- 1 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 499 OF 2026 (GM-CPC) BETWEEN: KRISHNA SHETTY S/O LATE SANJEEVA SHETTY, AGED ABOUT 61 YEARS, R/AT DOOR NO.5-107/1, KOPILA COMPOUND, NAGORI ALAPE, MANGALURU, D.K. DISTRICT – 575 002 …PETITIONER (BY SRI. K. RAVISHANKAR, ADVOCATE) AND: NARENDRA SUVARNA S/O LATE MUTHAPPA BANGERA, AGED ABOUT 56 YEARS, R/AT DHANWIN NIVAS, KOILA COMPOUND, KANKANADY TALUK, MANGALURU, D.K. DISTRICT – 575 002 …RESPONDENT THIS W.P. IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 05.11.2025 PASSED ON I.A.NO.I PASSED IN EX. C 69/2025 PENDING ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE AND CJM MANGALURU D. K (PRODUCED VIDE ANNX-A) TO THE WP AND ALLOW THE APPLICATION AS PRAYED FOR. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL ORDER This petition by the judgment debtor in Ex.C.No.69/2025 is directed against the impugned order dated 05.11.2025 passed by the I Additional Senior Civil Judge and CJM, Mangaluru (for short “the Executing Court”), whereby the application I.A.No.1 filed by the petitioner seeking condonation of delay in filing objections to the main execution petition was rejected by the Executing Court. 2. Heard learned counsel for the petitioner and perused the material on record. 3. The respondent / plaintiff - decree holder instituted a suit in O.S.No.455/2015 against the petitioner / defendant – judgment debtor for declaration and other reliefs in relation to the suit schedule immovable property. The said suit having been contested by the petitioner, the Trial Court decreed the suit in favour of the respondent vide judgment and decree dated 26.08.2022 with cost of Rs.65,691/- payable by the petitioner to the respondent. Aggrieved by the judgment and decree of the Trial Court, the petitioner filed an appeal, which was dismissed on merits by the First Appellate Court in R.A.NO.13/2022 on 27.08.2024, - 3 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 thereby confirming the judgment and decree of the Trial Court. So also, RSA No.1210/2024 filed by the petitioner was dismissed by this Court vide judgment and decree dated 27.08.2024, thereby confirming the judgment and decree passed by the Trial Court and the First Appellate Court including imposition of cost of Rs.65,691/- payable by the petitioner to the respondent, which had accordingly attained finality and became conclusive and binding upon the petitioner. In the said RSA No.1210/2024, this Court held as under: “This Regular Second Appeal is filed by the defendant, challenging the judgment and decree dated 27.04.2024 in R.A.No.13/2022 on the file of IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, (hereinafter referred to as “The First Appellate Court”) confirming the judgment and decree dated 26.08.2022 in O.S.No.455/2015 on the file of the I Additional Senior Civil Judge and CJM, Mangaluru, Dakshina Kannada, (hereinafter referred to as “The Trial Court”) decreeing the suit of plaintiff. 2. For the sake of convenience, parties are referred to as per their ranking before Trial Court. 3. It is a case of the plaintiff that, the suit schedule property is belonged to one Mohandas Kamath, who died on 09.10.2009 leaving behind his siblings, namely - 4 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 Sri. Varadaraj Martappa Kamath and Smt.Radhika Ballary as his surviving legal heirs. The plaintiff has purchased the suit schedule property as per registered deed of sale dated 02.09.2013 (Ex.P.7), from the brother and sister of deceased Mohandas Kamath and as such, the plaintiff has filed suit in O.S.No.455/2015 against the defendant, who was interfered with the suit schedule property based on a Will dated 12.06.2009 said to have been executed by the testator-Mohandas Kamath. 4. The suit was resisted by the defendant by filing the written statement, stating that the sale consideration has not been passed to the vendors of the plaintiff. The case of the defendant is that, late Mohandas Kamath has executed Will dated 12.06.2009 bequeathing the suit schedule property in favour of the defendant and the said Will was registered on 19.11.2013 and therefore the defendant has sought for dismissal of the suit. 5. Based on the pleadings on record, the Trial Court has formulated the issues for its consideration. In order to establish their case, plaintiff has examined two witnesses as PW.1 and PW.2 and produced 16 documents and same were marked as Ex.P.1 to Ex.P.16. Defendant has examined two witnesses as DW.1 and DW.2 and marked 21 documents and the same were marked as Ex.D.1 to Ex.D.21. 