M P KAVEESHA Vs. VASANTHAMALA DATTATRI

JUDGEMENT

(1.) PETITIONER is the objector in Execution Petition No.98/2002 on the file of II Additional Civil Judge & JMFC, Chikmagalur. Being aggrieved by the order dated 14.01.2015 rejecting the application filed under Section 151 r/w Section 10 of CPC seeking for stay of further proceedings in Execution Petition No.98/2002 till the disposal of O.S. No.118/2012, the petitioner has filed this writ petition.

(2.) THE case of the petitioner is that he has filed O.S.No.118/2012 seeking for declaration declaring that plaintiff is the absolute owner of the suit schedule property and also for permanent injunction restraining the defendant from interfering with the peaceful possession and also for other reliefs. It is contended that the suit schedule property was purchased by the father of the petitioner from one D.K.Jolapur. In the family partition, the suit schedule property came to be allotted to his share, since then he is in possession and enjoyment of the same. The first defendant in the suit, in the guise of executing the decree made in HRC No.6/1992 was attempting to interfere with his possession and enjoyment of the property. In view of that, he filed the suit. He also filed an application under Order 39 Rules 1 and 2 of the CPC in the said suit seeking for temporary injunction. The said application was rejected by the Trial Court on 15 -06 -2013. Being aggrieved by the same, the petitioner preferred an appeal in MFA No.5894/2013 before this Court. The said MFA was dismissed by this Court on 03.09.2014. Being aggrieved by the same, the petitioner filed SLP No.29541/2014 before the Hon'ble Supreme Court. The Hon'ble Supreme Court dismissed the SLP on 17 -11 -2014. The suit filed by the plaintiff in O.S. No.118/2012 is pending. In the Execution No.98/2002, the petitioner filed an application under Section 10 of read with Section 151 of CPC praying for stay of further proceedings in the said case till the disposal of O.S.No.118/2012. The trial Court after considering the matter in detail and taking into consideration the earlier proceedings held that the objector has not made out prima facie grounds to stay the execution case No.98/2002 and dismissed the application filed under Section 10 of CPC for stay of further proceedings in Execution Petition 98/2002. Being aggrieved by the same, these writ petitions are filed.

(3.) SRI . V.V. Gunjal, advocate appearing for the petitioner contended that the order passed by the trial court is contrary to law. He has filed two applications i.e. I.A. No.29 and I.A. No.30. In I.A. No. 29 he prays for not to issue the delivery warrant in Execution case till the disposal of the suit filed by the petitioner. In I.A. No.30, petitioner sought for stay of the further proceedings in Execution case No.98/2002. The Court has passed the order on I.A. No.30 and no order has been passed on I.A No.29. Mr.Gunjal further contended that the decree holder had already taken possession of the property and hence the question of taking possession of the suit schedule property does not arise. The property mentioned in the schedule of HRC No.6/1992 and present schedule property is entirely different. In the guise of taking possession of the suit property mentioned in Execution Petition No.6/1992, the decree holder cannot take possession of the property which was purchased by the father of the petitioner which was subsequently allotted to the share of the petitioner in the family partition. Hence, the order passed by the Trial Court is contrary to law. Further he also contented that in earlier proceedings the petitioner has not urged the fraud played by the Judgment debtor. Subsequent to disposal of RSA as well as MFA it was found that the suit schedule property mentioned in HRC No.6/1992 and the present schedule property are entirely different. The suit filed by the plaintiff in O.S. No.118/2012 is pending consideration. The Executing Court has to stay their hands till the disposal of the suit. The order passed by the trial Court refusing to stay the further proceedings in Execution No.98/2002 is contrary to law. In support of his contention, the learned counsel relied upon cetena of judgments of the Supreme Court , Shewbux Mohata and Others vs - Bengal Breweries Ltd and another, 1961 1 SCR 680: , Yeshwant Sakhalakar and another vs - Hirabat Kamat Mhamai and another, 2004 6 SCC 71 and also judgment , Bhavan Vaja and Others vs - Solanki Hanuji Khodaji, 1972 AIR(SC) 1371 Mansang and contented that the procedure adopted by the trial Court is contrary to Order 21 Rule 97 of CPC. The law laid down by the Supreme Court is not enforced. Hence, he sought to allow the petitions.