- 1 - NC: 2025:KHC-D:3916 WP No. 101319 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO.101319 OF 2025 (GM-CPC) BETWEEN: SRI. SANJEEV S/O. SHANKARAPPA DODDAMANI, AGE. 42 YEARS, OCC. RETD. ARMY OFFICER, R/O. AREKURHATTI VILLAGE, TQ. NAVALAGUND, DIST. DHARWAD. …PETITIONER (BY SRI. IRANAGOUDA K KABBUR, ADVOCATE) AND: GYANAPPA DALAWAYI AGE. 47 YEARS, OCC. ARMY OFFICER, R/O. 3, TAMIL NADU BATTALION, NCC, TURUVALLUVAN NAGAR, PACHIYAP MENS HOSTEL, KANCHIPURAM-631501. …RESPONDENT (NOTICE TO RESPONDENT IS DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, NAVALAGUND IN EP NO.17/2023 DATED 09.01.2025 ON IA NO.III FILED U/ORD.21 RULE 29 OF CPC-VIDE ANNEXURE-H AND TO ISSUE ANY OTHER WRIT, ORDER OR DIRECTION AS THIS HON'BLE COURT DEEMS FIT TO GRANT IN THE FACTS AND CIRCUMSTANCES OF THIS CASE IN THE INTEREST OF JUSTICE AND EQUITY. THIS PETITION IS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: R Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:3916 WP No. 101319 of 2025 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ) 1. Notice to respondent is dispensed with in view of the proposed order to be passed. The petitioner is before this Court seeking for the following reliefs: “A. Issue a writ in the nature of certiorari quashing the impugned order passed by the Senior Civil Judge and JMFC, Navalagund in EP No.17/2023 dated 09.01.2025 on IA No.III filed under order 21 Rule 29 of CPC vide Annexure-H. B. Issue any other writ, order or direction as this Hon'ble Court deems fit to grant in the facts and circumstances of this case in the interest of justice and equity.” 2. The petitioner was the plaintiff in O.S.No.570 of 2022 filed for recovery of certain amount. Notice having been served on the respondent, who was the defendant therein. Taking note of the absence of the defendant that he was placed ex-parte, the matter proceeded with and an ex-parte decree came to be passed. Subsequent thereto, the petitioner filed execution proceedings in EP No.17 of 2023 wherein, an attachment order was sought for of the salary of the - 3 - NC: 2025:KHC-D:3916 WP No. 101319 of 2025 respondent to be issued in the name of the drawing officer. 3. It is claiming that only then the judgment debtor came to know about the decree, the judgment debtor filed an application under Order XXI Rule 29 of the Code of Civil Procedure (hereinafter referred to as ‘CPC’ for brevity) for staying of the proceedings by contending the judgment debtor had filed a proceeding in Miscellaneous No.1 of 2024 for recall of the ex-parte judgment and decree. The Executing Court allowed the said application vide the impugned order dated 09.01.2025. It is challenging the same, the petitioner is before this Court. 4. When the matter was taken up on an earlier occasion, learned counsel appearing for the petitioner was called upon to enquire and make his submission as to whether service of notice in the suit had been effected in terms of Rule 28 of Order V of the CPC. Today a memo with the order-sheet has been filed as regards - 4 - NC: 2025:KHC-D:3916 WP No. 101319 of 2025 the service of notice in the execution proceedings through the Commanding Officer. 5. Insofar as the service of notice in the suit, the order sheet in the suit has been produced, a perusal of the order sheet, would indicate that summons have been issued on 17.12.2022 by RPAD. On 11.01.2023 awaiting the RPAD, the matter was adjourned to 23.01.2023. On 23.01.2023, the trial Court held that the defendant is deemed to be duly served since the endorsement received was that the registered post was refused, he was called out since the defendant was absent was placed ex-parte. 6. The defendant admittedly is serving in the army in the Tamil Nadu battalion at Kanchipuram. Rule 28 of Order V of CPC, reads as under; “28. Service on soldiers, sailors or airmen.—Where the defendant is a soldier, [sailor] [or airman], the Court shall send the summons for service to his commanding officer together with a copy to be retained by the defendants.” 7. A reading of the aforesaid Rule 28 of Order V of CPC, would indicate that service on soldiers, sailors or - 5 - NC: 2025:KHC-D:3916 WP No. 101319 of 2025 airman, would have to be effected by sending summons for service to the Commanding Officer together with a copy to be retained by the defendant therein, i.e. the person to be served. 8. The notice was directed to be issued through RPAD. A perusal of the order sheet, does not indicate that the notice has been issued to the Commanding Officer in terms of Rule 28 of Order V of CPC. 9. In the order sheet, there is an endorsement made that the RPAD has been refused and it is in that background that the Court held the defendant to be deemed to have been served and placed exparte. It not being disputed that the defendant is a soldier working in the army, in terms of Rule 28 of Order V of CPC, notice was required to be served through the Commanding Officer, the question of refusal, who has refused, would have to be considered in the Civil Miscellaneous Petition now filed by the defendant- respondent. - 6 - NC: 2025:KHC-D:3916 WP No. 101319 of 2025 10. In that view of the matter, it not being clear as to whether the service has been affected properly or not, the application filed under Order XXI Rule 29 of CPC staying of the execution proceedings since Civil Miscellaneous No.1 of 2024, had been filed to set- aside the ex-parte order, cannot be found fault with. 11. The submission of the learned counsel for the petitioner that in terms of Rule 29 of Order XXI of CPC, there are to be two different proceedings inasmuch as two different suits, cannot be accepted. In as much as if the execution proceedings were to continue, when the Civil Miscellaneous is pending and if the Civil Miscellaneous was allowed, the decree would naturally be set-aside, which would result in the defendant being placed in a position, which cannot be reversed. 12. As such, I do not find any infirmity in the order passed by trial Court, the petition stands dismissed at the stage of admission itself. Sd/- (SURAJ GOVINDARAJ) JUDGE AM/List No.: 1 Sl No.: 16