- 1 - HC-KAR NC: 2025:KHC:28345 W.P. No.32835/2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.32835/2019 (GM-CPC) BETWEEN: 1. SMT. SHOBHA W/O NAGARAJ AGED ABOUT 35 YEARS NO.25, MANJUNATH NAGAR MAGADI ROAD, BENGALURU-23. 2. SMT. HEMA W/O YOGESHWAR AGED ABOUT 33 YEARS NO.4010/F-71, SAIBABA NILAYA SARVAJANICA HOSTEL ROAD VIDYARANYAPURAM MYSURU-570014. …PETITIONERS (BY SRI. MANU N.P. ADV.,) AND: SRI. N. RAMU S/O LATE B. NARAYANAPPA AGED ABOUT 61 YEARS RESIDING AT NO.U-51 NORTHERN PORTION NANAPPA BLOCK, KG NAGAR BENGALURU-19. …RESPONDENT (BY SRI. VENKATESH H.N. ADV.,) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 31.08.2018 MADE IN EX.P.NO.2930/2014 ON THE FILE OF THE XXII Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:28345 W.P. No.32835/2019 ADDL. CITY CIVIL & SESSION JUDGE BENGALURU (CCH NO.7) VIDE ANNEXURE-K & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking following reliefs: "i. To quash the order dated 31.08.2018 made in Ex.P.No.2930/2014 on the file of the XXII Addl. City Civil & Sessions Judge Bengaluru (CCH No.7), vide Annexrue-K." 2. Sri.Manu N.P., learned counsel appearing for the petitioners submits that one Sri.M.N.Krishna filed a suit for partition and separate possession which came to be decreed in part. Later, one of the defendants challenged the same in the appeal before this Court and the appeal came to be partly allowed and the matters were remanded to the Trial Court due to non-joinder of necessary party. The Trial Court on reconsideration after impleading the necessary party, passed a preliminary decree. The said order was challenged by the Defendant - 3 - HC-KAR NC: 2025:KHC:28345 W.P. No.32835/2019 no. 1 in RFA No. 656/2010, the said appeal was partly allowed modifying the judgment and decree of the trial Court. It is submitted that insofar as immovable properties are concerned, final decree proceedings are closed and as per the preliminary decree defendant No.1 filed execution case to execute the preliminary decree insofar as schedule 'D' property is concerned against the petitioners. It is further submitted that the petitioners herein are the children of defendant No.4. It is also submitted that the preliminary decree which has been confirmed by this Court in the appeal categorically held that defendant No.1 is entitled for his share in 'D' and 'E' (1) schedule from defendant Nos.2 to 4. However, the execution proceedings are filed only against legal heirs of defendant No.4 which has been raised by defendant No.4's legal heirs/petitioners before the execution Court contending that the execution petition is not maintainable against the sole defendant and unless the other two defendants i.e. defendant Nos.2 and 3 are arrayed as parties, the execution Court cannot - 4 - HC-KAR NC: 2025:KHC:28345 W.P. No.32835/2019 proceed further. However, the execution Court under the impugned order allowed the execution petition. Hence, he seeks to set aside the same and allow the writ petition. 3. Per contra, Sri.Venkatesh H.N., learned counsel appearing for the respondent supports the impugned order of the executing Court and submits that the executing Court has assigned the detailed reasons as to how the respondent is entitled to recover the articles recorded in the execution petition from the petitioners and considering the said aspect, the execution Court has rightly allowed the petition which does not call for any interference. Hence, he seeks to dismiss the petition. 4. I have heard the arguments of the learned counsel for the petitioners, the learned counsel for the respondent and meticulously perused the material on record. I have given my anxious consideration to the submissions advanced on both sides. - 5 - HC-KAR NC: 2025:KHC:28345 W.P. No.32835/2019 5. The pleading and material on record indicate that one Sri.M.N.Krishna filed a suit in OS.No.786/2003 for partition and separate possession which came to be decreed in part. The said order was assailed by the plaintiff and defendant no.1 in RFA No. 2335/2006 and RFA No. 767/2007 respectively, which were clubbed together and heard. The appeal was partly allowed, wherein the matters were remanded back to the Trial Court due to non-joinder of necessary party. The Trial court on reconsideration after impleading the necessary party passed the judgment and preliminary decree dated 19.12.2009. Defendant No.1 filed an appeal before this Court in RFA.No.656/2010, which was partly allowed vide order dated 08.02.2012. Defendant No.1 initiated final decree proceedings in FDP.No.111/2012 and the said proceedings were closed. Later, defendant No.1 filed Execution Case in Ex.P.No.2930/2014 to execute the decree with regard to the schedule 'D' property. The execution proceedings indicate that the execution - 6 - HC-KAR NC: 2025:KHC:28345 W.P. No.32835/2019 proceedings were initiated against the petitioners herein, who are the children of defendant No.4. The preliminary decree on record indicate that defendant No.1 is entitled for his share in 'D' and 'E' (1) of schedule from defendant Nos.2 to 4 to the extent of 1/5th share. The aforesaid preliminary decree referred clearly indicates that defendant No.1 is required to file execution petition to execute the preliminary decree insofar as schedule 'D' property against defendants Nos.2 to 4. However, the respondent has filed execution petition only against the legal heirs of defendant No.4 and intend to execute the preliminary decree which is impermissible. The trial Court without appreciating the said aspect, allowed the execution petition which is contrary to the preliminary decree. Hence, I am of the considered view that the impugned order of the execution Court would not sustain. For the aforementioned reasons, I proceed to pass the following: - 7 - HC-KAR NC: 2025:KHC:28345 W.P. No.32835/2019 ORDER i) The writ petition is allowed. ii) The impugned order dated 31.08.2018 passed in Ex.P.No.2930/2014 by the XXII Additional City Civil & Sessions Judge, Bengaluru is hereby set aside. iii) It is open for defendant No.1 to file fresh execution petition if law permits. Sd/- (VIJAYKUMAR A. PATIL) JUDGE ABK List No.: 1 Sl No.: 38