6. The Trial Court, after considering the material on record by judgment and decree dated 26.08.2022 decreed the suit of the plaintiff, holding that the plaintiff had acquired - 5 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 the suit schedule property in terms of the registered sale deed dated 02.09.2013. Feeling aggrieved by the same, the defendant has preferred R.A.No.13/2022 before the First Appellate Court and the same was resisted by the plaintiff. The First Appellate Court, after re-appreciating the material on record by its judgment and decree dated 27.04.2024, dismissed the appeal, consequently, confirmed the judgment and decree in O.S.No.455/2015. Feeling aggrieved by the same, the defendant has preferred this Regular Second Appeal. 7. I have heard Sri.S P Kulkarni, learned Senior counsel appearing on behalf of Sri.Chandrashekar M, for the appellant and Sri.G Balakrishna Shastry, learned counsel appearing for respondent. 8. Sri.S P Kukarni, learned Senior counsel appearing for the appellant contended that, the finding recorded by both the Courts below requires to be interfered with on the ground that both the Courts below have not properly appreciated the Will dated 12.06.2009 (Ex.D.13). He further submitted that, the evidence of PW.1 makes it clear that there was no transfer of consideration made in furtherance of the registered sale deed dated 02.09.2013 (Ex.P.7) and therefore, he contended that, as there is no consideration has been made pursuant to the registered sale deed, the sale deed itself is void in terms of Section 54 of the Transfer of Property Act, 1882 (the “T.P.Act” for short) and in this regard, he places reliance on the judgment of the Hon’ble Supreme Court in the case of Kewal Krishan Vs. Rajesh - 6 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 Kumar and others reported in AIR 2022 SC 564 and contended that, as there is no transfer of consideration in terms of the registered sale deed dated 02.09.2013 the said sale deed itself is void. Accordingly, sought for interference of this Court. 9. Nextly, it is contended by Sri.S P Kulkarni, learned Senior counsel that, in the event, if, there is any discrepancy with regard to identifying the signature on the particular document, it is safe for the Court to secure opinion of the expert evidence in the matter and in this regard as both the Courts below have not looked into the said aspect of the matter and in this connection he referred to the judgment of this Court in the case of Sri Devaraj Vs. Smt. Dayarathini and Others reported in 2020 (4) KCCR 3198 and in the case of K.V.Subbaiah Vs. K.M.Somaiah reported in 2018 (5) KCCR 540 and he submitted that, the Court has two options either to refer the disputed signature to hand writing expert for its opinion or to compare signature by itself. Referring to the aforementioned two judgments, he submitted that, there is no finding recorded by the Trial Court with regard to the same and as such he sought interference of this Court. 10. Sri.S P Kulkarni, learned Senior counsel appearing for the appellant, further submitted that, the First Appellate Court, being a last Court for finding on facts is concerned, followed the statutory obligation as provided under Order XLI Rule 31 of the CPC and in this regard he places reliance on the judgment of Hon’ble Apex Court in - 7 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 the case of Somakka (Dead) by LRs. Vs. K. P. Basavaraj (Dead) by LRs. reported in AIR 2022 SC 2853 and in the case of the Uma Pandey and Another Vs. Munna Pandey and others reported in AIR 2018 SC 1930 and submitted that, if there is misconstruction of the document by both the Courts below and same is resulting in admitting the matter and to frame the substantial question of law as required under Section 100 of the CPC. Accordingly, he submitted that the interference is called for in this appeal. 11. Per contra, Sri.G Balakrishna Shastry, learned counsel appearing for Rakesh Kini for respondent, sought to justify the impugned judgment and decree passed by the Courts below and contended that, in a suit for declaration, it is a duty of the plaintiff to prove acquisition of the property and in this regard as the plaintiff had acquired the property as per registered sale deed on 02.09.2013 (Ex.P.7), that itself would establish the right of the plaintiff over the suit schedule property. 12. 12. Insofar as the argument advanced by the learned Senior counsel for the appellant with regard to the transaction that has been made in the sale deed is concerned, learned counsel for respondent refers to Clause 1 of the registered sale deed dated 02.09.2013 and submitted that, the consideration has been made in terms of the registered sale deed and accordingly, sought for dismissal of the Regular Second Appeal. 