- 1 - HC-KAR NC: 2025:KHC-D:13824 RSA No. 100608 of 2024 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 14TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO. 100608 OF 2024 (PAR/POS-) BETWEEN: SRI. SANTOSH ANANT KULKARNI AGE: 41 YEARS, OCC. AGRICULTURE/TRADE, R/O. NERALIKAR GALLI, CHIKODI, TQ. CHIKODI, DIST. BELAGAVI-591201. …APPELLANT (BY SRI. RAMACHANDRA A. MALI, ADVOCATE) AND: 1. SRI. ANNAGOUDA JYOTIGOUDA PATIL SINCE DECEASED BY HIS LEGAL HEIRS, SRI. BABUGOUDA ANNAGOUDA PATIL AGE: 70 YEARS, OCC. AGRICULTURE, 2. SRI. DUNDAGOUDA ANNAGOUDA PATIL AGE: 65 YEARS, OCC. AGRICULTURE, 3. SMT. BAYAVVA W/O. MAHALING LATKAR, AGE: 63 YEARS, OCC. AGRICULTURE, 4. SMT. SONAWWA W/O. BALAPPA KHOT, AGE: 62 YEARS, OCC. AGRICULTURE, 5. SMT. HOSHABAI W/O. KRISHNA KHOT, AGE: 61 YEARS, OCC. AGRICULTURE, 6. SMT. RATNAVVA W/O. GOVIND GOURAJ, AGE: 59 YEARS, OCC. AGRICULTURE, 7. SMT. GANGAWWA W/O. APPASAHEB SHIRAGURE, YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.10.16 10:47:42 +0530 - 2 - HC-KAR NC: 2025:KHC-D:13824 RSA No. 100608 of 2024 AGE: 58 YEARS, OCC. AGRICULTURE, ALL R/O. MANGANUR, TQ. CHIKODI, DIST. BELAGAVI-591201. 8. SMT. SHIVABAI W/O. KALAGOUDA PATIL, AGE: 68 YEARS, OCC. AGRICULTURE, R/O. MANGANUR, TQ. CHIKODI, DIST. BELAGAVI-591201. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO CALL FOR THE RECORDS IN EXECUTION CASE NO. 13/2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, CHIKODI AND SET ASIDE JUDGMENT AND DECREE MADE IN R.A. NO. 10/2021 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE, CHIKODI THEREBY CONFIRMING THE JUDGMENT/ORDER DATED 21/04/2021 MADE IN E.P.NO. 13/2007 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, CHIKODI AS THE SAME BEING ARBITRARY, ILLEGAL AND NOT SUSTAINABLE IN LAW AND CONSEQUENTLY ALLOW THE IA NO. 12 AND 13 FILED IN E.P.NO. 13/2007 ON THE FILE OF LEARNED PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, CHIKODI AS PRAYED IN THE INTEREST OF JUSTICE AND EQUITY AND ETC. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:13824 RSA No. 100608 of 2024 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C M JOSHI) Heard learned counsel appearing for the appellant. The grievance of the appellant herein is that he was an obstructor before the Executing Court in E.P.No.13/2007 (before Prl. Civil Judge and JMFC, Chikodi) and his application was rejected without holding any enquiry. 2. It is further the grievance of the appellant that he filed an appeal against the said Order of the Executing Court in R.A.No.10/2021 and it also came to be dismissed without following the procedure laid down under Order XXI Rule 101 of the Code of Civil Procedure (for short, CPC). 3. The brief factual aspect which is necessary for the purpose of this appeal is that a suit for specific performance filed by the decree holder came to be decreed before the First Appellate Court in R.A.No.40/1997, by overturning the dismissal of the suit by the trial Court. The said decree for specific performance was questioned before this Court in RSA No.2599/2005. This Court dismissed the second appeal. Thus, - 4 - HC-KAR NC: 2025:KHC-D:13824 RSA No. 100608 of 2024 the decree for specific performance had attained the finality. The decree holder filed Execution Petition for specific performance of the agreement of sale in E.P.No.13/2007. During the pendency of the execution petition, the present appellant filed an application under Order XXI Rule 98 to 101 of CPC contending that he has an undivided interest in the suit schedule property which was subject matter of the execution petition. The Executing Court by the impugned order dated 17.02.2021, dismissed the application. Against the said order, the appellant herein approached the First Appellate Court in R.A.No.10/2021, which also came to be dismissed. Impugning the said order dated 18.06.2024; the appellant/obstructor is before this Court in second appeal. 4. The Executing Court by relying upon the judgment of the Madras High Court in the case of C.Murugan V/s Tilagavathy and Another1, dismissed the application without affording an opportunity to the appellant to adduce evidence in the matter. The First Appellate Court in the impugned judgment relied on a judgment of this Court in RFA 1 2015 1 CTC 516 - 5 - HC-KAR NC: 2025:KHC-D:13824 RSA No. 100608 of 2024 No.100321/2019 and came to the conclusion that the appellant had not shown any prima facie material to show that he had any interest in the property so that he could resist the execution petition. It is the said order, which is being impugned in this appeal. 5. The learned counsel appearing for the appellant submits the appellant claimed an independent share in the suit schedule property since he was also a member of the joint family, which consisted of ancestors of the judgment debtor (seller) in the execution petition. The learned counsel appearing for the appellant tries to impress upon this Court as to how he has a right through the genealogy which he contends in the matter. Obviously, the parties to the present appeal; or for that matter to the application which was before the Executing Court; are only a branch of the joint family which the appellant herein now contends; and the purchaser of the property. The Executing Court can limit the matter only to the extent of the so-called right of the appellant herein in suit schedule property and it cannot adjudicate upon the question, whether the plaintiff has a right in it or not. Under - 6 - HC-KAR NC: 2025:KHC-D:13824 RSA No. 100608 of 2024 these circumstances, if the appellant herein has any independent right in the suit schedule property, by virtue of his claim in the joint family property, obviously that would not be obstructed by any means. The rights of the judgment debtor in the suit schedule property emanate from his claim in the joint family property. Therefore, if in any case, the appellant herein could establish that he has any rights in the suit schedule property, the rights of the judgment debtor would be restricted to that extent and he could have alienated the property only to the extent of his share. 6. After lapse of so many years, the appellant has approached the Court and it is not necessary for this Court to venture into the reasons as to why the appellant herein did not agitate his right at an earlier point of time. Therefore, this Court finds that there is no necessity of entering into the question of facts which are involved in the matter and since the appellant has already filed a suit for partition which is pending in O.S.No. 96/2019 before Civil Judge, Chikodi, for which the judgment debtor and the decree holder are also the parties, it is not necessary for this Court to enter into the - 7 - HC-KAR NC: 2025:KHC-D:13824 RSA No. 100608 of 2024 merits of the case. This Court would only clarify that the sale that could happen pursuant to the decree for specific performance in the execution petition would be subject to the final outcome of the partition suit. With these observations, the appeal is disposed off. SD/- (C M JOSHI) JUDGE RKM CT:PA LIST NO.: 1 SL NO.: 38