- 1 - NC: 2025:KHC-D:404 WP No. 108475 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT PETITION NO. 108475 OF 2018 (GM-CPC) BETWEEN: 1. SRI. BABU S/O. BHARMA HOSMANI AGED ABOUT: 63 YAERS, OCC: AGRICULTURE, R/O: RAIBAG, TQ: RAIBAG, DIST: BELAGAVI-591317. 2. SRI. AMIT S/O. VASANT KULAGUDE AGED ABOUT: 27 YAERS, OCC: AGRICULTURE, R/O: RAIBAG, TQ: RAIBAG, DIST: BELAGAVI-591317. …PETITIONERS (BY SRI. BHARATHI G. BHAT, ADVOCATE) AND: 1. SRI. SATISH S/O. DHANPAL KUDACHE AGE: 61 YEARS, OCC: AGRICULTURE, R/O: RAIBAG, DIST: BELAGAVI-591317. 2. SMT. SANMATI W/O. VIVEKRAO RANGOLE AGE: 48 YEARS, OCC: AGRICULTURE, R/O: AKKOL VILLAGE, TQ: CHIKKODI, DIST: BELAGAVI-591211. Digitally signed by BHARATHI H M Location: HIGH COURT OF KARNATAKA Date: 2025.01.20 12:40:33 +0530 - 2 - NC: 2025:KHC-D:404 WP No. 108475 of 2018 3. SMT. VANDANA W/O. SHEETAL UPADHYE AGE: 41 YEARS, OCC: HOUSEHOLD, R/O: ARAG VILLAGE, TQ: MIRAJ, DIST: SANGLI, MAHARASHTRA STATE. 4. SMT. SUVARNA W/O. BAHUBALI PATIL AGE: 38 YEARS, OCC: HOUSEHOLD, R/O: NAVALGUND VILLAGE, DIST: DHARWAD-582208. 5. SRI. BAHUBALI S/O. BHUPAL KUDACHE AGE 58 YEARS, OCC: BUSINESS, R/O: RAIBAG, TQ: BELAGAVI-591317, (ALSO ON RECORD AS L.R. OF DECEASED J.DR.NO.3) 6. SRI. BHARATESH S/O. BHUPAL KUDACHE AGE: 40 YEARS, OCC: BUSINESS, R/O: RAIBAG TALUK, DIST: BELAGAVI-591317. (ALSO ON RECORD AS L.R. OF DECEASED J.DR.NO.3) SMT. MADANAVALI W/O. BHUPAL KUDACHE SINCE DECEASED BY HER LRS I.E. JDrs NOS. 1 AND 2 AND J.DRS 4 TO 7 WHO ARE ALREADY ON RECORD. 7. SMT. SUREKHA W/O. MAHAVEER DALAL AGE:60 YEARS, OCC: H.H. WORK, R/O: RAIBAG, TQ: BELAGAVI, - 3 - NC: 2025:KHC-D:404 WP No. 108475 of 2018 (ALSO ON RECORD AS LR OF DECEASED J.DR.NO.3) 8. SMT. SHOBHA W/O. PRADEEP PATIL AGE: 57 YEARS, OCC: H.H. WORK, R/O: PLOT NO.251, SOCIETY NO.5, LAD BUILDING, NEAR BUS STOP, RATNAPPA KUMBAR NAGAR, KOLHAPUR, MAHARASHTRA, (ALSO ON RECORD AS LR OF DECEASED J.DR.NO.3) 9. SMT.VIPULA W/O. ANNASAHEB PATIL AGE:55 YEARS, OCC: H.H. WORK, R/O: YAMAL, TQ: HUKKERI-591309 (ALSO ON RECORD AS LR OF DECEASED J.DR.NO.3) 10. SMT. GEETA W/O. SUBHASH DALAL AGE: 41 YEARS, OCC: H.H. WORK, R/O: C/O. SUBHASH DALAL, P.L.D. BANK MUDHOL, TQ: MUDHOL, DIST: BAGALKOT-587313. (ALSO ON RECORD AS LR OF DECEASED J.DR.NO.3) 11. SRI. VASANT S/O. SHRIMANDHAR KUDACHE AGE:74 YEARS, OCC: BUSINESS, R/O: MODEL COLONY, "HARIKRISHNA APARTMENT", BLOCK NO.7, PUNE NO.2, MAHARASHTRA. - 4 - NC: 2025:KHC-D:404 WP No. 108475 of 2018 12. SMT. LALITA W/O. GAMBHIR @ APPASAHEB KUDACHE, AGE: 62 YEARS, OCC: H.H. WORK, TQ: RAIBAG, DIST: BELAGAVI-591317. 13. SRI. UDAY S/O. GAMBHIR @ APPASAHEB KUDACHE, AGE: 40 YEARS, OCC: BUSINESS, TQ: RAIBAG, DIST: BELAGAVI-591317. 14. SMT. SHRIDEVI W/O. POPAT @ SHANTINATH MULAWADE AGE:33 YEARS, OCC: H.H. WORK, R/O: MANJARI, TQ: CHIKKODI, DIST: BELAGAVI-591211. 15. SRI. SHANTINATH S/O. APPAYYA @ TAMMANNI KUDACHE SINCE DECEASED BY HIS LRS 12(A) AND 12(B) 15(A) SRI. SURAJ S/O. SATISH KUDACHE, AGE: 28 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O: RAIBAG TALUK, DIST: BELAGAVI-591317. 15(B) SRI. NEERAJ S/O. SATISH KUDACHE AGE: ABOUT 26 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O: RAIBAG TALUK, DIST: BELAGAVI-591317. 