IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 3^RD DAY OF SEPTEMBER 2021

BEFORE

THE HON9BLE MR.JUSTICE ASHOK S. KINAGI

WRIT PETITION NO.46538 OF 2018 (GM-CPC)

BETWEEN:

SRI G MANOJ KUMAR

S/O GANAPATHILAL BOHRA,

AGED ABOUT 42 YEARS

R/AT 1^ST MAIN,

VIVEKANANDANAGAR,

CHANNARAYAPATNA - 577 201.

...PETITIONER

(BY SRI. MANJUNATH PRASAD H N, ADVOCATE)

AND:

1 . SRI C A MAHESH

S/O C R ADISHETTY,

AGED ABOUT 61 YEARS

R/AT J C ROAD

NEAR KANNA BAKERY &

PREMIER STUDIO,

MYSURU-570 001.

2 . SRI CHETHAN

S/O CHANDRASHEKAR

AGED ABOUT 46 YEARS

R/AT GAYATHRI EXTENSION,

CHANNARAYAPATNA - 577 201.

&.RESPONDENTS

2

(BY SRI. SATISHA D J, ADVOCATE FOR C/R-2

R-1 SERVED UNREPRESENTED)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227

OF

THE

CONSTITUTION

OF

INDIA

PRAYING

TO

QUASH THE IMPUGNED ORDER DTD 19.09.2018 VIDE

ANNX-E PASSED IN EXE.PETN.NO.97/2017 ON THE FILE

OF SENIOR CIVIL JUDGE & JMFC., CHANNARAYAPATNA.

THIS WRIT PETITION COMING ON FOR PRELIMINARY

HEARING IN 8B9 GROUP THIS DAY, THE COURT MADE THE

FOLLOWING:

O R D E R

The petitioner aggrieved by the order dated

19.09.2018, passed in Execution Petition No.97/2017

by the Senior Civil Judge, Channarayapatna, has filed

the present writ petition.

2. Brief facts leading rise to filing of this petition

are as under:

The petitioner has filed a suit in O.S.No.45/2015

for the relief of specific performance of contract

against the respondent No.1 and father of respondent

No.2. The said suit came to be decreed by judgment

3

and decree dated 21.06.2017. Petitioner filed an

execution petition in Ex.P.No.97/2017. Respondent

No.2 filed an application under Order XXI rule 97 of

CPC. Petitioner filed objections to the said application.

The Trial Court passed the impugned order holding

that the application filed by the respondent No.2 is

maintainable and permitted respondent No.2 to lead

his evidence in support of his claim. Hence this writ

petition.

3. Heard learned counsel for petitioner and

learned counsel for respondents.

4. Learned counsel for the petitioner submits

that respondent No.2 is not claiming any independent

title, on the contrary he is claiming title through

defendant No.2 in the suit in O.S.No.45/2015. He

further submits that the Trial Court has committed an

error in passing the impugned order. In support of his

4

contention, he has placed reliance on the judgment of

this Court in the case of RAMACHANDRA VS. KEMPAMMA

&

ORS.

[AIR

2003

KARNATAKA 251]

and M/S.

PYRAMID

ENTERTAINMENT

(INDIA)

OVT.

LTD.,

BANGALORE

VS.

SMT.

DIVYA

DEVI

[AIR

2018

KARNATAKA 93]. He further submits that the father of

respondent No.2 was defendant No.2 in the suit in

O.S.No.45/2015 and his written statement was taken

on record subject to payment of cost. In fact, the

father of respondent No.2 did not pay the cost. Hence

the written statement was taken as nil. Further the

suit filed by the petitioner was decreed holding that

the father of respondent No.2 is not a bona fide

purchaser. He further submits that when the father of

respondent No.2 has no right, title or interest over the

schedule property, the father of respondent No.2 has

no right to bequeath the property in favour of

respondent No.2. He submits that the Trial Court has

5

committed an error in passing the impugned order.

Hence, on these grounds, he prays to allow the writ

petition.

5.

Per

contra,

learned

counsel

for

the

respondents submits that prior to filing of the suit, the

property was already registered in the name of

respondent No.2. Hence the judgment and decree is

not binding on respondent No.2. He further submits

that the application filed by respondent No.2 is

maintainable. In order to buttress his arguments, he

has placed reliance on the judgment of Hon'ble Apex

Court in the case of SHREENATH & ANR. VS. RAJESH &

ORS. [AIR 1998 SC 1827], N.S.S.NARAYANA SARMA

& ORS. VS. M/S. GOLDSTONE EXPORTS (P) LTD. &