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1991 Supreme(Kar) 536

Karnataka High Court
PARVATHIBAI - Appellant
Versus
DATTATREYA JANARDHAN DHOPESHWARKAR - Respondent
Decided On : 12-09-91
C.R.P. : 2789 of 1986

Advocates:
K.I.BHATTA, S.G.SUNDARA SWAMY, S.R.Shinde, V.TARKARAM

The transferee from the decree-holder can seek relief in execution proceedings by stepping into the shoes of the decree-holder, and the execution proceedings do not come to an end after the disposal of a special leave petition.

Headnote:

CIVIL REVISION PETITIONS - Execution Proceedings - Order 21, Rule 16, CPC - Summary

Fact of the Case:

The petitioner filed two applications under Order 21, Rule 16 and Section 151 of the CPC seeking permission to continue the execution and to take the certified copy of the plan as part of the final decree. The opponent resisted the applications, claiming that the proceedings had ended after the disposal of the special leave petition by the Supreme Court.

Finding of the Court:

The lower court held that the execution proceedings had come to an end after the disposal of the special leave petition and rejected both applications. The court also rejected the application to take the certified copy of the plan as part of the final decree, deeming it a 'got up' document.

Issues: 1. Whether the application under Order 21, Rule 16, CPC for continuation of the execution proceedings is maintainable? 2. Whether the execution proceedings had come to an end after the disposal of the special leave petition? 3. Whether the application to take the certified copy of the plan as part of the final decree is valid?

Ratio Decidendi: The court held that the application under Order 21, Rule 16, CPC for continuation of the execution proceedings is maintainable, as the transferee from the decree-holder can seek relief in execution proceedings by stepping into the shoes of the decree-holder. The court also ruled that the execution proceedings had not come to an end after the disposal of the special leave petition. Additionally, the court found that the application to take the certified copy of the plan as part of the final decree was valid, as the certified copy was deemed to be a true copy of the original map.

Final Decision: The court allowed the revision petitions, set aside the lower court's order, and directed the lower court to complete the proceedings within two months.

K. J. SHETTY, J.

( 1 ) THESE civil revision petitions are directed against the orders passed on i. a. nos. Vii and viii by the court of the second additional civil judge, belgaum, dated 3-4-1986 in execution case No. 26 of 1964 rejecting the i. as. Holding that the proceeding has come to an end after the disposal of the special leave petition by the Supreme Court on its file.

( 2 ) SINCE these revision petitions arise out of a common order they are clubbedand disposed of by this court by a common order.

( 3 ) BRIEF facts of the case are:-Smt. Parvathibai wife of balram haibatti, the petitioner, has filed two applications i. as. Vii and viii, the former under order 21, Rule 16 and the latter under Section 151 of the code of the civil procedure (hereinafter referred to as the 'cpc' ). Her first application is for seeking permission to continue the execution and the second one is for taking the certified copy of the plan along with the separate list as part of the final decree, and possession of the property shown in the said plan to be handed over to her.

( 4 ) THE case in brief is that the opponent nos. 1 to 4 had filed o. s. No. 47 of 1949in the court of the i additional civil judge, belgaum against opponents 5 to 10 for partition and separate possession of their share in the suit schedule properties. In the said suit, a preliminary decree was passed declaring that the opponents 1 to 4 are entitled to 5/9th share in the suit properties. They filed execution case in question for passing final decree. The i additional civil judge, belgaum had passed a final decree on 15-11-1974 allotting the portion marked as a, b, c, d, e, f, g, h, i and a to the decree-holders - opponents 1 to 4 and directing the decree-holders to pay Rs. 5,892/- to the judgment-debtors - opponents 5 to 10 to equalise the share. The order passed in the execution case leading to the final decree was challenged by opponent No. 5 in execution first appeal No. 7 of 1975 before this court. The said appeal was dismissed by this court by an order dated 1-7-1981. Being aggrieved by the said Order, the judgment-debtor-opponent 5 preferred a special leave petition before the Supreme Court. That also came to be dismissed on 2-4-1982. The decree-holders - opponents 1 to 4, in the execution case filed by them, have prayed for putting them in separate possession of the property as shown in the hand sketch annexed to the final decree. They have also deposited a sum of Rs. 5,892/- in that court, on 25-9-1981. In the mean time, they transferred the decree in favour of the petitioner for a consideration of Rs. 50,000/- by executing a sale deed, dated 24-9-1977 which was registered on 27-9-1977. As such, she has stepped into the shoes of the original decree-holder and claimed that she is entitled to execute the said decree. In the application filed by her, she sought for substitution of her name in the place of the name of the original decree-holder, in the execution petition. The opponent No. 5 resisted the application by filing objections to the said la. No. Vii. The other opponents No. 6 to 10 have not filed objections and they have been placed ex-parte.

( 5 ) IN the objection statement, opponent No. 5 (judgment-debtor) has admitted,the passing of the preliminary decree in o. s. No. 47 of 1949 declaring that opponents 1 to 4. (decree-holders) are entitled to 5/9th share. He has denied the final decree drawn in the execution but has admitted that it is a fact that he had filed the execution first appeal No. 7 of 1975 before this court against the order passed by the learned civil judge, belgaum, and the same was dismissed. Thereafter, preferred a special leave petition to the Supreme Court which also came to be dismissed. Unless and until a final decree is drawn, the question of putting the decree-holders - opponents 1 to 4 in actual possession does not arise. Further, they denied that decree-holders - opponents 1 to 4 have transferred the decree in favour of the applicant for




























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