- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO WRIT PETITION NO.8666 OF 2018 (GM-CPC) BETWEEN: SMT. RIHANA PARVEEN, D/O LATE MOHAMMAD KHAN, AGED ABOUT 57 YEARS, OCC: HOUSEHOLD WORK, R/AT HUNGANUR VILLAGE, KASABA HOBLI, BENGALURU RURAL DISTRICT- 561217. …PETITIONER (BY SRI. RAGHAVENDRA K., ADVOCATE) AND: SMT. CHANDRAMMA W/O LATE JAYARAM, AGED ABOUT 57 YEARS, OCC: HOUSEHOLD WORK, R/AT SUNNAGHATTA VILLAGE, KASABA HOBLI, CHANNAPATNA TALUK, RAMANAGARA DISTRICT-562138. …RESPONDENT (BY SRI. D.C. DEEPAK, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 9.12.2013 PASSED BY THE SR. CIVIL JUDGE AND JMFC, CHANNAPATNA ON I.A.5 FILED UNDER SEC. 151 OF THE CIVIL PROCEDURE CODE IN EX. PETN. NO. 3/13 VIDE ANNEX-M AND ALSO TO QUASH THE ORDER DATED 25.7.2017 PASSED BY THE ADDL. DISTRICT AND SESSIONS JUDGE, RAMANGARA IN M.A. NO.1/14 VIDE ANNEX-P AS NOT MAINTAINABLE AND ETC. - 2 - THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 19.08.2025 AND COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV ORDER This Writ Petition has been filed seeking to quash the Order dated 09.12.2013 passed by Senior Civil Judge & JMFC, Channapatna on I.A.No.5 filed under Section 151 of CPC in Ex.Petn.No.3/13 and also to quash the order dated 25.07.2017 passed by I Additional District and Sessions Judge, Ramanagara, in M.A.No.1/14. 2. The petitioner herein is the Plaintiff and The respondent herein is the defendant before the Court Below. 3. The Facts of the case are as follows: The Land in question is the land bearing Sy.No. 152/1A measuring 0.30 Guntas situated at Sunnaghatta Village, Kasaba Hobli, Channaptana Taluk, Ramanagara District. The respondent who is the owner of the said land - 3 - in question (suit land) interested to sell the said land in question and the petitioner is interested and ready to purchase the same, executed an agreement of sale on 21.11.2005 in favour of the petitioner for a sale consideration of Rs. 1,05,800/- (Rupees One Lakh Five Thousand Eight Hundred Only) per gunta taking Earnest Money of Rs. 2,000/- and Rs. 5,000/- by Demand Draft bearing No. 348487 before the witness on 19.11.2005. Further, the respondent agreed to execute the sale deed within six months from the date of agreement of sale by receiving the remaining sale consideration amount. But the respondent has not at all executed the Sale Deed within 6 months as per the above said agreement of sale. But the respondent has executed another agreement of sale and requested for extension of time for execution of the sale deed in respect of the land in question in favour of the petitioner. Accordingly, an other agreement of sale dated 24.04.2006 in respect of the above said land in question. - 4 - Even after the expiry of 6 months, the terms of the agreement has not been complied with, and so, the petitioner got issued a legal notice. However, petitioner has not received any response, thereby constrained to file O.S.No.357/2006 before the Civil Judge (Senior Division) at Ramanagara. The trial Court partly decreed the suit which reads as follows: “The suit of the plaintiff is hereby partly decreed. The defendant shall execute the Sale Deed to the extent of her share in favour of the plaintiff within three months. Thereafter the plaintiff may file a suit against children of the defendant for separate possession of share of defendant. Draw decree accordingly" Thereafter, the petitioner filed a Regular Second Appeal No.29/2010 before the I Addl. District and Sessions Judge, Ramanagara against the Judgment and Decree dated 16.02.2010 passed by Principal Civil Judge (Senior Division), Ramanagara and the same was dimissed confirming the Order dated 16.02.2010. After dismissal, - 5 - petitioner filed E.P.No.3/2013 under Order 21 Rule 11(2) of CPC before the Court of Civil Judge Senior Division at Chennapatna on 24.01.2013 for a direction to the judgment debtor to execute the sale deed for the entire share excluding the share of minor by appointing Commissioner. The Executing Court appointed a Commissioner, who after notice and enquiry measured and demarcated the suit land. The Commissioner prepared a mahazar and map (showing 22½ guntas out of 30 guntas), and submitted his report on 15.03.2013. In pursuant to the same, the petitioner deposited the balance consideration of Rs. 3,48,500/- and pursuant to court directions, the Commissioner executed a registered Sale Deed dated 16.07.2013 in favour of the petitioner. Following the Commissioner’s report and execution of the Sale Deed, the respondent, judgment debtor filed I.A.No.5 under Section 151 CPC on 22.10.2013, seeking cancellation of the registered Sale Deed. - 6 - As per the court’s order dated 08.08.2013, the petitioner deposited the balance sale consideration, and the case was adjourned to 18.11.2013. The respondent, however, filed an advancement application under