- 1 - NC: 2025:KHC:1827 WP No. 39268 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 39268 OF 2019 (GM-CPC) BETWEEN: SMT. CHANNABASAMMA W/O BETTAIAH, AGED 78 YEARS, R/O THORETHOTA, KABBINA SETHUVE PALYA, KASABA HOBLI, GUBBI TALUK, TUMAKURU DISTRICT-572 216 …PETITIONER (BY SRI.N.S.HIREMATH, ADVOCATE FOR SRI N.B.CHANDRACHOOD, ADVOCATE) AND: 1. SRI M.C.RUDRESH S/O CHANDRACHAR, AGED 35 YEARS, 2. KALAVATHI D/O CHANDRACHAR, AGED 28 YEARS, BOTH ARE R/O MELUKOTE, TUMAKURU TOWN, TUMAKURU DISTRICT-571 431 …RESPONDENTS (BY SRI.I.GOPALAKRISHNA, ADVOCATE) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 07.08.2019 PASED IN FDP.NO.14/2016 REGARDING MAINTAINABILITY OF THE PROCEEDINGS ON THE FILE OF ADDL. CIVIL JUDGE & JMFC, GUBBI, VIDE ANNEXURE-M. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:1827 WP No. 39268 of 2019 CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the order passed in FDP.No.14/2016 dated 07.08.2019 by the Addl. Civil Judge and JMFC at Gubbi, Tumkur, the plaintiffs are before this Court. 2. It is the case of the JDR that the respondents herein have filed a suit O.S. No.294/1999 for redemption of mortgage dated 05.06.1978 and that suit came to be decreed by judgment and decree dated 08.03.2010. Aggrieved thereby, the defendant had preferred RA.No.19/2010 which came to be dismissed by judgment and decree dated 08.10.2015. The same was carried in appeal in RSA.No.29/2016, which was also dismissed on 04.09.2017, confirming the judgment and decree passed by the Trial Court. Thereafter, the DHR had filed the Execution petition. In that an I.A. is filed questioning the maintainability of the execution proceedings. It is the case of the JDR that the decree is not drawn as per the Appendix Form-7A, B and C of Order 38 Rule 7 of CPC and that application came to be dismissed by the Executing Court. - 3 - NC: 2025:KHC:1827 WP No. 39268 of 2019 3. The Executing Court, while dismissing the said application on the maintainability had observed that undisputedly the suit filed by the petitioners in O.S.No.294/1999 for redemption of mortgage deed is decreed as per judgment and decree dated 08.02.2010 against that a regular appeal and further, regular second appeal were filed. Finally came to be dismissed by judgment and decree dated 04.09.2017. The Trial Court observed that there is no document to show that the respondent has challenged the order of the High Court. Therefore, the judgment and decree passed by the Trial Court in O.S.No.294/1999 dated 08.03.2010 has become final. As per Rule 7 Order 34 of CPC, the final decree has to be drawn on the preliminary decree of redemption of mortgage deed. The contention of the respondent that there is defect in preliminary decree, cannot be considered, the preliminary decree passed by the Trial Court is confirmed by the Appellate Court and further, the Trial Court had come to the conclusion that as per Rule 7 and 8 of Order 34 of CPC the present proceedings seeking drawing of final decree is maintainable and accordingly, directed the matter to be listed by 22.08.2019. - 4 - NC: 2025:KHC:1827 WP No. 39268 of 2019 4. Learned counsel appearing for the petitioner/JDR submits that what is executable is a decree and the preliminary decree that is drawn is a defective decree and it is not in consonance with Order 34 Rule 7 and the Appendix 7A to C. When the preliminary decree is not drawn as per the provision, the decree is a defective decree which is not executable. He had relied on the judgment of the Hon’ble Apex Court in the case of Sudesh Vithal Hanamsheth and another Vs. Sadanand Shivrao Koppal and Others1 wherein the Hon’ble Apex Court observed that: “It being an obligation of the Court to prepare the preliminary decree in accordance with R. 7, for the lapse of the Court, appellant cannot be penalised on the ground that the application for final decree was barred by limitation.” Relying on this judgment, the learned counsel appearing for the petitioner submits that as the preliminary decree was not drawn as per the procedure contemplated and the same is not executable. It is submitted that the Trial Court ought to have considered the objections that are raised by the JDR and 1 (1998) 8 SCC 591 - 5 - NC: 2025:KHC:1827 WP No. 39268 of 2019 without considering any of the facts as well as law, the Trial Court had dismissed the application. 5. Learned counsel appearing for the respondents/ DHRs submits that the Order 34 Rule 7 of CPC do not contemplate drawing of a decree in a particular manner. He submits that Order 38 Rule 5 of CPC only stipulates what should a decree contain. He has drawn the attention of the Trial Court to the judgment and decree and submits that the decree contains all the ingredients that are necessary to be there in a decree. He submits that a suit that is filed in the year 1999 and the RSA was dismissed on 04.09.2017. Even after lapse of 8 years still the DHR is not able to enjoy the fruits of the decree. It is further submitted that the JDR, only with an intention to protract the proceedings is coming up with one application or the other. He submits that the writ petition needs to be dismissed with costs. 6. Having heard the learned counsels on either side, perused the material on record. The petitioner herein is the JDR. There are two suits. One is for redemption of the mortgage by the respondents herein and the suit is for specific - 6 - NC: 2025:KHC:1827 WP No. 39268 of 2019 performance by the petitioner herein. The suit filed by the petitioner herein seeking specific performance is dismissed. The suit filed by the respondents herein seeking redemption of the mortgage deed was allowed. Thereafter, against the two judgments and decrees that are passed in the two suits, two regular appeals were filed. Two appeals came to be dismissed. Then, only one RSA is filed arising out of a suit for the redemption of mortgage. As far as the specific performance suit is concerned no second appeal is filed. When the appeal that is filed is dismissed, the petitioner has kept quiet and he had not carried the matter further. It is never the case of the JDR that the decree is defective. He himself had filed the appeals against the defective decree. Looking at the case of the petitioner herein it is stated before this Court that there was no occasion for him to say that the preliminary decree is defective as that occasion has come during the final decree proceedings, but not before. This case is a classic case how the litigant is abusing the process, the procedure and remedies that are available to the litigant. The mortgage deed is of the year 1978 and the suit was decreed on 08.03.2010. Even till 2025 also the proceedings are not concluded. This Court had perused the - 7 - NC: 2025:KHC:1827 WP No. 39268 of 2019 Order 34 Rule 7 of CPC. What all Order 34 Rule 7 of CPC specifies is what the decree should contain. A perusal of the decree shows that the Trial Court has drawn the decree in accordance with Order 34 Rule 7 of CPC. A person who was questioning the preliminary decree by way of a regular appeal and regular second appeal now, in the final decree proceedings cannot turn around and say that the decree that is drawn which is questioned by him is not in consonance with the provision. It is nothing but the delaying tactics of the JDR and these kinds of technicalities cannot come in the way of the Court in executing the decree where the preliminary decree has become final. Considering the manner in which the proceedings are dragged on by the petitioner/DHR this is a fit case to impose exemplary cost. Accordingly, this Court is passing the following: ORDER i. Accordingly, the writ petition is dismissed with costs of Rs.10,000/-. ii. All I.As., in this writ petition, shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE BN/List No.: 1 Sl No.: 3