- 1 - NC: 2025:KHC-D:2950 WP No. 107400 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 107400 OF 2024 (GM-CPC) BETWEEN: 1. SMT. BASAMMA W/O LATE BASAPPA M.D AGE 69 YEARS OCC BUSINESS R/O NANDIHALLI VILLAGE TQ: HUVINHADAGALI DIST: VIJAYNAGAR-583219 2. SMT MALLAMMA W/O MATESHAPPA MORGERI AG 53 YEARS OCC BUSINESS R/O NANDIHALLI VILLAGE TQ: HUVINHADAGALI DIST: VIJAYNAGAR-583219 3. SMT MANJUL W/O KARIBASAPPA IGALLA AG 45 YEARS OCC BUSINESS R/O BANDIGERI VILLAGE TQ: HUVINHADAGALI DIST: VIJAYNAGAR-583219 …PETITIONERS (BY SRI. SHARAD V MAGADUM,ADVOCATE) AND: 1. TALAKAL MALLAPPA S/O TALAKAL SIDDAPPA AGED ABOUT 65 YEARS OCC AGRIL. R/O: NANDIHALLI VILLAGE TQ: HUVINAHADAGALI DIST VIJAYNAGAR (OLD BALLARI)-583219 ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:2950 WP No. 107400 of 2024 2. SRI V B MALLIKESHI S/O V B BASAVARAJAPPA AGED ABOUT 56 YEARS OCC AGRIL R/O NANDIHALLI VILLAGE TQ: HUVINHADAGALI DIST: VIJAYNAGAR-583219 …RESPONDENTS (BY SRI. SANTOSH D. NARGUND., ADVOCATE FOR R1; R2-SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI AND QUASH THE IMPUGNED ORDER DATED. 28/10/2024 PASSED ON IA NO. 2 IN EP NO. 23/2019 PENDING ON THE FILE OF CIVIL JUDGE AND JMFC HADAGALI VIDE ANNEXURE-D AND ETC. THIS WRIT PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ) 1. The petitioners are before this Court seeking for the following reliefs: a. Issue a writ in the nature of Certiorari and quash the impugned order dated 28.10.2024 passed on I.A.No.2 in EP No.23/2019 pending on the file of Civil Judge and JMFC Hadagali, vide Annexure-D. b. Issue any other writ or directions as deem fit by this Hon’ble Court in the interest of justice and equity. 2. Respondent No.1 had filed a suit against respondent No.2 for specific performance of an agreement of sale in OS No.8 of 2013, where the suit was partly - 3 - NC: 2025:KHC-D:2950 WP No. 107400 of 2024 decreed directing the refund of the earnest money. Respondent No.1 challenged the said judgment in RA No.60 of 2018, which came to be allowed and a decree of specific performance was ordered in favor of respondent No.1. 3. The respondent No.2 preferred an appeal in RSA No.100089 of 2019, which came to be dismissed on 13.9.2021. Respondent No.2 having filed a Special Leave Petition in Slp.No.12593 of 2021, the said petition also was dismissed on 13.9.2021. It is thereafter that the petitioner filed a suit in OS No.88 of 2021 seeking for partition in respect of various properties including the property subject matter of the specific performance decree. 4. Execution petition having been filed in EP No.23 of 2019, the petitioners filed an application under Rule 97 of Order 21 of the Code of Civil Procedure claiming that they have an interest in the property and the execution proceedings cannot be proceeded without hearing their objections. The said application - 4 - NC: 2025:KHC-D:2950 WP No. 107400 of 2024 has been dismissed vide the impugned order dated 28.10.2024. It is challenging the same, that the petitioners are before this Court seeking for the aforesaid reliefs. 5. Sri.Sharad V.Magadum., learned counsel for the petitioner would submit that a suit has been filed by the petitioners for partition. The petitioners being members of the family being the sisters of respondent No.2-Judgment Debtor, the property in which they have an interest has been made a part of the specific performance suit and if a sale deed is executed in respect to the said property the interest of the petitioner would be adversely affected and as such the trial Court ought to have considered their rights while considering an application under Rule 97 of Order 21 and as such it is submitted that the order passed by the trial Court is required to be set aside and the application under Rule 97 of Order 21 be allowed. - 5 - NC: 2025:KHC-D:2950 WP No. 107400 of 2024 6. Sri.Santosh D.Nargund., learned counsel for Respondent No.1-Decree holder would however submit that the suit for partition has been filed after the disposal of the Special Leave Petition and two years after the execution petition was filed and the application is completely bereft of merits, Malafide and abuse of the process Court, in as much as the application was filed only to delay the execution of a decree which has been confirmed upto the Hon’ble Supreme Court of India. 7. Heard Sri.Sharad V.Magadum., learned counsel for the petitioner and Sri.Santosh D.Nargund., learned counsel for Respondent No.1. Perused papers. 8. The sequence of events have been laid out hereinabove, which would categorically indicate and support the submission of Respondent No.1-Decree holder that the defense set up by Respondent No.2- Judgment debtor has been rejected. Thereafter a suit for partition has been filed and subsequently an application under Rule 97 of Order 21 has been filed. - 6 - NC: 2025:KHC-D:2950 WP No. 107400 of 2024 9. Though in a proceeding under Rule 97 of Order 21 in terms of Rule 100 thereof, it is required for all the issues to be determined in the said application under Rule 97 of Order 21. The fact remains that the petitioner has filed a suit for partition and it is for the petitioner to establish their right in the said suit before seeking for any right in the property subject matter of the specific performance decree. 10. In that view of the matter, I do not find any infirmity in the orders passed by a trial Court, it would however have to be observed that in the event of the petitioner succeeding in the said suit for partition, the Respondent No.1-Decree holder cannot claim any equities. The petition stands dismissed. 11. In view of dismissal of the main petition, pending IA's does not survive for consideration. Hence, IA stands dismissed. Sd/- (SURAJ GOVINDARAJ) JUDGE SR/List No.: 1 Sl No.: 46