16 SRI. RAJENDRA S/O. SHRIPAL KUDACHE AGE: 59 YEARS, OCC: BUSINESS, R/O: KURUNDWAD, - 5 - NC: 2025:KHC-D:404 WP No. 108475 of 2018 TQ: SHIROL, DIST: KOLHAPUR, MAHARASHTRA. 17 SRI. SANJAY S/O. SHRIPAL KUDACHE AGE:52 YEARS, OCC: BUSINESS, R/O: RAIBAG TALUK, DIST: BELAGAVI-591317. 18 SRI. PRAKASH S/O. SHRIPAL KUDACHE AGE:56 YEARS, OCC: BUSINESS, R/O: PLOT NO.102, JALADA BUILDING, D.S.K.RANVARA, BHAVADAN, PUNE-21, MAHARASHTRA STATE. 19 SRI. AJIT S/O. SHRIPAL KUDACHE AGE:50 YEARS, OCC: BUSINESS, R/O: RAIBAG TALUK, DIST: BELAGAVI. 20 SMT. SHASHIKALA W/O. NARENDRA BIRAJ AGE:54 YEARS, OCC: H.H. WORK, R/O: RAIBAG TALUK, DIST: BELAGAVI-591317. 21 SRI. DASHRATH MALLAPPA SHETTI AGE: 73 YEARS, OCC: BUSINESS, R/O: RAIBAG TALUK, DIST: BELAGAVI-591317. 22 SMT. SEVANTI W/O. SUDARSHAN MAHAJAN AGE: 75 YEARS, OCC: H.H. WORK, R/O: 6TH LANE, RAJARAMPURI, KOLHAPUR, MAHARASHTRA STATE. 23 SMT. CHALANADEVI W/O. JAYAKUMAR SHETTI AGE: 70 YEARS, OCC: H.H. WORK, - 6 - NC: 2025:KHC-D:404 WP No. 108475 of 2018 R/O: JAYAPRABHA BUILDING, PLOT NO.B.64 E-WARD, RAJENDRA HOUSING SOCIETY, RAJENDRA NAGAR, KOLHAPUR, MAHARASHTRA. 24 SMT. SUMAN W/O. SHEETAL MIRJE AGE:61 YEARS, OCC: HOUSEHOLD WORK, R/O: JAIN GALLI, CHIKKODI, BELAGAVI DISTRICT-591211. 25 KUM. PADMAVATI @ BHARTI D/O. MALLAPPA SHETTI, AGE:55 YEARS, OCC: H.H. WORK, R/O: C/O. D.M. SHETTI PATIL CHOWK, RAIBAG, DIST: BELAGAVI-591317. 26 SRI. MAHAVEER S/O. SATAPPA DALAL AGE:69 YEARS, OCC: BUSINESS, R/O: RAIBAG, DIST: BELAGAVI. 27 SRI. JAYAKUMAR S/O. SATAPPA DALAL AGE:60 YEARS, OCC: AGRICULTURE, R/O: NANDESHWAR, TQ: ATHANI, DIST: BELAGAVI-591304. 28 SMT. NIRMALA W/O. JINNAPPA SADALGE AGE:65 YEARS, OCC: H.H. WORK, R/O: PLOT NO.13, RAJOPADHYA NAGAR, PREETI RAJ BUILDING, KOLHAPUR, STATE: MAHARASHTRA. 29 SRI. SUNIL S/O. PURANDAR SHENDURE AGE:57 YEARS, OCC: SERVICE, R/O: C/O. VIPULA. M. ZIRALE, - 7 - NC: 2025:KHC-D:404 WP No. 108475 of 2018 530/1/17, RATNATRAYA INGALE NAGAR, DIST: KOLHAPUR, MAHARASHTRA. 30 SRI. ANIL, S/O. PURANDAR SHENDURE AGE: 55 YEARS, OCC: SERVICE, R/O: SWAMY VIVEKANAND SIKSHAN SANSTHA, COLLEGE KARAD, DIST: SATARA. 31 SMT. VIPULA W/O. MAHAVEER ZIRALE AGE:57 YEARS, OCC: H.H.WORK, R/O: 530/1/17, RATNATRAYA INGALE NAGAR, DIST: KOLHAPUR, MAHARASHTRA. 32 SRI. RATAN S/O. RAOSAHAB TAPAKIRE AGE: 24 YEARS, OCC: STUDENT, R/O: DASARA CHOWK, JAIN BOARDING KOLHAPUR, MAHARASHTRA. 33 SRI. SANDESH, S/O. RAOSAHAB TAPAKIRE AGE: 26 YEARS, OCC: SERVICE, R/O: LAXMI SUB-MERCIBLE PUMP INDUSTRIES, GOKUL SHIRGAON, KOLHAPUR, MAHARASTHRA. 34 SRI. PURANDHAR, S/O. RAMACHANDRA SHENDURE AGE: 70 YEARS, OCC: RETIRED GOVT. SERVANT, C/O. VIPULA M. ZIRALE, R/O: 530/1/17, RATNATRAYA INGALE NAGAR, - 8 - NC: 2025:KHC-D:404 WP No. 108475 of 2018 DIST: KOLHAPUR, MAHARASHTRA. 