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2015 DIGILAW 340 (KAR)

C. Hanumegowda v. Lakshmama

2015-03-27

S.SUJATHA

body2015
Judgment : 1. This writ petition is filed by the judgment debtor/appellant challenging the correctness of the order passed by the Senior Civil Judge & JMFC at Doddaballapura in R.A.(Ex) No.45/12 dated 17.11.2012 wherein I.A.No.2 filed by the petitioner under Order 41 Rule 5 read with Section 151 CPC was rejected. 2. The brief facts of the case are: The petitioner herein had entered into an agreement to sell the standing eucalyptus trees on the land bearing Sy.No.122/2 measuring 1 acre 36 guntas situated at Thimmasandra Village, Kasaba Hobli, Doddaballapur Taluk in favour of respondent no.2 for a sum of Rs.15,000/-. Pursuant to the said agreement, there arose a dispute between the petitioner and the 2nd respondent as regards cutting and removing of the standing trees. The respondent no.2 on the basis of the agreement dated 8.12.1987 filed suit in O.S.No.162/99 for an order of perpetual injunction restraining the petitioner herein from obstructing the cutting and removing of the standing eucalyptus trees on the subject property. The said suit came to be ended in a compromise and decreed on 14.2.2001. However, the dispute between the petitioner and the 2nd respondent was not resolved. Accordingly, respondent no.2 filed an execution petition before the trial Court in Ex.No.6/2003 for the enforcement of the decree dated 14.2.2001. The Executing Court after giving directions to the police to give adequate police protection to the respondent no.2 so as to cut and remove the standing eucalyptus trees on the subject-property, closed the matter on 23.10.2009. Respondent no.1 claiming herself as the objector filed an application in Ex.No.6/2003 under Order XXI Rule 97 CPC on 29.10.2009 with a request to consider her claim in respect of the subject-property. The executing court after considering the said application by order dated 25.02.2010 held that the judgment and decree passed in O.S.No.162/99 dated 14.2.2001 does not bind the interest of the objector - respondent no.1 against which an appeal was filed by the petitioner before the Sr. Civil Judge, Doddaballapura in Ex.R.A.No.45/12 on 17.11.2012. In the said Regular Appeal, petitioner had filed 2 interlocutory applications i.e., one for condonation of delay of 965 days in filing the appeal and another for stay of the order dated 25.2.2010 passed by the Executing Court in Ex.No.6/2003. Civil Judge, Doddaballapura in Ex.R.A.No.45/12 on 17.11.2012. In the said Regular Appeal, petitioner had filed 2 interlocutory applications i.e., one for condonation of delay of 965 days in filing the appeal and another for stay of the order dated 25.2.2010 passed by the Executing Court in Ex.No.6/2003. The appellate court dismissed the application (I.A.NO.2) filed by the petitioner under Order 41 Rule 2 of CPC in R.A.No.45/12 on 8.3.2013 which is impugned in this writ petition. 3. The learned counsel Sri Seshagiri Rao appearing for the petitioner argued that the Executing Court had no jurisdiction to entertain the application under Order XXI Rule 97 CPC and the appellate judge also erred in not exercising the jurisdiction under Order 41 Rule 5 CPC while rejecting the I.A. for stay of the order passed by the Executing Court under Order XXI Rule 97 CPC. The main contention of the learned counsel is that the Executing Court was not empowered to entertain an application under Order XXI Rule 97 CPC so as to adjudicate as regards the possession, in a proceeding under Order XXI Rule 32 CPC. It is contended that the power under Order XXI Rule 97 can be invoked in a proceeding either under Order XXI Rule 35 CPC or under Order XXI Rule 95 CPC and not under Order XXI Rule 32 CPC. The appellate court ignoring these provisions, has failed to exercise the jurisdiction vested in it by rejecting the application for stay and accordingly prayed to exercise the superintending powers of this Court. 4. This Court vide order dated 5.6.2013 has held that 'service of notice on respondent no.1-caveator is held sufficient' and notice to 2nd respondent is dispensed with at the risk of the petitioner. None appeared for the respondent no.1. 5. After hearing the learned counsel appearing for the petitioner, the only point that arises for consideration of this Court is, "Whether the order passed by the executing court in Ex.No.6/2003 dated 25.2.2010 requires to be stayed pending disposal of R.A.(Ex)No.45/12 before the appellate court.?" 6. The Executing Court after considering the case of both the parties with the documents i.e., RTC pertaining to the disputed land and the two judgments passed by the Court of Principal Civil Judge (JR. The Executing Court after considering the case of both the parties with the documents i.e., RTC pertaining to the disputed land and the two judgments passed by the Court of Principal Civil Judge (JR. Dvn.) and JMFC, Doddaballapura in O.S.103/2005 and O.S.No.161/2005 has held that obstructor - respondent no.1 is in possession of the suit schedule property and the petitioner has failed to establish his case that he has been in possession, allowed the petition filed by the obstructor - R.1 under Order XXI Rule 97 CPC read with Section 151 CPC. 7. The said order was challenged by the petitioner before the appellate Court in Ex.R.A.No.45/2012. Admittedly, the said appeal is filed before the appellate court with a delay of 965 days. At the time of filing the appeal before the appellate court, the petitioner has filed an application under Section 5 of the Limitation Act to condone the delay of 965 days in filing the appeal and to consider the I.A.No.2 filed under Order 41 Rule 5 read with Section 151 CPC to stay the order passed by the Executing Court dated 25.2.2010. No order has been passed by the appellate court on the application filed under Section 5 of the Limitation Act as the same is held to be considered at the time of final disposal of the appeal. However, considering the arguments advanced by the learned counsel appearing for the applicant/appellant, I.A.2 filed Under 41 Rule 5 read with Section 151 CPC is rejected. It is now brought to the notice of this Court that the said case is at the stage of arguments before the appellate court. The order of the executing court dated 25.2.2010 was challenged by the appellant before the appellate court with an inordinate delay of 965 days and the application filed under Section 5 of the Limitation Act is still pending. No order of stay is passed in these writ petitions from 19.3.2013. Now the matter is set for final arguments of the case before the appellate court. At this juncture, it would not be appropriate for this Court to stay the order dated 25.2.2010 passed by the Executing Court. The appellate court has categorically held that the petitioner has not made out prima facie grounds to consider the I.A.No.2 filed under Order 41 Rule 5 read with Section 151 CPC. At this juncture, it would not be appropriate for this Court to stay the order dated 25.2.2010 passed by the Executing Court. The appellate court has categorically held that the petitioner has not made out prima facie grounds to consider the I.A.No.2 filed under Order 41 Rule 5 read with Section 151 CPC. The learned counsel appearing for the petitioner submitted that a status-quo order was warranted in the circumstances of the case but, the appellate Court without applying its mind has outrightly rejected the application and requested this Court to pass an equitable order pending disposal of the appeal before the appellate court. As already mentioned above, the matter is at the stage of arguments before the appellate court and any observations made herein on the merits of the case would adversely affect either of the parties in the appeal proceedings more particularly, after noticing that there is no interim order of stay from 25.2.2010. Hence, in my view, circumstances does not warrant any interference with the appellate order at this length of time. 8. For the foregoing reasons, the writ petition stands dismissed. However, in the circumstances of the case, the appellate court is directed to dispose of the matter as expeditiously as possible in accordance with law without being influenced by the order passed herein. The parties shall co-operate for the early disposal of the appeal.