13. Having taken note of the submission made by the learned counsels appearing for the parties, it is not in - 8 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 dispute that the suit schedule property is belonged to one Mohandas Kamath who died on 09.10.2009 leaving behind his brother-Sri.Varadaraj Martappa Kamath and his sister- Smt.Radhika Ballary, who were the surviving legal heirs. It is not in dispute that Mohandas Kamath was a bachelor. It is the case of the plaintiff before the Trial Court that, as per registered sale deed dated 02.09.2013 (Ex.P.7), plaintiff has purchased the suit schedule property from the surviving legal heirs of the late Mohandas Kamath, namely Sri. Varadaraj Martappa Kamath and Smt. Radhika Ballary. In this regard, I have carefully examined the recitals in the registered sale deed dated 02.09.2013 (Ex.P.7), wherein it is stated that, the total sale consideration of Rs.14,70,000/- has been received by the vendors thereunder and accordingly, I find force in the submission made by the learned counsel appearing for the respondent with regard to the transfer of sale consideration pursuant to the registered sale deed dated 02.09.2013. That apart, if a registered sale deed has been executed by the parties, it is a notice to the public. Since the parties to the deed have affixed their signature with regard to the recitals in the registered sale deed, the same has to be accepted. 14. In the present case, the defendant claims his right in respect of the property in question in terms of the unregistered Will dated 12.06.2009 said to have been executed by late Mohandas Kamath in favour of defendant and the said Mohandas Kamath died on 09.10.2009 and thereafter the said unregistered Will was registered on 19.11.2013. In this regard, on careful examination of the - 9 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 finding recorded by both the Courts below as the defendant, though has made out a case through the Will said to have been executed by late Mohandas Kamath on 12.06.2009, however, nothing is stated by the defendant in his written statement nor through his oral evidence with regard to the steps taken by him after the death of Mohandas Kamath till the registration of the Will said to have been made on 19.11.2013. 15. In this regard taking into consideration the factual aspects on record, that the defendant has failed to establish his case in respect of removing the suspicious circumstances and following the declaration of law made by the Hon’ble Supreme Court in the case of H.Venkatachala Iyengar Appellant Vs. B N Thimmajamma and Others reported in AIR 1959 SC 443. I am of the view that the finding recorded by both the Courts below is just and proper and both the Courts below have rightly arrived at a conclusion that the defendant has failed to prove the Will said to have been made by late Mohandas Kamath on 12.06.2009. Insofar as the judgment referred to by the learned Senior counsel with regard to Order 41 Rule 31 is concerned, I have carefully examined the points for consideration made by the First Appellate Court at paragraph No.8 of the impugned judgment and decree in R.A.No.13/2022. The First Appellate Court after re- appreciating the entire material on record including oral and documentary evidence produced before the Trial Court, a detailed consideration has been made by the First Appellate Court and the same is in terms of the judgment rendered by - 10 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 Hon’ble Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwari (Deceased) By LRs. reported in (2001) 3 SCC 179. In that view of the matter, taking into consideration the factual aspects on record, the First Appellate Court after re-appreciating the entire material on record, in terms of judgment rendered by the Hon’ble Apex Court in the case of Somakka (Dead) by LRs (supra), I am of the view that, the judgment rendered by the First Appellate Court is in conformity with the judgment referred to by the learned Senior counsel insofar as the arguments advanced by the learned Senior counsel appearing for the appellant with regard to the discrepancy insofar as the signature of the testator in the Will dated 12.06.2009 is concerned. It is well established principle in law that the said aspect is under a relevancy chapter under the Evidence Act and in the event, if the Trial Court arrives at a conclusion that the signature mentioned in the document has to be verified through naked eye and there is no question of referring the matter to the expert evidence. It is in the discretion of the trial court. In that view of the matter, in all the circumstances, the appellant has failed to establish his case under Section 100 of the CPC, as there is no acceptable substantial question of law required to be framed in this appeal, hence the appeal is dismissed at the admission stage itself.” 