35 SMT. SUMAN, W/O. BHUPAL BAMMANNAVAR AGE: 67 YEARS, OCC: H.H. WORK, C/O. UDAY APPASAHEB KUDCHE, PATIL GALLI, RAIBAG TALUK, DIST: BELAGAVI-591317. …RESPONDENTS (BY SRI. ARUN L. NEELOPANT AND SRI. SHRIHARSHA A. NEELOPANT, ADVOCATES FOR R1; NOTICE TO R4, R5, R6, R11, R12, R14, R16, R18, R19, R21, R24, R26, R27, R28 AND R35 ARE SERVED; R8 HELD SUFFICIENT, V/O. DATED 10.08.2023; R17 IS ABATED. V/O. DATED 05.09.2024; SERVICE OF NOTICE IN RESPECT OF UN-SERVED RESPONDENTS I.E., R2, R3, R7, R9, R10, R13, R15 (A AND B), R20, R22, R23, R29, R30, R31, R32, R33 AND R34 DEFERRED) THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF CONSTITUTION OF INDIA, PRAYING TO, A WRIT OF CERTIORARI, QUASHING THE IMPUGNED ORDER DATED 01.08.2018, PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, RAIBAG, IN EX.NO.22/2016, PRODUCED AT ANNEXURE- R1, IN THE INTEREST OF JUSTICE AND EQUITY. THIS PETITION, COMING ON FOR preliminary HEARING B-GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI - 9 - NC: 2025:KHC-D:404 WP No. 108475 of 2018 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This writ petition is filed challenging the order dated 01.08.2018 passed in E.P.No.22/2016 by the Prl. Civil Judge, Junior Division, Raibag. 2. Brief facts leading rise to the filing of this writ petition are as under: The respondents Nos.1 to 4 have filed a suit against the petitioners and the other respondents for partition and separate possession in OS No.45/2005. The said suit was decreed and it is ordered that, the respondent Nos.1 to 4 are jointly entitled to get 7/63 share in the suit property. It is further ordered that, the defendant No.4 is also entitled to get her 1/63 share in the suit property. Further, the plaintiffs and the defendant No.4 are entitled to get their share as ordered above. Pursuant to the preliminary decree passed in OS No.45/2005, respondent Nos.1 to 4 have initiated the final decree proceedings in FDP No.9/2008 on the file of the Prl. Civil Judge and JMFC., Raibag. The trial Court passed a final decree on 19.12.2015. The respondent Nos.1 to 4 have filed an execution petition in EP - 10 - NC: 2025:KHC-D:404 WP No. 108475 of 2018 No.22/2016. The executing Court issued a notice to the JDRs including the petitioners. The petitioners appeared before the executing Court and they did not file their objections. The executing Court issued a delivery warrant as per the order. The petitioners, aggrieved by the order dated 01.08.2018 have filed this writ petition. 3. Heard the learned counsel for the petitioners and respondent Nos.1 to 4. 4. Learned counsel for the petitioners submits that, the petitioners are not a party to the judgment and decree passed in OS No.45/2005 and the impugned order passed, is not binding on the petitioners. Hence, submits that the executing Court has committed an error in issuing the delivery warrant. She also submits that in OS No.347/2009, which was filed to get a declaration in respect of the absolute sale deeds in favour of the petitioners, the decree holders in Execution No.22/2016 are not parties. Hence, on these grounds, prays to allow the writ petition. 5. Learned counsel for the respondents Nos.1 to 4 submits that, the petitioners have purchased the property - 11 - NC: 2025:KHC-D:404 WP No. 108475 of 2018 during the pendency of the suit vide different sale deeds dated 11.06.2009. Hence, the sale transaction is hit by Section 52 of the Transfer of property Act and further, contended that, the interest of the petitioners was protected in final decree Proceedings. Hence, the petitioners have no right to challenge the order passed by the executing Court. Hence, prays to dismiss the writ petition. 