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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
SURAJ GOVINDARAJ, J.
Dada S/o Balu Rooge – Appellant
Versus
Appasaheb S/o Kiran Keste – Respondent
Writ Petition No. 102158 of 2021 (GM-CPC)
Decided on : 16-06-2022
Karnataka Land Reforms Act - Sections 79-A, 79B, 22(1)(a) , 22 , 22(2) - Civil Procedure Code,1908 - Order 21 Rule 34 - Transfer of Property Act - Clause (f) of Sub-section (1) of Sections 55, and 52 - Execute a sale deed agreement of sale - Seeking for a decree of specific performance - Setting aside the Judgment and decree Petitioners are Judgment debtors and respondents are decree holders in Execution Petition pending on file of Prl. Senior Civil Judge - Respondents who are plaintiffs had filed a suit against the petitioners in before Senior Civil Judge, seeking for a decree of specific performance and a direction to the petitioners herein to execute a sale deed in respect of the suit land as per the agreement of sale - Petitioners entered appearance through their counsel, the petitioners allege that due to mistake on part of the counsel, written statement on behalf of petitioners was not filed, suit proceeded to trial and the trial Court decreed suit vide Judgment in pursuance of which a decree was drawn up - petitioners filed Mis. No.60/2014 under Order 9 Rule 13 of CPC seeking for setting aside the Judgment and decree which also came to be dismissed for non-prosecution - Held, plaintiff has not sought a relief of possession in a suit for specific performance, but had only sought the prayer for execution of the sale deed, the Execution Court can issue a delivery warrant directing the Judgment debtor to handover possession of property, subject matter of specific performance to the decree holder, upon the Decree-Holder performing all obligations as stated in the decree. Such an order would be within purview of Subsection (3) of Section 28 of the Specific Relief Act, 1963 - issuance of delivery warrant upon decree holder having complied with the directions of the decree would come within the purview of clause (3) of Subsection 3 of Section 28 of the Specific Relief Act and same being a statutory right which comes into force only after a decree is passed and the terms of the decree are complied - petitioner had earlier challenged the order passed on IA No.1 directing the Commissioner to execute a sale deed. The sale deed having been registered and executed challenging the orders on IA-1 came to be dismissed as infructuous, the said order has attained finality. Since the writ petition has been withdrawn and attained finality - Arguments were advanced in relation thereto and the same has been considered by this Court in point No.1 above, the same would not enure to the benefit of the petitioners now - Writ petition stands dismissed.
ORDER :
1. The petitioner is before this Court seeking for the following reliefs:
2. Brief facts of the case are:
2.1. The petitioners are Judgment debtors and respondents are decree holders in Execution Petition No.73/2014 pending on the file of the Prl. Senior Civil Judge, Chikodi.
2.2. The respondents who are plaintiffs had filed a suit against the petitioners in O.S.No.65/2010 before the Senior Civil Judge, Chikodi seeking for a decree of specific performance and a direction to the petitioners herein to execute a sale deed in respect of the suit land as per the agreement of sale dated 29.03.2008.
2.3. Though the petitioners entered appearance through their counsel, the petitioners allege that due to the mistake on part of the counsel, written statement on behalf of petitioners was not filed, the suit proceeded to trial and the trial Court decreed the suit vide Judgment dated 26.06.2013 in pursuance of which a decree was drawn up.
2.4. The petitioners filed Mis. No.60/2014 under Order 9 Rule 13 of CPC seeking for setting aside the Judgment and decree dated 26.06.2013 which also came to be dismissed for non-prosecution on 9.08.2017. Prior to the dismissal of Mis. Petition No.60/2014, the respondents filed Execution proceedings in E.P.No.73/2014. The petitioners thereafter filed first appeal in RFA No.100033/2021 on 12.01.2021 challenging the judgment and decree passed in O.S No. 65/2010. Though the said RFA is pending, there is no stay of the execution proceedings ordered in the said appeal.
2.5. The petitioners on being served in the execution proceedings, entered appearance through their counsel, petitioner No.1 filed statement of objections to the execution petition which came to be adopted by petitioner No.2 by filing a memo. Petitioner No.1 had also filed additional objections subsequently.
2.6. In the Statement of objections, petitioner No.1 has contended as under:
2.6.1. The advocate engaged by the petitioners earlier in O.S No.65/2010 had colluded with the respondents herein. The said advocate failed to file written statement and the suit came to be decreed ex-parte which came to the knowledge of the petitioners only on 05-09-2014, as they are illiterates and relied on the advocate.
2.6.2. The respondents are in money lending business under the style and name M/s Dhanalaxmi Finance Corporation and M/s Laxmi Finance Corporation. The petitioners have borrowed money from these business and has no intention of selling the suit property. 2.6.3. The present valuation of the suit property is more than a crore rupees.
2.6.4. Since there is no specific prayer for relief of possession, the right to possession does not accrue to the respondents.
2.6.5. The suit land is in the name of one Marudevi who has not been impleaded in the suit as such she is not bound by the decree consequently the respondents are not entitled to the suit property.
3. Respondents filed IA-1 in the said execution proceedings seeking appointment of Court Commissioner to execute a registered sale deed in favour of respondents. The said application came to be allowed on 30.08.2018.
4. The Execution Court taking note of the fact that a draft sale deed has been furnished and no objections have been filed by the petitioners was of the opinion that in terms of the decree passed in O.S No.65/2010, the petitioners are liable to execute a sale deed in respect of the suit schedule property in favour of the decree holders as per the agreement dated 29.03.2008. The execution Court not being empowered to go beyond the decree was of the opinion that it was just and proper to appoint a Court Commissioner for the purpose of executing a registere
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