Section 151 CPC to recall the 08.08.2013 order and to advance the hearing to 22.10.2013. The petitioner filed a detailed Statement of Objections on 18.11.2013 to I.A.No.5, denying the averments of the respondent. The trial court, after considering the petitioner’s objections and giving notice of hearing, allowed I.A.No.5 on 09.12.2013 in Ex. Petn.No.3/2013 and cancelled the Sale Deed. The petitioner had then filed R.S.A.No.433/2013 before the High Court under Section 100 CPC, against the judgment and decree dated 20.10.2012 in R.A.No.29/2010 (which confirmed the decree in O.S.No.357/2006 dated 16.02.2010). On 28.02.2017, the petitioner withdrew the RSA with liberty to pursue M.A.No.1/2014 pending before the I Addl. District & Sessions Judge. - 7 - The petitioner filed M.A.No.1/2014 before the I Addl. District & Sessions Judge under Order 43 Rule 1 read with Section 104 CPC, challenging the order dated 09.12.2013 in Ex.Petn.No.3/2013. Ultimately, the The I Addl. District & Sessions Judge dismissed M.A.No.1/2014 filed by the petitioner, by an order dated 25.07.2017. Aggrieved by the same, the petitioner is before this court. 4. Heard learned Counsel on both sides. 5. The Learned Counsel for the petitioner would contend that, the Trial Court, after summary enquiry and considering the agreements of sale and sworn statements, partly decreed the petitioner’s suit. That judgment and decree dated 16.02.2010 was never challenged by the respondent. Based on it, the petitioner filed an execution petition and sought appointment of a Commissioner. The Commissioner, after following due procedure, submitted a report, and despite notice, the respondent refused to participate or object. A Sale Deed was executed on 16.07.2013. The later application under Section 151 CPC - 8 - by the respondent for cancellation of the Sale Deed was not maintainable, and the order dated 09.12.2013 illegal. 6. It was also contended that, the respondent should have disproved the Commissioner’s report by leading his evidence or cross-examination but failed to do so. The appointment of the Commissioner and his report were never challenged. Hence, cancellation of the Sale Deed through order in I.A.No.5 is without authority of law. If aggrieved, the respondent ought to have examined the Commissioner or produced evidence. The Executing Court validly exercised discretion in appointing the Commissioner, who submitted his report with sketch after following due process. The respondent ignored notice, refused to give a statement, and never questioned the report before any competent court. Thus, the impugned order dated 09.12.2013 is illegal. 7. It was further contended that, the petitioner, by bona fide mistake, filed M.A.No.1/14 under Order 43 Rule 1 CPC. The I Addl. District and Sessions without properly - 9 - considering the provision, dismissed it on 25.07.2017. Therefore, the order is unsustainable under law. 8. It was further contended that was raised was that the Commissioner issued notice to the respondent, who refused to accept it. In his absence, a mahazar was conducted, and 22½ guntas of land was demarcated on 25.04.2013. The report was submitted to court. After receipt of the Commissioner’s report, the petitioner deposited the balance sale consideration of Rs.3,48,500/- by demand draft for execution of the Sale Deed. The respondent did not object to the proceedings. After execution of the Sale Deed, the Commissioner was appointed to hand over possession of 22½ guntas to the petitioner. At that stage, the respondent suddenly filed an advance petition, and the earlier order dated 08.08.2013 for measurement was kept in abeyance. At no stage did the respondent challenge any of the orders. If aggrieved, an appeal should have filed against the original suit or execution orders, but failed to do so. - 10 - 9. It was further contended that, if the respondent truly alleged fraud or misrepresentation, she ought to have filed a separate suit under Section 31 of the Specific Relief Act for cancellation of the Sale Deed, not an application under Section 151 CPC. As the Sale Deed was duly registered under the Registration Act, the impugned order dated 09.12.2013 is not sustainable under law. 10. It was also contended that the petitioner by mistake filed M.A.No.1/14 under Order 43 Rule 1 CPC to challenge the order dated 09.12.2013. The I Addl. District and Sessions Court dismissed it without examining whether such an appeal was maintainable. As such, the order dated 25.07.2017 is unsustainable. That the impugned order dated 09.12.2013 is contrary to Section 47 and Order 21 Rule 11 CPC as the Executing Court cannot go beyond the judgment in O.S.No.357/2006. If the respondent was aggrieved, the only remedy was to file an appeal or a suit for cancellation of the registered Sale Deed, not I.A.No.5 under Section 151 CPC. - 11 - 11. Lastly, it was contended that if the respondent believed the Sale Deed was executed through fraud or misrepresentation, the proper remedy lay under Section 26 of the Specific Relief Act for rectification of instrument, and not under Section 151 CPC. The application under Section 151 was therefore not maintainable, and thus the impugned orders liable to be set aside. 