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2024 Supreme(Online)(KAR) 32584
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2024 BEFORE THE HON'BLE MR JUSTICE N S SANJAY GOWDA CIVIL REVISION PETITION NO. 281 OF 2016 (EX)
BETWEEN:
KUMARA, S/O LATE SRI. MANEGARA NAYAKA, ABOUT 50 YEARS, R/AT D.No.3650, NEW No.L-4/1, LAKSHMIDEVAMMA TEMPLE STREET, VEERANAGERE, MYSURU.
…PETITIONER (BY SRI.N.VAGEESH., ADVOCATE)
AND:
1. SMT.LAKSHMAMA, W/O LATE NAGARAJU, AGED ABOUT 58 YEARS, 2. SMT.DHANALAKSHMI, D/O LATE SRI.NAGARAJU, Digitally signed by ABOUT 34 YEARS, KIRAN KUMAR R Location:
3. SMT. MEENAKSHI, HIGH COURT OF D/O LATE SRI.NAGARAJU, KARNATAKA ABOUT 32 YEARS, 4. SRI.SRINIVASA, S/O LATE SRI.NAGARAJU, AGED ABOUT 30 YEARS, 5. TRIVENI, D/O LATE SRI.NAGARAJU, AGED ABOUT 27 YEARS, R-1 TO 5 ARE R/AT No.3650/2 NEW No.L-4, ASHOKA WEST CROSS, No.27, LASHKAR MOHALLA, MYSURU-570 001.
MADAPPA, HINDU, MAJOR, S/O LATE SRI.BILIGIRI SIDDANAIAK, R/AT No.2589, 5TH CROSS, PADUVARAHALLI, MYSORE-570 002.
SINCE DEAD REPRESENTED BY R-6 TO 8
6. PUTTA ARASAMMA, AGED ABOUT 50 YEARS, W/O LATE SRI.MADAPPA, R/AT No.2589, 5TH CROSS, PADUVARAHALLI, MYSORE-570 002.
7. MANEGARANAIKA, AGED ABOUT 75 YEARS, S/O MANEGARA NAIKA, R/AT No.3620/1, LAKSHMIDEVI TEMPLE STREET, EARANAGERE, LASHKAR MOHALLA, MYSORE-570 001.
8. PUTTALAKSHMAMMA, AGED ABOUT 55 YEARS, W/O RACHAIAH, D/O LATE SIDDAIAH, R/AT DOOR NO.60/2 RATHNAMANAL COMPOUND, IRUDALAYAPURAM, ROBERTSONPET, KOLAR GOLD FIELD (KGF)563 122.
…RESPONDENTS (BY SRI. ROHIT SWAMY, ADVOCATE FOR R-1 TO R-5;
VIDE ORDER DATED 25.11.2016, NOTICE TO R-6 & R-8 IS DISPENSED WITH & TAKING STEPS IN RESPECT OF DECEASED R-7 IS NOT NECESSARY)
THIS CRP IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 10.06.2016 PASSED ON IA IN EXECTION PETITION No.136/2005 ON THE FILE OF THE II ADDITIONAL FIRST CIVIL JUDGE, (JR.DN) MYSURU, DISMISSING THE IA FILED UNDER SECTION 47 OF CPC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 26.03.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. A suit in O.S.No.2022/1989 was instituted seeking a declaration that Nagaraja, Rachamma (plaintiffs 1 and 2) and Puttalakshmamma (defendant No.4) were the owners of a residential house bearing No.3650. They also sought a declaration that they were not bound by the mortgage dated 18.09.1972 created by Madappa and Putta Arasamma (defendant Nos.1 and 2) in favour of Manegara Naika (defendant No.3). They have consequently sought a direction to be put in possession of the suit schedule property.
2. In the above said suit, defendants 1 and 2, who had created mortgage in favour of defendant No.3, together filed a joint written statement, but they did not choose to adduce any evidence.
3. This suit was decreed on 29.01.2005. Thus, plaintiffs 1, 2 and defendant No.4 were declared to be the owners of the suit schedule property and were also entitled to be put in possession.
4. In the year 2008, the wife of Manegara Naika, along with her three sons and a daughter, filed Misc. No.17/2008 under Order IX Rule 13 of the CPC for setting aside the judgment and decree passed in O.S.No.2022/1989. The Trial Court, however, rejected this petition. Being aggrieved by this dismissal, the wife of Manegara Naika and her children filed M.A.No.34/2008, which was allowed and the matter was remanded by an order dated
27.06.2015.
5. Parallelly, after the dismissal of Misc. No.17/2008, the two grandsons and a granddaughter of Manegara Naika filed an application under Order XXI Rule 97 of the CPC in the execution proceedings initiated by the plaintiffs — decree holders in Ex.No.136/2015 — seeking to obstruct the execution of the decree. The Executing Court, however, by an order dated 25.11.2015 dismissed said application. Being aggrieved by the dismissal of the application, the grandchildren of Manegara Naika preferred R.A.No.271/2016. The Appellate Court, however, by an order dated 20.03.2021 dismissed the appeal and since this order has not been challenged, the same has attained finality.
6. In the execution proceedings, the 3rd petitioner in Misc.No.17/2008 i.e., Kumara, one of the sons of Manegara Naika filed an application under Section 47 of the CPC requesting the Executing Court to dismiss the execution petition on the ground that the judgment and decree passed in O.S.No.2022/1989 on 29.01.2005 was a nullity, insofar as it related to Manegara Naika. The Executing Court by the impugned order dated 10.06.2016 has dismissed this Section 47 application and, as a consequence, he has preferred the present revision petition.
7. It may pertinent to state here that pursuant to the order passed in M.A.No.34/2008, by which the dismissal of Misc.No.17/2008 was set aside and the matter was remanded, the wife and children of Manegara Naika filed a memo seeking dismissal of Misc.No.17/2008 as withdrawn, stating that the 3rd petitioner therein had preferred a revision, and objections had been raised that parallel proceedings could not be pursued. The Trial Court accepted this memo and dismissed Misc.No.17/2008 as withdrawn.
8. Thus, as could be seen from the above, the attempt by the wife and children of Manegara Naika (defendant No.3 in O.S.No.2022/1989) to set aside the judgment and decree passed in O.S.No.2022/1989 by filing Misc.No.17/2008 came to an end by the withdrawal of the petition and they thus became bound by the decree.
9. As already stated above, the application under Order XXI Rule 97 of the CPC filed by the grandchildren of Manegara Naika to obstruct the execution of the decree was also dismissed and was also confirmed in appeal. As a consequence, the only proceeding which was pending was the application filed under Section 47 of the CPC which has been dismissed, and against which the present revision has been preferred.
10. The Trial Court by the impugned order has rejected the application under Section 47 of the CPC on the ground that Misc.No.17/2008 was dismissed and the application filed by the grandchildren of Manegara Naika was also dismissed a
