- 1 - NC: 2025:KHC:2488 WP No. 50529 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 50529 OF 2018 (GM-CPC) BETWEEN: SRI RAJASHEKARAIAH S/O. LATE SRI. REVANNA, R/O. KANNASANDRA VILLAGE, SOLUR HOBLI, MAGADI TALUK, RAMANAGARA DISTSRICT …PETITIONER (BY SRI.C.MUDDURAJ, ADVOCATE) AND: 1. SRI.NANJAPPA S/O. LATE. SRI. REVANNA, AGED ABOUT 68 YEARS R/O. KANNASANDRA VILLAGE, SOLUR HOBLI, MAGADI TALUK, RAMANAGARA DISTSRICT 2. SMT. BYRAJAMMA W/O. SRI. SHIVAKUMAR, R/O. GUDEYARANAHALLI HAND POST, BEHIND COLLEGE, SOLUR HOBLI, MAGADI TALUK, RAMANAGARA DISTSRICT 3. SMT. GANGAMBIKE W/O. SRI. GANGADHARAIAH, R/O. KANCHUGAL BANDE MATA, SOLUR HOBLI, MAGADI TALUK, RAMANAGARA DISTSRICT 4. SMT. HONNAGANGAMMA W/O. SRI. CHIKKAREVAIAH, R/O. PARVATHIANAPALYA VILLAGE, KANNASANDAR DHAKALE Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:2488 WP No. 50529 of 2018 SOLUR HOBLI, MAGADI TALUK, RAMANAGARA DISTSRICT …RESPONDENTS (BY SRI.SUNIL S. RAO, ADVOCATE FOR R4 R1 & R3 SERVED AND UNREPRESENTED V/O/D 28/7/2021, NOTICE TO R2 HELD SUFFICIENT) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 23.11.2018 ON I.A.NO.3 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC, MAGADI IN O.S.NO.304/2015 VIDE ANENXURE-A. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER The present writ petition is filed aggrieved by the orders passed on I.A.No.3 in OS.No.304/2015 dated 10.10.2018 by Senior Civil Judge and JMFC, Magadi, Ramanagara, the plaintiff/petitioner is before this court. 2. The plaintiff has initially sought for the relief of declaration of ownership of suit schedule property and consequential injunction that the judgment and decree passed in OS.No.307/1993 dated 21.03.2007 is not binding on the plaintiff. Thereafter, the petitioner has come up with an application under Order 6 Rule 17 of CPC by seeking - 3 - NC: 2025:KHC:2488 WP No. 50529 of 2018 amendment that the execution proceedings are not binding on the petitioner. 3. The original suit is filed seeking declaration that he is the absolute owner of the suit schedule property and also consequential injunction. Thereafter, by way of this I.A he sought an amendment that the judgment and decree passed in OS.No.307/1993 dated 21.03.2007 is not binding on the plaintiff and also the order passed in Execution Petition No.33/2010 dated 30.10.2015 is not binding on Petitioner. When an I.A is filed under Order 6 Rule 17 of CPC the defendant had raised his objection stating that it is barred by res-judicata and such a prayer cannot be allowed. The trial Court had dismissed the application observing that the petitioner/plaintiff had failed to question the order that is passed in Execution Petition No.33/2010 where the plaintiff is arrayed as JDR 1(b). By way of his amendment, the plaintiff is seeking to declare that the order passed in OS.No.33/2010 and the execution of the sale deed is not binding on him. The execution proceedings are within the knowledge of the plaintiff. If the petitioner is aggrieved by the order passed in OS.No.307/1993 and Execution Petition No.33/2010, he has to - 4 - NC: 2025:KHC:2488 WP No. 50529 of 2018 prefer an appeal against the order. By way of the amendment, the plaintiff is trying to change the nature of the suit. Though the relief claimed in this suit for partition is that the execution case pending in Ex.P.No 33/2010 is not binding on the plaintiff, the plaintiff by way of this amendment is challenging the Order passed in Ex.P.No 33/2010 which cannot be permitted as sought for by the plaintiff. Accordingly the trial court had dismissed the I.A No.3. 4. Learned counsel appearing for the petitioner/plaintiff submits that he has filed an application before the trial Court seeking declaration of ownership of suit schedule property and also permanent injunction. The suit schedule property in the suit for declaration is the very same property in a specific performance suit, already a decree is passed in which the plaintiff is not a party. In the Execution Petition in the year 2014 he was made a party and the learned counsel submits that he has appeared before the Court and has submitted that he is not a proper and necessary party. Learned Counsel further submits that unless this I.A. is allowed, it would cause lot of hardship to the plaintiff and the Court has failed to consider all these aspects. - 5 - NC: 2025:KHC:2488 WP No. 50529 of 2018 5. Learned counsel