J M KARISIDDAIAH Vs. J M CHANNESHAIAH

JUDGEMENT

(1.) This petition is filed for setting aside the impugned order dated 01.06.2016 in Execution Petition No.19/2009 passed by Senior Civil Judge and CJM, Shivamogga.

(2.) The facts briefly stated are that petitioner had filed O.S.No.90/1991 against the respondent. The said suit was for partition and separate possession and the same was decreed on 04.8.1997. The respondent had challenged the said judgment and decree in RFA No.705/1997 and the same was dismissed. Thus, the judgment and decree passed in O.S.No.90/1991 has reached the finality. The decree holder-petitioner had filed FDP No.40/1997. Thereafter, the Execution Petition No.19/2009 was filed for execution of the decree passed in O.S.No.90/1991 wherein the respondent had filed the I.A.No.1 to stay the execution proceedings. The said I.A. was rejected. Thereafter, the trial Court without considering the earlier proceedings and the judgment and decree in O.S.No.90/1991 and by relying the judgment passed in O.S.No.217/1986 dismissed the Execution Petition. Being aggrieved by the said order, the petitioner preferred the Civil Revision Petition which was numbered as 249/2011. The said Civil Revision Petition was allowed and the impugned order dated 03.06.2011 passed for dismissal of execution was set aside. The Executing Court once again passed the impugned order dated 01.06.2016 dismissing the Execution Petition on the same grounds.

(3.) Learned counsel for the petitioner would strenuously contend that the Executing Court has no locus standi to go behind the decree. Despite the order passed in Civil Revision Petition No.249/2011, the Executing Court has once again passed the erroneous order for second time dismissing the Execution Petition on the similar grounds that decree holder has committed fraud in obtaining the decree. The reasons assigned for the dismissal of Execution Petition are not justified. In support of the said contention, the learned counsel has relied on the orders passed in Civil Revision Petition No.249/2011.