Case Note & Summary
The appellant, Basavaraj S/o Shamrao Sinigond, as the legal representative of the original decree holder Chandamma, filed a writ appeal against the order of a learned Single Judge dismissing his writ petition. The writ petition challenged the order of the Senior Civil Judge, Sedam, which dismissed the execution petition (Ex. Case 47/2012) for default and refused to restore it. The background is that Chandamma had obtained a decree in OS 70/1992 on 28.02.1992 for declaration of title and permanent injunction over certain agricultural lands and a house property. The judgment debtors' appeal (R.A.3/1997) was dismissed on 20.07.2001. Thereafter, the decree holder filed execution proceedings. The execution petition was dismissed for non-prosecution on 27.06.2018. The decree holder filed a restoration application, which was also dismissed. The Single Judge upheld the executing court's order. In the writ appeal, the appellant argued that the dismissal for default was due to the counsel's absence and that sufficient cause existed for restoration. The respondents opposed, contending that the decree holder was negligent. The Division Bench of the High Court of Karnataka, Kalaburagi Bench, comprising Justice Sreenivas Harish Kumar and Justice Hemant Chandangoudar, allowed the appeal, set aside the order of the Single Judge, and directed restoration of the execution petition to its original number, holding that the decree holder had shown sufficient cause.
Headnote
A) Civil Procedure - Execution of Decree - Dismissal for Default - Restoration - The decree holder's execution petition was dismissed for non-prosecution. The executing court refused to restore it. The High Court held that the decree holder had shown sufficient cause for non-appearance and that the executing court ought to have restored the execution petition. The writ appeal was allowed, setting aside the order of the Single Judge and restoring the execution petition. (Paras 1-10)
Issue of Consideration
Whether the learned Single Judge erred in dismissing the writ petition challenging the order of the executing court which dismissed the execution petition for default and refused to restore it.
Final Decision
The writ appeal is allowed. The order dated 27.06.2018 passed by the learned Single Judge in W.P.No.208202/2017 is set aside. The execution petition (Ex. Case 47/2012) is restored to its original number. The executing court is directed to proceed with the execution in accordance with law.
Law Points
- Execution of decree
- dismissal for default
- restoration of execution petition
- sufficient cause
- Order 21 Rule 106 CPC
- Section 4 read with Section 9(IV-A) of Karnataka High Court Act
Case Details
2019 LawText (KAR) (12) 3
Writ Appeal No.200574/2018 (GM-CPC)
Justice Sreenivas Harish Kumar, Justice Hemant Chandangoudar
Sri Ameet Kumar Deshpande (for appellant), Sri Manvendra Reddy (for respondents)
Basavaraj S/o Shamrao Sinigond (L.R. of Chandamma)
Shivalingappa S/o Gireppa Ramgond, Doddappa S/o Gireppa Ramgond, Sharnappa S/o Shivalingappa Ramgond
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ appeal against dismissal of execution petition for non-prosecution and refusal to restore.
Remedy Sought
The appellant sought setting aside of the order dated 27.06.2018 passed by the learned Single Judge in W.P.No.208202/2017 and restoration of the execution petition.
Filing Reason
The execution petition was dismissed for default and the executing court refused to restore it; the Single Judge upheld that order.
Previous Decisions
The suit OS 70/1992 was decreed on 28.02.1992; appeal R.A.3/1997 was dismissed on 20.07.2001; execution petition Ex. Case 47/2012 was dismissed for default on 27.06.2018; restoration application was dismissed; writ petition W.P.No.208202/2017 was dismissed by Single Judge on 27.06.2018.
Issues
Whether the learned Single Judge erred in dismissing the writ petition challenging the order of the executing court which dismissed the execution petition for default and refused to restore it.
Submissions/Arguments
Appellant argued that the dismissal for default was due to the counsel's absence and that sufficient cause existed for restoration.
Respondents contended that the decree holder was negligent and not entitled to restoration.
Ratio Decidendi
The court held that the decree holder had shown sufficient cause for non-appearance and that the executing court ought to have restored the execution petition. The dismissal for default was not justified.
Judgment Excerpts
This writ appeal is at the instance of decree holder in execution case 47/2012 on the file of Senior Civil Judge, Sedam.
The said suit came to be decreed in her favour on 28.02.1992 and aggrieved by the same, the judgment debtors preferred an appeal, R.A.3/1997 to the court of District Judge, Gulbarga. The said appeal was dismissed on 20.07.2001.
Procedural History
Chandamma filed OS 70/1992 for declaration and injunction, decreed on 28.02.1992. Judgment debtors appealed in R.A.3/1997, dismissed on 20.07.2001. Decree holder filed execution petition Ex. Case 47/2012. Execution petition dismissed for default on 27.06.2018. Restoration application dismissed. Writ petition W.P.No.208202/2017 filed, dismissed by Single Judge on 27.06.2018. Present writ appeal filed under Section 4 read with Section 9(IV-A) of Karnataka High Court Act.
Acts & Sections
- Karnataka High Court Act: Section 4, Section 9(IV-A)
- Code of Civil Procedure, 1908 (CPC): Order 21 Rule 106