appearing for the defendant submits that when a remedy is available to the petitioner as an objector or under section 47 of the CPC without availing the said relief he has come before this Court. He submits that a decree which was granted in the year 2007 couldn’t be executed even till today. He submits that only with an intention to drag on the proceedings and to see that the defendant do not enjoy the fruits of the decree these kinds of frivolous petition are filed. Learned Counsel for the defendant had relied on the judgment of the Hon’ble Apex Court in case of Smt. Ved Kumari(dead through her legal representative)Dr. Vijay Agarwal Vs. Municipal Corporation of Delhi through its Commissioner1 arising out of SLP(C) Nos.12601-12602/2017 dated 24.08.2023 and he has also relied on another judgment of the Hon’ble Apex Court in case of Pradeep Mehra Vs. Harijivan J. Jethwa (Since deceased through LR) and others2 . Relying on these judgments learned counsel submits that the plaintiff can only file an application either under Section 47 or under Order 21 Rule 97of CPC as an objector but he cannot file an independent suit and when the amendment itself is barred by 1 Neutral Citation 2023INSC764 2 Neutral Citation 2023INSC958 - 6 - NC: 2025:KHC:2488 WP No. 50529 of 2018 res-judicata and also under the law of limitation whereas the document is of the year 1993 and they cannot file a suit for enforcing the same. 6. Having heard the learned counsels on either side, perused the entire material on record. The application is filed under Order 6 Rule 17 of the CPC and by way of amendment he sought for declaration that the judgment and decree in the specific performance suit passed in OS.No.307/1993 dated 21.03.2007 is not binding on him and also the order passed in Execution Petition.No.33/2010 dated 30.10.2015 came to be dismissed by the trial Court observing that the petitioner/plaintiff was a party to the execution proceedings and when he was added as a party he has filed his objections, the court has given a finding that he is not a proper and necessary party to the suit. The same was not questioned by the plaintiff. When an order is passed by a competent court when he has a remedy to question that order passed by the court, he has filed the suit seeking a declaration.While considering this application under order 6 rule 17 of CPC this court has to look into the parameters when an amendment can be ordered. The - 7 - NC: 2025:KHC:2488 WP No. 50529 of 2018 amendment admittedly is much before the trial, whatever is the case of the party he can be allowed to raise all those grounds. 7. It is the case of the defendant that it is barred by res- judicata and also barred by limitation and he has urged several other grounds. All these grounds will be open to the defendant to agitate before the court by way of an appropriate application. The court will decide the same in due course and on the face of it, the relief that is sought by the plaintiff as far as seeking a declaration for the judgment and decree is not binding on him and he can maintain such a relief. When it comes to the second relief when he says that the order passed on the execution petition is not binding to which he is a party and which he has not chosen to question that cannot be included by way of this amendment. His remedy is to question the order by procedure known to law provided that is within the limitation. 8. Considering all the facts and circumstances of the case and the argument that are raised by both the parties this court is passing the following: - 8 - NC: 2025:KHC:2488 WP No. 50529 of 2018 ORDER i. The order passed on I.A No.3 in OS.No.304/2015 dated 10.10.2018 by Senior Civil Judge and JMFC, Magadi is set aside. ii. The application seeking amendment of the pleadings is partly allowed whereby the prayer with regard to the declaration that the judgment and decree passed in OS.No.307/1993 dated 21.03.2007 is not binding on him is Allowed and the other prayer that is sought that the order passed in Execution Petition.No.33/2010 dated 30.10.2015 is not binding on him is dismissed. iii. The defendants are at liberty to file appropriate application in case if the relief that is sought is barred by any law. iv. Accordingly the writ petition is disposed of. v. All I.As., in the writ petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE TS List No.: 1 Sl No.: 33