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IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

Dated this the 6^th day of March 2020

Before

THE HON9BLE MR. JUSTICE B.M. SHYAM PRASAD

Writ Petition No.139864 of 2020 (GM-CPC)

Between

Irappa

S/O. Kallappa Jitti @ Chitti

Age: 39 Years, Occ: Agriculture,

R/O: Hangaraki Village,

Tq and Dist: Dharwad.

...Petitioner

(By Sri. S.A.Sandur, Advocate for Sri. Aravind D.

Kulkarni, Advocate)

A n d

1.

Madiwalappa Bheemappa Jitti @ Chitti

Age: About 61 Years,

Occ: Agriculture,

R/O: Hangaraki Village,

Tq: And Dist: Dharwad

2.

Kallavva

W/O. Kallappa Jitti @ Chitti

Age: About 71 Years,

Occ: Agriculture And Household,

R/O: Hangaraki Village,

Tq: And Dist: Dharwad

2

3.

Shantavva

W/O. Goudappa Kundgol,

Age: About 51 Years,

Occ: Agriculture And Household,

R/O: Hangaraki Village,

Tq: Neeralakatti And

Dist: Dharwad

4.

Shankrawwa

W/O. Somanagouda Kalagoudar

Age: About 51 Years,

Occ: Agriculture And Household,

@ Shankrawwa

D/O. Kallappa Jitti @ Chitti

R/O: Hangaraki And Mugad Village,

Tq: Neeralakatti And

Dist: Dharwad

5.

Rudrappa Bheemappa Jitti @ Chitti

Age: About 71 Years,

Occ: Agriculture And Household,

R/O: Hangaraki Village,

Tq: And Dist: Dharwad

6.

Gangappa

S/O. Kallappa Jitti @ Chitti

Age: About 51 Years,

Occ: Agriculture And Household,

R/O: Hangaraki Village,

Tq: And Dist: Dharwad

7.

Basappa

S/O. Kallappa Jitti @ Chitti

Age: About 44 Years,

Occ: Agriculture And Household,

R/O: Hangaraki Village,

Tq: And Dist: Dharwad

3

8.

Shivappa @ Shivanand

S/O. Kallappa Jitti @ Chitti

Age: About 41 Years,

Occ: Agriculture And Household,

R/O: Hangaraki Village,

Tq: And Dist: Dharwad.

...Respondents

This Writ Petition is filed under Articles 226 & 227

of the Constitution of India praying to issue a writ in the

nature of certiorari quashing the order passed on

I.A.No.V dated 31/01/2020 passed by the I Addl. Senior

Civil Judge and CJM, Dharwad, in Execution Petition

No. 247/2018 which is at Annexure-G and allow the

I.A.No.5 filed by the petitioner.

This Writ Petition coming on for Preliminary

Hearing this day, the Court made the following:

ORDER

This petition is filed by one of the judgment

debtors in Ex.Case No.247 of 2018 on the file of the I

Additional Senior Civil Judge and CJM, Dharwad,

calling in question the Executing court9s order dated

31.01.2020. The Executing Court by the impugned

order

has

allowed

respondent-decree

holder9s

application under Section 151 of the Code of Civil

Procedure, 1908, directing the jurisdictional police to

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provide protection to the Court Commissioner to

execute commissioner warrant in respect of the property

No.5 bearing Block No.270, measuring 4 guntas out of

total extent of 1 acre 34 guntas of land at Hangarki

Village. The Executing court, by the same order, has

rejected the petitioner9s application under Order XXI

Rule 29 read with Section 151 of CPC for stay of further

proceedings in the execution case.

2.

The learned counsel for the petitioner does

not dispute that the plaintiff9s suit in O.S. No.127/2005

for partition is decreed on 31.10.2013 and the final

decree is drawn on 15.12.2017. The petitioner has

belatedly filed the first appeal in R.A.No.163/2019

impugning the preliminary decree dated 31.10.2013,

but the petitioner has not challenged the final decree

dated 15.12.2019. The appeal in R.A. No.163/2019 is

belated and no orders are passed on the application

filed for condonation of delay. The learned counsel, in

response to a specific query from the Court, submits

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that the appellant has not even filed an application for

stay in R.A. No.163/2019.

3.

In the light of these submissions, no

exception can be taken with the executing court9s

reasoning that the judgment and decree in the civil suit

will have to be necessarily executed. As such, the

impugned order does not suffer from any error. The writ

petition is dismissed.

Sd/-

JUDGE

Kms