IN THE HIGH COURT OF KARNATAKA, AT DHARWAD

DATED THIS THE 11^TH DAY OF DECEMBER, 2025

BEFORE

THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

WRIT PETITION NO. 101217 OF 2024 (GM-CPC)

BETWEEN:

SRI. HOLEBASAYYA @ HOLEBASU

S/O SIDDAPPA BALASHETTI,

AGED 47 YEARS, OCC. AGRICULTURE,

R/AT: GALAGALI, TQ. BILAGI,

DIST. BAGALKOT.

… PETITIONER

(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)

AND:

SMT. SHARADA

W/O BASAVAPRABHU BALASHETTI,

AGE. 61 YEARS, OCC. AGRICULTURE,

R/AT: GALAGALI, TQ. BILAGI,

DIST. BAGALKOT-587 101.

… RESPONDENT

(BY SRI. B.S. KAMATE, ADVOCATE)

C L K A A H X T A M T N I A M D N R A A N S I HEKAR

D C L K D 11 A A H i a g : X t T 2 A i e t M T 1 N : a I : 2 l A M 1 D l 0 y N 8 R A 2 s A + N 5 ig S . 0 I 1 n H 5 2 e 3 E . d 1 0 K 6 b A y

R THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF

THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR DIRECTION AND SET ASIDE THE ORDER PASSED BY THE SENIOR CIVIL JUDGE BILAGI, IN E.P. NO.16 OF 2022 ALLOWING THE I.A. NO.3 IN FAVOUR OF THE RESPONDENT BY ORDER DATED 02/12/2023, COPY AS PER ANNEXURE-L, BEING IN

VIOLATION OF ORDER 21 RULE 35 OF CPC., AND ETC.

THIS PETITION COMING ON FOR ORDERS, THIS DAY,

ORDER WAS MADE THEREIN AS UNDER:

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)

Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.

2. This petition is filed against the order dated

02.12.2023 passed on I.A. No.3 in E.P. No.16/2022 by the Senior Civil Judge, Bilagi directing delivery of possession against the petitioner. Learned counsel for the petitioner has raised the following contentions:

i) The application under Order XXI Rule 35 of the Code of Civil Procedure (‘Code’) is hit by principle of res- judicata as earlier application seeking similar relief is dismissed as withdrawn.

ii) In the final decree proceeding, there were more than one respondents and the decree for possession is sought to be executed against only the petitioner without impleading other respondents who are also in joint possession.

3. Learned counsel for the respondent would submit that the remaining respondents who are parties to the final decree proceedings are not in possession of the property. And only the present petitioner is in possession of the property as such, the petition is filed only against the present petitioner. The earlier application under Order XXI Rule 35 of the Code is dismissed as not pressed as the application had some errors and the second application under Order XXI Rule 35 is not barred.

4. The Court has considered the contentions raised at the Bar and perused the records.

5. It is to be noticed that earlier application under Order XXI Rule 35 of the Code is not dismissed on merits. There is no adjudication relating to the maintainability of the said application. Noticing the error, the petitioner has not pressed the application, as such, same is dismissed as not pressed. Thus, the second application under Order XXI to Rule

35 of the Code is neither barred under law nor is it by principle of res-judicata.

6. The decree holder can file any number of execution petitions as long as the execution petition is in time. There is no bar as such to file successive execution applications. Applying the same analogy, the second application under Order XXI Rule 35 of the Code is not barred.

7. As far as the contention that the execution petition is not maintainable for not impleading other respondents who are parties to the final decree proceeding, the Court is of the view that the respondent has made a statement in the petition that other respondents in the final decree proceedings have not objected to the petitioner seeking possession of the property and they are not in possession of the property.

8. It is the specific assertion of the respondent/decree holder that only the present petitioner is in possession of the properties in question.

9. Under the circumstances, decree holder seeks possession against the present petitioner. Henc