4. In pursuance of the judgment and decree passed by the Trial Court and ultimately confirmed by this Court in RSA No.1210/2024 dated 27.08.2024 including imposing cost of - 11 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 Rs.65,691/- payable by the petitioner to the respondent, respondent instituted the instant execution proceedings in Ex.C.No.69/2025 seeking to execute the decree to the extent it directed the petitioner to pay cost of Rs.65,691/- to the respondent and for other reliefs. In the said execution proceedings, the petitioner-judgment debtor filed the instant application, I.A.No.1 seeking condonation of delay and permission to file objections to the execution petition. The respondent having opposed the said application filed by the petitioner, the executing Court proceeded to pass the impugned order rejecting the application by holding as under: “ORDERS ON I.A. No.I Applicant/Judgment Debtor has filed instant application under Section 151 of C.P.C praying to receive objection to the main petition after condoning delay in its filing. 2. In the memorandum of facts it is stated that, when the matter posted for objection to main petition, the applicant was suffering from severe fever, hence he could not contact his counsel to give necessary instruction to prepare the objection to the main petition. This Hon’ble Court was taken the objection of the judgment debtor to main petition as not filed and issued arrest notice against the - 12 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 judgment debtor. The applicant is having valid defence to contest the case. Non filing of the objection neither intentional nor deliberate, but same is due to the aforesaid bonafide reasons. Hence, prayed to allow the application. 3. On the other hand, the learned counsel for the decree holder filed objection to the present application by contending that, the present application is not sustainable in the eyes of law. This petition is preferred on the base of preliminary issue. The Judgment Debtor had preferred RA before the Hon’ble District Court and the Hon’ble Court was dismissed the appeal and confirmed the trial court judgment. The Judgment Debtor had also preferred RSA before Hon’ble High Court of Karnataka and the said appeal was dismissed in admissions itself. Hence, there is no grounds made out by the aforesaid Judgment Debtor to allow the application. Both the Appellate Courts confirmed the trial court judgment. As such, judgment of the trial court reached its finality and there is no further appeal. Further it is stated that, the arrest notice is served, but Judgment Debtor had not complied the order of the Hon’ble Court. The decree holder already suffered great loss and he has not having any source of income to lead his family life. The decree holder already spent his life in this legal proceedings from 2015 till now i.e., from 10 years and same cannot be continue as a matter of right. Hence, prays to reject the application with heavy cost. 4. Heard the arguments by the both side counsels on I.A No.1 and perused the materials placed on record. - 13 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 5. The point that arises for consideration is as follows: 1) Whether I.A. No.I filed under Sec.151 of CPC deserves to be allowed ? 2) What order ? 6. The finding on the above point is in the Negative for the following: R E A S O N S 7. Point No.1:- The decree holder has filed the present petition for executing the decree. 8. In the memorandum of facts it is stated that, due to ill-health of the judgment debtor, he could not file objection to main petition. Hence, this Hon’ble Court was taken the objection of the judgment debtor to main petition as not filed and issued arrest notice against the judgment debtor. Now, the applicant is having valid defence. Non filing of the objection neither intentional nor deliberate, but same is due to the aforesaid bonafide reasons. 9. In the objection, the decree holder has contended that, this petition is preferred on the base of preliminary issue. The Judgment Debtor had preferred RA and RSA before Hon’ble Appellate Courts and both the Hon’ble District Court and Hon’ble High Court confirmed the trial court judgment. As such, judgment of the trial court reached its finality and there is no further appeal. Further it is stated that, the arrest notice is served, but Judgment Debtor had not complied the order of the Hon’ble Court. The decree - 14 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 holder already suffered great loss and he has not having any source of income to lead his family life. The decree holder already spent his life in this legal proceedings from 2015 till now i.e., from 10 years and same cannot be continue as a matter of right. 