Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 1153 (KAR)

Laxmawwa v. Ittappa

2013-09-25

A.N.VENUGOPALA GOWDA

body2013
ORDER A.N. Venugopal Gowda, J. 1. Challenge in this writ petition is to an order passed by the Civil Judge (Jr.Dn.), Bilagi, closing Execution Case No. 28/2006, by construing a communication bearing No. ADMN-3207/22/2009 dated 06.07.2009 of the District Court, as if the same was a direction by the High Court. 2. Factual background needs to be noted in brief. O.S. No. 229/2001 filed by Yenkappa, the predecessor of petitioners, against Ittappa, the predecessor of respondents, was decreed on 05.02.2004. A decree for specific performance of the contract was passed. To execute the said decree, petitioners filed E.P. No. 28/2006. An application filed under Order 21 Rule 34 r/w S. 151 of CPC was allowed on 31.07.2008 and a Court Commissioner was appointed to execute a registered sale deed on behalf of the Court. Before receipt of the report in the matter of execution of commission warrant, the execution case was closed on 21.07.2009. The said order passed being cryptic is extracted below: "Case advanced, as per directions of the Hon'ble District Court, Bagalkot, under Ltr. No. ADMN.3207/22/2009 dated 06-07-2009. Heard on both sides. E.P. is closed for time being. Office is ordered to return the original documents in favour D.Hr. Counsel. D.Hr. is at liberty to file fresh E.P. if it is within limitation. Sd/- Civil Judge (Jr.Dn.), Bilagi." 3. Sri. Santhosh B. Mane, learned advocate for the petitioners vehemently contended that the execution Court having appointed a Court Commissioner to execute a registered sale deed on its behalf and the petitioners having taken the required steps, it was not open to the Court to have closed the execution case, before the receipt of the report of the Court Commissioner. He submitted that the Execution Court has failed to exercise jurisdiction vested in it and has made the petitioners to suffer for no fault of them. He submitted that the impugned order being ill-founded is unsustainable. 4. Sri. Suresh P. Hudedagaddi, learned advocate for the respondents, on the other hand submitted that there was no need for the petitioners to have filed this writ petition, since, the Court below has reserved the liberty to file fresh execution case. 5. The contents of the communication dated 06.07.2009, by referring to which, the impugned order was passed being material, the same is extracted below:-- "No. admn. 3204/10/2009 District and Sessions Court, Bagalkot, Dtd: 06.07.2009 Ph.(08354) 224227. To, 1. 5. The contents of the communication dated 06.07.2009, by referring to which, the impugned order was passed being material, the same is extracted below:-- "No. admn. 3204/10/2009 District and Sessions Court, Bagalkot, Dtd: 06.07.2009 Ph.(08354) 224227. To, 1. The Presiding Officer, PTC No. I/II Bagalkot/Jamkhandi. 2. The Prl. /I/II Addl. Civil Judge (Sr.Dn.) Bagalkot/Jamkhandi/Bilagi/Badami. 3. The Civil Judge (Sr.Dn.) sitting itinerary at Mudhol/Hungund. 4. The Prl./Addl. Civil Judge (Jr.Dn.) Bagalkot/Jamkhandi/Mudhol/Hungund. 5. The Civil Judge (Jr.Dn.) Badami/Bilagi/Banhatti. Sir, Sub: Disposal of Motor Vehicle Compensation cases, Land Acquisition cases, Execution cases and Original Suits involving money matters pending on file of your Court as on 01.07.2009, by the end of July 2009. ---- With reference to the above, I write to inform you that, in the Work Review meeting of Judicial Officers of Bagalkot District held on 04.7.2009 at Jamkhandi, Hon'ble the Chief Justice, High Court of Karnataka, Bangalore has directed to dispose of all the Motor Vehicle Compensation cases, Land Acquisition cases, Execution cases and Original Suits involving money matters pending on the file of your Court as on 01.07.2009, by the end of July 2009. It is also directed by his Lordship to hold Lok Adalats for speedy disposal of the above said cases. Hence, you are directed to see that, the Motor Vehicle Compensation cases, Land Acquisition cases, Execution cases and Original Suits involving money matters pending on your file as on 01.07.2009 be disposed of by the end of July 2009. A special report containing. a) The number of these cases pending as on 01.07.2009, b) No. of cases disposed of from 01.07.2009 to 31.07.2009 by Court. c) No. of cases disposed of from 01.07.2007 to 31.07.2009 in the Lok Adalat if any, held, d) No. of cases pending as on 01.03.2009 and e) The reasons for non-disposal before 31.07.2009 be furnished to reach this Court on or before 03.08.2009 so as to submit the same to Hon'ble the Chief Justice for kind information. Yours faithfully, Sd/- (H.B. PRABHAKARA SHASTRY) District and Sessions Judge, Bagalkot." A reading of the communication makes it clear that the Presiding Officers of the Courts in Bagalkot District were informed of the outcome of Review meeting of Judicial Officers of the District held on 04.07.2009 and the need to decide certain categories of the cases, by also holding Lok Adalats for speedy disposal of the cases. 6. 6. The Court below has construed the said communication, as a direction to advance hearing date and close the case. It is evident that the Court below has failed to exercise the jurisdiction vested in it and has committed a wholly illegal act in closing execution case which was at an advanced stage and thereby giving scope for multiplicity of proceedings. If, fresh execution petition can not be filed, due to the bar of limitation, the decree holder would be deprived of the fruits of the decree, which was sought to be executed. The impugned order has been passed without any kind of application of mind. Learned Judge has not even correctly read the said communication of the District Court and his approach shows lack of judicial approach. 7. Keeping in view the facts and circumstances of the case, noticed supra, the legal doctrine actus curiae neminem gravabit i.e., act of Court shall not prejudice a person is applicable. The said legal maxim has been found upon justice and good sense, to serve as a safeguard and certain guide for the administration of Justice. 8. In the instant case, the petitioners have been made to suffer for no fault of them, only on account of a mechanical and irrational act by the Judge of the Execution Court. In the result, writ petition is allowed and the impugned order is quashed. E.P. No. 28/2006 is restored for proceeding further from the stage at which the case stood posted prior to 21.07.2009. Both the parties are directed to appear before the Execution Court on 16.11.2013 and receive further orders. The Court below is directed to complete the proceedings of the case expeditiously and before 26.04.2014. A copy of this order may be placed before the Administrative Judge concerned for appropriate action.