- 1 - NC: 2025:KHC-D:2789 WP No. 103253 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12TH DAY OF FEBRUARY 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT PETITION NO. 103253 OF 2022 (GM-CPC) BETWEEN: 1. SMT. SHANTAVVA @ SHANTA W/O PRAKASH NAIK, AGE. 47 YEARS, OCC. HOUSEHOLD WORK, R/O. HIDKAL VILLAGE, TQ. RAIBAG, DIST. BELAGAVI- 591220. …PETITIONER (BY SRI. SOURABH R. MIRJE FOR SRI. SHIVRAJ S. BALLOLI, ADVs.) AND: 1. SHRI. SHIVAGOUDA S/O GANAPATI GHANTI AGE. 50 YEARS, OCC. AGRICULTURE, R/O. HIDKAL VILLAGE, TQ. RAIBAG, DIST. BELAGAVI -591220. 2. SMT. SAROJINI W/O VASU KHATAKBHAVI AGE. 69 YEARS, OCC. AGRICULTURE AND HOUSEHOLD WORK, R/O. HIDKAL VILLAGE, TQ. RAIBAG, DIST. BELAGAVI -591220. …RESPONDENTS (BY SRI. AKSHAY KATTI, ADV FOR R1, NOTICE TO R2 IS DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 & 227 OF CONSTITUTION OF INDIA., PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 16/08/2022 PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, RAIBAG ON IA NO. V IN EP NO. 9/2016 VIDE ANNEXURE-A AND CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE PETITIONER IN IA NO. V UNDER ORDER XXI RULE 29 READ WITH MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:12:51 +0530 - 2 - NC: 2025:KHC-D:2789 WP No. 103253 of 2022 SECTION 10 OF THE CPC., 1908 IN IA NO. V IN EP NO.9/2016 ON THE FILE OF LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, RAIBAG VIDE ANNEXURE-F THIS PETITION, COMING ON FOR PRL. HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI ORAL ORDER (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This writ petition is filed by the petitioner, challenging the order on I.A.V dated 16.08.2022, passed in E.P. No.9/2016 by the learned Principal Civil Judge and JMFC, Raibag. 2. Brief facts leading rise to the filing of this writ petition are as under: The petitioner filed a suit against respondent No.2 and others, seeking the relief of partition and separate possession in O.S. No.314/2009 on the file of the learned Principal Civil Judge and JMFC, Raibag. The respondents were aware about the pendency of the said suit filed by the petitioner and got a collusive suit filed in the name of respondent No.1 against respondent No.2 in O.S. - 3 - NC: 2025:KHC-D:2789 WP No. 103253 of 2022 No.955/2012, seeking for a relief of specific performance of a contract. The said suit ended in a compromise and compromise decree was drawn. Respondent No.1 filed an execution petition in E.P. No.9/2016. The petitioner filed an application under Order XXI Rule 29 read with Section 10 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’, for short) to stay the execution proceedings. Respondent No.1 objected the application. The trial Court rejected the said application vide order dated 16.08.2022. Hence, this writ petition. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 4. Learned counsel for the petitioner submits that the trial Court has not properly considered the application filed by the petitioner under Order XXI Rule 29 of CPC. The trial Court discussed only about Section 10 of CPC without considering, that an application is filed under Order XXI Rule 29 of CPC. He submits that the trial Court has committed an error in recording a finding that Section - 4 - NC: 2025:KHC-D:2789 WP No. 103253 of 2022 10 of CPC is applicable only to the suits. Hence, on these grounds, he submits that the writ petition may be allowed. 5. Per contra, learned counsel for the respondents supports the impugned order and 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 petitioner filed a suit in O.S. No.314/2009 on the file of the learned Principal Civil Judge and JMFC, Raibag. During the pendency of the said suit, respondent No.1 filed a suit against respondent No.2 in O.S. No.955/2012 for the relief of specific performance of a contract. The said suit was ended in a compromise and the respondents filed an execution petition. The petitioner filed an application under Order XXI Rule 29 of CPC to stay the execution of the decree with regard to the portion of land measuring 35 guntas out of agricultural land bearing R.S. No.247/3 total - 5 - NC: 2025:KHC-D:2789 WP No. 103253 of 2022 measuring 1 acre 10 guntas situated within the limits of Hidakal village, taluk Raibag, belonging to one Bhimappa Ramappa Katakabhavi i.e. the paternal grandfather of the petitioner. He submits that the suit schedule property in O.S. No.955/2012 is the subject matter of O.S. No.314/2009. Till the disposal of O.S. No.314/2009 sought to stay the further proceedings of the execution petition. 8. From the perusal of the impugned order, the trial Court did not consider that the petitioner has filed an application under Order XXI Rule 29 read with Section 10 of CPC. The trial Court has only discussed that Section 10 is not applicable to the execution proceedings without considering that the application is filed under Order XXI Rule 29 of CPC. The trial Court has not assigned any reasons regarding the application, filed under Order XXI Rule 29 of CPC. The said order is incorrect and the same is liable to be set aside. - 6 - NC: 2025:KHC-D:2789 WP No. 103253 of 2022 9. In view of the above discussion, the writ petition is allowed. The impugned order is set aside. The trial Court is directed to re-consider the application afresh and pass appropriate orders in accordance with law. All the contentions of the parties are kept open. Sd/- (ASHOK S. KINAGI) JUDGE kmv CT: BSB