10. On perusal of memorandum of facts filed by the judgment debtor and objection filed by the Decree Holder it is very clear that, the original suit filed by the plaintiff/decree holder against the defendant/judgment debtor for the relief of declaration of title over the suit schedule property under the Sale Deed dated 02.09.2013 and based on the Will dated 12.06.2009. The same has decreed with cost. Thereafter, the defendant/judgment debtor has filed an appeal before the Hon’ble IV Addl. Distirct and Sessions Judge, Mangaluru in RA No.13/2022 by challenging the Judgment and Decree in OS No.455/2015. After hearing the both sides, the appellate authority is also confirm the trial court Judgment and Decree and Appeal is dismissed. Thereafter, the judgment debtor has preferred RSA before the Hon’ble High Court of Karnataka in RSA No.1210/2024 (DEC/INJ). The same was also disposed on 27.08.2024 by dismissing the RSA by the Hon’ble High Court of Karnataka. The same has been produced by the counsel for decree holder. Based on the Judgment and Decree, the decree holder seeks recovery of money of Rs.65,691/- which is awarded by the court by way of cost. On perusal of the objection to main petition, the judgment debtor challenged the trial court order by various grounds in Execution Petition which is not maintainable at this stage. This Execution Petition is only for recovery of cost - 15 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 of Rs.65,691/- as per the decree. Except that, this court has no jurisdiction to decide any other legal issues as contended in the objection to main petition. The petition being a recovery of money by way of cost. This court is having power to recover the cost by the judgment debtor on behalf of the decree holder. This court cannot go behind the decree. The Executing court cannot go beyond the decree, hence the application filed by the judgment debtor for permit him to file objection to main petition. In such circumstances, this objection and application is not maintainable at this stage. Therefore, except the recovery of cost amount this court has no other options to deny the decree. Therefore, the application filed by the judgment debtor cannot be accepted and the objection raised by the decree holder can be accepted. Hence, the application filed by the judgment debtor is liable to be dismissed with cost of Rs.1,000/- due to delay of the proceedings by the judgment debtor. Hence this court answered point No.1 in the Negative. 11. Point No. 2:- From the aforesaid discussion, this court proceed to pass the following : O R D E R I.A No.I under Section 151 of CPC filed by the applicant/judgment debtor is hereby rejected with cost of Rs.1,000/-.” 5. As can be seen from the impugned order, the Executing Court has correctly and properly considered and appreciated the entire material on record and has recorded a - 16 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 correct finding of fact that the judgment and decree passed in O.S.No.455/2015 in favour of the respondent-decree holder against the petitioner-judgment debtor including imposition of cost of Rs.65,691/- had attained finality and become conclusive and binding upon the petitioner by virtue of the judgment and decree passed by this Court in RSA No.1210/2024 dated 27.08.2024, whereby this Court had confirmed the judgment and decree passed by the Trial Court and the First Appellate Court. Accordingly, the Executing Court came to the conclusion that the petitioner was liable to comply with the said judgment and decree, which had attained finality and become conclusive and binding upon him, especially when the Executing Court would not be entitled to go/traverse beyond/behind the judgment and decree passed by the Trial Court and confirmed right up to this Court by virtue of which the petitioner became liable to pay Rs.65,691/- to the respondent and as such, petitioner was not entitled to put forth any contention by filing statement of objections, which were not maintainable and cannot be received on record. 6. Upon reconsideration, re-evaluation and re- appreciation of the entire material on record, I am of the considered - 17 - HC-KAR NC: 2026:KHC:2010 WP No. 499 of 2026 opinion that the impugned order passed by the trial Court cannot be said to suffer from any illegality or infirmity nor can the same be said to be capricious or perverse or having occasioned failure of justice warranting interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in the cases of Radhey Shyam Vs. Chhabi Nath – (2015) 5 SCC 423, K.P. Natarajan Vs. Muthalammal – AIR 2021 SC 3443 and Mohammed Ali Vs. Jaya – (2022) 10 SCC 477. Accordingly, I do not find merit in the petition and the same is hereby dismissed. Sd/- (S.R.KRISHNA KUMAR) JUDGE BMC List No.: 1 Sl No.: 33