TOTAPPA RACHAPPA INGALAHALLI Vs. GANGADHARAYYA NEELAKANTHAYYA SIRAHATTIMATH

JUDGEMENT

(1.) PETITIONER in C. R. P. No. 4832 of 2001, who is decree-holder in execution Case No. 45 of 1999 before the Court of Principle Civil Judge (Junior Division) at Gadag, has challenged the order dated 29-10-2001 by which the execution has been held as not maintainable to the extent of half of the suit property of O. S. No. 81 of 1971. The petitioners in C. R. P. No. 541 of 2002, who are judgment-debtors 5 and 6 in the said execution, have challenged that part of the order, by which execution is held maintainable to the extent of remaining half of the suit property of O. S. No. 81 of 1971. Since both petitions arise out of same order, they are taken together for consideration.

(2.) FOR the sake of convenience, the parties are referred to as shown in the impugned order i. e. , as decree-holder judgment-debtors 5 and 6.

(3.) BRIEF facts, giving rise to these petitions, are: There was a sale agreement on 26-5-1971 between the decree-holder and one Smt. Kotravva in respect of land Sy. No. 127/1 measuring 5 acres situated at gadag. Based on said agreement, O. S. No. 81 of 1971 was filed by decree-holder in the Court of Civil Judge at Gadag on 11-10-1971. After contest, said suit for specific performance of contract was dismissed, but decreed for the alternative relief claimed for refund of the amount paid by the decree-holder. Against that, R. A. No. 36 of 1973 was filed by the decree-holder and that was allowed on 9-4-1975 by granting a decree for specific performance. Challenging the same, Smt. Kotravva filed R. S. A. No. 604 of 1975 before this Court. During the pendency of that appeal, she died and her L. Rs namely, Gangadharayya, Devavva, Basavannevva and Ningavva were brought on record and, ultimately, it was dismissed by this Court on 15-2-1982. So, on 13-12-1982, the decree-holder filed e. P. No. 53 of 1982 for the execution of the decree passed in his favour for specific performance. Thereafter, Gangadharayya filed a suit in O. S. No. 135 of 1983 for declaration in respect of decree in O. S. No. 81 of 1971 and for injunction on 14-12-1983 and in that, further proceedings in E. P. No. 53 of 1982 were stayed by order dated 2-1-1984. Said suit came to be decreed in part on 21-1-1986 to the extent of half of the suit land. So, E. P. No. 53 of 1982 was closed on 20-2-1986 for the present. Challenging the judgment and decree in O. S. No. 135 of 1983, R. F. A. No. 284 of 1986 was filed before this Court on 3-3-1986 and that came to be transferred to the court of II Additional District Judge at Dharwad and renumbered as r. A. No. 41 of 1991. However, under registered sale deed dated 4-8-1993, Gangadharayya sold entire land to one Shivayya Hiremath who, in turn, sold it in favour of 5th and 6th judgment-debtors, by separate sale deeds dated 2-8-1994. Thereafter, on 11-9-1997 R. A. No. 41 of 1991 was allowed and judgment and decree in O. S. No. 135 of 1983 were set aside. So, on 1-4-1998, E. P. No. 45 of 1999 was filed for executing the decree in O. S. No. 81 of 1971 as modified in R. A. No. 36 of 1973 against the L. Rs of deceased Kotravva brought on record already besides subsequent purchasers of suit land i. e. , judgment-debtors 5 and 6. In that, maintainability of the execution was challenged by the 5th and 6th judgment-debtors and impugned order came to be passed by the executing Court, holding it as maintainable for half of the land and not maintainable for the remaining half of the land Sy. No. 147/1. Thus, decree-holder, judgment-debtors 5 and 6 are before this Court, as noted already.