12. Learned counsel for the respondent contended that the Orders passed by the executing court and the appellate Court are proper and this petition is not maintainable as the petitioner has not approached the Court with clean hands. 13. It can be observed from the orders on I.A. No. V in Order dated 09.12.2013, passed by Civil Judge Sr. Division and JMFC Channapatna, that the decree holder is entitled for getting the Sale Deed executed only in respect of the share of the judgement debtor. On perusal of the judgement in question it gets clear that the judgement debtor is having only 1/16th share in the property in question. As such the decree holder is entitled to get the - 12 - Sale Deed executed only in respect of 1/16th share in the property in 'question. The property is measuring 30 guntas in extent and as such the decree holder is entitled to get the Sale Deed is executed only in respect of 1.875 guntas. On perusal of the materials on record and also as admittedly by the decree holder and the judgement debtor the said order has been confirmed in R.A.No.29/2010. There is no any contention on the part of the either of the parties that the said judgement and decree has been appealed against before this court. As such the impugned judgement and decree have become final and the decree holder is entitled only to get the Sale Deed executed in respect of 1/16th share of the judgement debtor as observed above that is to an extent of 1.875 guntas and not for any extent exceeding the same. 14. It can also be observed from the findings of that the Trial court that has given a finding that the petitioner has mislead the court for getting the Sale Deed executed in respect of 22% guntas and got it executed. As such the said Sale Deed requires to be rectified by this court and - 13 - concluded that the Sale Deed executed by this court in favour of the decree holder requires to be cancelled in respect of an extent exceeding 1.875 guntas. 15. It can be observed from orders in M.A 1/2014 dated 25.07.2017 passed by I Addl. District and Sessions Judge that the decree holder has vehemently argued that, the executing court cannot go beyond the decree. This argument is based on well settled principles of law. This court is also not having any contrary view to that principle. But the decree holder would also binding by the terms of the decree obtained by him. He too also not having any power to go beyond the decree. When the decree referred supra speaks only in respect of the defendant's share, he has no power to obtain the sale deed in respect of more that the share of the defendant. 16. The appellate court gave a finding that, the court by appointing Commissioner has executed the sale deed, that means, the sale deed come into effect on executing of the decree. Appellate Court further found that while executing the sale deed by the Court Commissioner, he - 14 - too also has committed mistake and held that it is curable mistake and executing court has got every right to question and set aside if the party is intended to execute the decree beyond its terms, the executing court cannot do the same at the behest of the decree holder. Ultimately, the contention of the decree holder is rejected. Further the order passed by the executing court is held to be proper and accordingly the appeal filed by the decree holder is not tenable. 17. Heard the counsel for the petitioner and also on perusing the material on record, it is observed that the petitioner filed this writ petition without clean hands knowing fully, obtained sale deed before the executing Court beyond the decree and not followed the terms of the decree obtained by him in O.S.No.357 of 2006 on file of the Principal Civil Judge (Senior Division) at Ramanagara. Further it is observed that the petitioner is questioning the impugned order dated 25.07.2017 on the file of I Addl. District and Sessions Judge, Ramanagara. Executing Court cannot go beyond the decree, it seems that petitioner has - 15 - filed this writ petition with an ulterior motive and with misleading the facts. In view of the same, the Order passed by the executing court and the appellate court are proper and this petition is not tenable. 18. The executing Court has got every right to question and set aside, if the party is intended to execute the decree beyond its terms. There are no merits to interfere in this writ petition. Accordingly this writ petition is dismissed. Sd/- (DR.K.MANMADHA RAO) JUDGE BNV CT:HR