delay of 39 days in preferring the appeal, the petitioners had - 4 - NC: 2025:KHC:20301 WP No. 16924 of 2025 HC-KAR preferred an application seeking condonation of delay. Notice is issued on the application seeking condonation of delay and the matter goes on before the Court for about 16 months, no order is passed on the condonation of delay. Without an order being passed on the condonation of delay, the application seeking stay of the order passed in final decree is not granted and could not have been granted in terms of order passed under Order XLI Rule 5 of the C.P.C. In the interregnum, the decree holder initiates execution proceedings seeking to enforce the decree or the final decree. In the said proceeding, the delivery warrant is issued by the concerned court. At that point in time, the petitioners file an application under Order XLI Rule 5 of the C.P.C., seeking stay of the final decree. The concerned Court on the following reasons, rejects the said application: "7. POINT NO.1: The execution proceedings is arise out of decree passed in O.S.No.152/1981 and FDP No.8/1990. The decree and final decree are not challenged by the Judgment debtors and no appeal is pending. The Decree holder paid for execution of decree by paying Decree holder on his allotted properties. After handing over the possession by Judgment debtors, the Judgment debtors have appeared before the Court and filed objections stating the Decree holder have not mentioned which properties have allotted to him and he is in his possession. Further the decree schedule properties mentioned as Item no. "N" comprised in Sy.No.34 mesuring 1 acre 15 guntas of Basavapura Village is subject matter of probate proceedings pending before - 5 - NC: 2025:KHC:20301 WP No. 16924 of 2025 HC-KAR Hon'ble District and Sessions Judge, Hassan regarding the bill dated 15.03.2014 executed by Judgment debtor No.4. Decree schedule properties are as follows: I. Landed properties situated at Chagachagere village: a) land bearing sy no 4/2 measuring 0.1/2 guntas, b) land bearing sy no 79/2 measuring 0.6 1/2 guntas, c) land bearing sy no 224 measuring 17 guntas,d) land bearing sy no 164/1b measuring 2 guntas, e) land bearing sy no 164/1C measuring 0.2 1/4 guntas, f) Land bearing sy no 102/3b measuring 3/4 guntas, g) land bearing sy no 102/3c measuring 3/4 guntas, h) land bearing sy no 103/6b measuring 0.1/2 guntas, l) Land bearing sy no 105/1b measuring 1/2 guntas, j) land bearing sy no 162/12 measuring 1/2 guntas,k) land bearing sy no 187/13 measuring 3 1/2 guntas,L) land bearing sy no 185/1 measuring 2 3/4 guntas. II. properties Basavanapura village as follows: Landed situated at M)land bearing sy no 10 measuring 22 3/4 guntas and n) land bearing sy no 34/1 measuring 13 3/4 guntas These properties are herein after referred as Decree schedule properties for further reference. 9. In his objections the Judgment debtor has mentioned pending of appeal filed by him before Hon'ble Senior Civil Judge and JMFC, Arasiekre. Further he has contended the properties cannot be effectively partitioned between the parties. The said objection is yet to be considered in this case. The notice to JDRs are served and at this stage this application is filed. 10. On going through the records, the decree holder has mentioned the extent as per the sketch in commissioner report. Now the decree holder relied on the boundaries mentioned in the sketch annexed to the Final decree and in FDP no 8/1990. On going through the Final decree and decree schedule properties, the decree holder has mentioned the details of 4 properties which are not included in the final decree proceedings in this case. Those properties are land bearing sy no 224 measuring - 6 - NC: 2025:KHC:20301 WP No. 16924 of 2025 HC-KAR 17 guntas, land bearing sy no 164/1C measuring 0.2 1/4 guntas, land bearing sy no 102/3C measuring 3/4 guntas, Land bearing sy no 105/1b measuring 1/2 guntas. But aspect of the division of the decreetal properties are considered and court commissioner has noted the definite share of the decree holder. The decree holder has sought for possession of the properties allotted to him. Therefore the contention of Judgment debtor No.4 cannot be considered. The aspect of partition is already dealt in the Final decree proceedings and in said proceedings no contention raised related to section 2 of Partition Act, 1893. Further at the time of drawing final decree this court has held all properties are eligible for division as per the decree. Therefore there is no ground made to consider the said aspect in this proceedings. At this stage this application is not maintainable. It is well settled law that executing court cannot go beyond decree. Already division is effected in final decree and already shares are decided in the final decree. Hence this application is liable to be rejected. Accordingly this Court answer Point no.1 in the Negative. POINT No.2:- In view of the finding on Point no.1, I proceed to pass the following:
Decision
ORDER I.A.No.I filed under section 2 of Partition Act 1893 is rejected. To hear on objections on execution petition by 02.09.2024." The entire reason rendered by the concerned Court is that application seeking condonation of delay is not yet decided, therefore, stay of the order cannot be granted. In the same breath, the Executing Court is now proceeding to execute the order. Therefore, the petitioners are before this Court. - 7 - NC: 2025:KHC:20301 WP No. 16924 of 2025 HC-KAR 4. The order sheet is appended to the petition. The order sheet is indicative of the fact that the application seeking condonation of delay has travelled for 16 months before the concerned Court for manifold reasons. The reasons are not required to be noticed here. 5. In the light of the matter being pending at the stage of condonation of delay and the stay application being rejected only on the ground that delay is not condoned, the concerned Court has contradicted itself. Therefore, to protect the rights of the parties or the rights to leave on frustration, I deem it appropriate to direct the concerned Court to pass an order on the application on the condonation of delay so filed along with R.A.No.40/2024 within an outer limit of one (1) week from the date of receipt of a copy of the order. After the order being passed on condonation of delay, the Court shall then consider the application under order XLI Rule 5 of the C.P.C., filed by the petitioners in R.A.No.40/2024 within one (1) week thereafter, after hearing the parties to the lis. - 8 - NC: 2025:KHC:20301 WP No. 16924 of 2025 HC-KAR 6. Since the suit is of the year 1981 and the final decree proceedings of the year 1990 and after 33 years, the Court has taken to pass a final decree, it is just and proper that the proceedings should expeditiously culminate. In that light, I deem it appropriate to direct the concerned Court to dispose the appeal, as expeditiously as possible, at any rate within three (3) months from the date of receipt of a copy of the order, if not earlier. 7. For the aforesaid reasons, the following: (i) (ii) ORDER The petition is allowed. The order dated 03.05.2025 rejecting an application under Order XLI Rule 5 of the C.P.C., passed by the Principal Civil Judge and JMFC, Arasikere, stands quashed. (iii) The matter stands remitted back to the hands of the concerned Court to decide the application within one (1) week from the date of receipt of a copy of the order. - 9 - NC: 2025:KHC:20301 WP No. 16924 of 2025 HC-KAR (iv) After deciding the application on condonation of delay within one (1) week as observed hereinabove, in the next one (1) week, the concerned Court shall pass necessary orders on application under Order XLI Rule 5 of the of C.P.C., as filed seeking stay of the final decree proceedings. Sd/- (M.NAGAPRASANNA) JUDGE SJK List No.: 1 Sl No.: 15 CT: BHK