Pradeep vs. Jagadishwari

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s).6565/2020

(Arising out of impugned final judgment and order dated 18-11-2019 in WP No. 83144/2013 passed by the High Court of Karnataka Circuit Bench at Dharwad)

PRADEEP & ORS. Petitioner(s)

VERSUS

JAGADISHWRI & ORS. Respondent(s)

(WITH I.R. and IA No.47353/2020-EXEMPTION FROM FILING O.T.)

Date : 17-12-2020 This petition was called on for hearing today.

• CORAM :
• HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MS. JUSTICE INDU MALHOTRA HON'BLE MS. JUSTICE INDIRA BANERJEE
• For Petitioner(s) Mr. Devadatt Kamat, Sr. Adv. Mr. Rajesh Inamdar, Adv. Mr. Ramachandra Mali, Adv. Mr. Amit Pai, AOR Mr. Rahat Bansal, Adv.
• For Respondent(s) Mr. Chinmayee Deshpande, Adv. Mr. Anirudh Sanganeria, AOR

UPON hearing the counsel the Court made the following O R D E R

1 We have heard Mr Devadatt Kamat, learned Senior Counsel appearing on behalf of the petitioners, with Mr Amit Pai, learned counsel, and Mr Chinmayee Deshpande, learned counsel appearing on behalf of the caveators- first to sixth respondents.

2 Briefly stated, the facts insofar as they have been placed before the Court, at the present stage, are thus:

• (i) On 31 April 1940, OS No 159 of 1940 was filed for partition by the original plaintiff claiming a 1/4th share. A preliminary decree was passed on 27 August 1942. The petitioners claimed to have purchased an area of 2 acres and 39 guntas comprising RS No 329 situated at Solapur from defendant No 3A, the legal heir of original defendant No 3. RS 329 was not originally a part of the Schedule to the suit for partition, but was included by an order dated 21 January 1973. A final decree was passed on 25 August 1962;
• (ii) In 1979, EP 963 of 1979 was filed by the plaintiff for execution. However, the plaintiff indicated in the Schedule to his application that since a sale had taken place of the 1/4th share in RS 329, the value may be recovered from the sale of the property at Belgaum, insofar as the defendants were concerned;
• (iii) On 17 October 2006, the Executing Court transferred the execution proceedings to the court at Solapur in respect of RS 329, but it appears that, thereafter, an order was passed by the transferee court returning the papers for some compliance;
• (iv) The petitioners claimed to have settled the dispute with the plaintiff on 29 September 2011 by the payment of Rs 10.51 lakhs and the decree holder filed a memo seeking the deletion of the names of judgment debtors Nos 12 to 15 – the petitioners herein from the execution proceedings;
• (v) The application seeking the compromise was allowed by an order dated 29 September 2011;
• (vi) On 22 October 2011, the sons of the decree holder filed an application to get impleaded in the execution proceedings on the ground that their

father had settled the matter with the petitioners without consulting them. This application was dismissed on 4 March 2013; and

• (vii) It appears that this order attained finality and was not questioned thereafter. However, the caveators filed a writ petition before the High Court of Karnataka on 25 September 2013, seeking to challenge the legality of the order dated 4 March 2013 which has been allowed by the impugned judgment of the Single Judge.

• 3 Mr Devadatt Kamat, learned Senior Counsel appearing on behalf of the petitioners, submits that the caveators had no locus to enter into the proceedings to challenge the order dated 4 March 2013, which was filed in an application of the sons of the original plaintiff seeking to question the compromise. Moreover, he has placed reliance on the averments contained in paragraph 3 of the writ petition which indicates that the caveators were aggrieved by an order dated 15 June 1990 which was sought to be challenged in the writ petition in 2014. It has been submitted that on these facts, the High Court has erred in entertaining the writ petition, particularly after a considerable delay.

• 4 On the other hand, Mr Chinmayee Deshpande, learned counsel appearing on behalf of the caveators, submits that, at this stage, the caveators have a share to the extent of 1/4th in the land at Solapur and, hence, the sale which has been made in favour of the petitioners by the original plaintiff cannot affect their rights.

• 5 The rival submissions, in our view, would require further consideration.

• 6 Hence, issue notice, returnable in twelve weeks.

• 7 The respondents caveators shall file their counter affidavit within a period of eight weeks from today. Rejoinder, if any, be filed within a period of four weeks thereafter.

• 8 Till the next date of listing, there shall be an ad-interim stay of the operation of the impugned judgment and order dated 18 November 2019 in WP No 83144 of 2013.

AR-CUM-PS COURT MASTER

(SANJAY KUMAR-I) (SAROJ KUMARI GAUR)