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2026 Supreme(Online)(Kar) 11518
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
Ashok S. Kinagi, J
SURESH S/O. BHIMARAYA PATIL – Appellant
Versus
HANUMANTH S/O. LAXMAN KARIGAR – Respondent
WRIT PETITION NO.104651 OF 2023 (GM-CPC)
For the Appellants/Petitioners: Shivaraj P. Mudhol
For the Respondents:
An executing court cannot modify the terms or the extent of the property granted in a decree; any such modification must be sought through an amendment of the plaint or modification of the decree in the original suit.
Headnote:The petitioner approached the court under Article 227 of the Constitution of India challenging an order passed in execution proceedings. The petitioner had previously obtained a decree for specific performance of a contract for 2 acres 2 guntas of land in O.S. No.102/2007. During the execution of the decree in EP No.20/2016, the petitioner filed I.A. No.IV seeking to restrict the claim to 1 acre 35 guntas on the grounds that the respondent had sold a portion of the property to a third party. The Executing Court rejected the application. The primary issue was whether the Executing Court could modify the extent of the property mentioned in the decree. The court held that an executing court cannot go beyond the scope of the decree. It further observed that any alienation of property during the pendency of proceedings is hit by Section 52 of the Transfer of Property Act. The court reasoned that if the petitioner intended to restrict the claim, the appropriate remedy was to seek an amendment of the plaint and modification of the decree in the original suit. The writ petition is dismissed
| Table of Content |
|---|
| 1. background of the specific performance suit and subsequent execution proceedings. (Para 1 , 2 , 3 , 4 , 9) |
| 2. petitioner's request to restrict the claim due to third-party property alienation. (Para 5 , 6 , 7) |
| 3. executing court's inability to modify a decree and the application of section 52 of the transfer of property act. (Para 8 , 10 , 11) |
Digitally signed by VIJAYALAKSHMI M KANKUPPI Location: HIGH COURT OF KARNATAKA
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED 01/06/2023 ON I.A. NO.IV IN E.P.NO.20/2016 PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC AT BANAHATTI VIDE ANNEXURE-E, AND TO ALLOW THE I.A. NO.IV BY ALLOWING THIS WRIT PETITION IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
1. The petitioner filed this writ petition challenging the order on I.A. No.IV dated 01.06.2023 passed in EP No.20/2016 by the Learned Senior Civil Judge and JMFC, Banahatti.
2. Brief facts, leading rise to the filing of this petition are as follows:
The petitioner filed a suit against the respondent in O.S. No.102/2007 seeking the relief for specific performance of a contract. The said suit was decreed, and the respondent was directed to execute a registered sale deed in favour of the petitioner.
3. Despite the passing of decree, the respondent did not execute the registered sale deed in terms of the decree passed in O.S. No.102/2007. Consequently, the petitioner filed an Execution Petition in EP No.20/2016 before the Learned Senior Civil Judge and JMFC, Banahatti.
4. During the pendency of the Execution Petition, the petitioner filed I.A. No.IV seeking a directions to the Court Commissioner to execute a registered sale deed to the extent of 1 acre 35 guntas instead of 2 acres 2 guntas in R.S. No.18/6 of Sasalatti village. The respondent filed objections to the said application. The Executing Court, after hearing the learned counsel for the parties, rejected I.A. No.IV vide order dated 01.06.2023. The petitioner, aggrieved by the order on I.A. No.IV, filed the present writ petition.
5. Despite of service of notice on respondent, he remained unrepresented before this Court.
6. Heard the arguments of learned counsel for the petitioner.
7. Learned counsel for the petitioner submitted that during the pendency of the Execution Petition, the respondent sold a portion of the property in favour of a third party. Therefore, the petitioner sought to restrict his claim to the extent of 1 acre 35 guntas, and prayed that the Court Commissioner be directed to execute a registered sale deed to that extent, as per the decree passed in O.S. No.102/2007. He submits that the Executing Court erred in rejecting the application. Hence on these grounds, prays to allow the writ petition.
8. Perused the records and considered the submissions of the learned counsel for the petitioner.
9. It is an undisputed fact that the petitioner filed a suit in O.S. No.102/2007 seeking the relief of specific performance of a contract on the ground that the respondent had agreed to sell the suit property to the petitioner, and failed to comply with the terms of the agreement. The suit was decreed vide judgment and decree dated 05.01.2011. Subsequently, the respondent did not execute the registered sale deed, leading to the filing of the Execution Petition EP No.20/2016.
10. During the pendency of the Execution Petition, the respondent sold a portion of the property to a third party. Thereafter, the petitioner filed I.A. No.IV to restrict his claim to the extent of 1 acre 35 guntas and sought a direction for execution of a sale deed to that extent. The Executing Court rightly observed that the decree in O.S. No.102/2007 was for 2 acres 2 guntas. The Executing Court cannot go