6. Perused the records and considered the submissions of the learned counsel for the parties. 7. It is not in dispute that the respondent Nos.1 to 4 have filed a suit for partition and separate possession against the petitioners and the other respondents. The said suit was decreed vide judgment and preliminary decree dated 17.04.2008. During the pendency of the suit, some of the respondents have sold the property in favour of the petitioners. The petitioners have purchased the property during the pendency of the suit. After the disposal of the suit, respondent Nos.1 to 4 have initiated the Final Decree Proceedings in FDP No.9/2008 on the file of the learned Prl. Civil Judge and JMFC., Raibag. The trial Court has passed the final decree on - 12 - NC: 2025:KHC-D:404 WP No. 108475 of 2018 19.12.2015. While disposing of the Final Decree Proceedings, the FDP Court has recorded the finding, which reads as follows: “ There is no inhibition in Hindu Law that a Coparcener/Co- sharer cannot alienate his undivided share. The alienation is valid to the extent of his undivided share. Admittedly, the respondent Nos.33 and 34 purchased the suit schedule property after the determination of a subsisting right of a co- sharer in the property. They need not file one more suit for partition and seek allotment of share of their vendors. Their right is protected to the extent of the share of their vendors (Emphasis supplied). If the respondents had been properly advised by men having proper knowledge of law, they would not have ventured to purchase the entire suit schedule property that too after the determination of a subsisting right of a co-parcener/Co-sharer.” 8. From the perusal of the Final Decree passed in FDP No.9/2008, the interest of the petitioners is protected. The petitioners did not challenge the Final Decree passed in FDP No.9/2008. The final decree has attained the finality. Respondent Nos.1 to 4 have filed an execution petition in EP No.22/2016 on the file of the Prl. Civil Judge and JMFC., Raibag. The executing Court issued a notice to the petitioners, as well as to the other respondents. The petitioners and the other respondents appeared in the said execution, but they did - 13 - NC: 2025:KHC-D:404 WP No. 108475 of 2018 not file their objections. The executing Court, considering that the final decree has attained finality, has issued the delivery warrant. The executing Court was justified in issuing the delivery warrant. Neither the petitioners nor the respondent Nos.5 to 35 have challenged the final decree. As observed above, the final decree has attained the finality. The executing Court was justified in passing the impugned order. Hence, I do not find any error in the impugned order. Accordingly, I proceed to pass the following: ORDER The writ petition is dismissed. Sd/- (ASHOK S. KINAGI) JUDGE HMB ct-cmu LIST NO.: 1 SL NO.: 4