Smt. Thimmamma v. Seenaswamy

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF AUGUST, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.5180/2023 (GM-CPC)

BETWEEN:

SMT. THIMMAMMA W/O LATE THIRUMALEGOWDA D/O THIMMEGOWDA @ BUKKEGOWDA AGED ABOUT 62 YEARS R/AT KIRANGURU VILLAGE KOPPA HOBLI, MANDYA TALUK MANDYA DISTRICT-571 428. …PETITIONER (BY SRI. VENKATA REDDY C.M. ADV.,) AND:

¶1SEENASWAMY S/O LATE GUNDAPPA AGED ABOUT 65 YEARS R/AT NO.792, 20TH CROSS GNANABHARATHI 2ND STAGE NAGADEVANAHALLI MARIYAPPANAPALYA BANGALORE-560 056.

¶2PUTTASWAMYGOWDA S/O THIMMEGOWDA @ BUKKEGOWDA AGED ABOUT 62 YEARS R/AT NO.3724/23, 2ND MAIN GOVINDARAJANAGAR THIMMENAHALLI BANGALORE-560 040. …RESPONDENTS

by RUPA V Location: HIGH COURT OF KARNATAKA

(BY SRI. GURURAJ K. KULKARNI, ADV., FOR R1 SRI. NAGESH V.R. ADV., FOR R2)

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN E.X. NO.58/2016 ON THE FILE OF ADDL. SENIOR CIVIL JUDGE AND JMFC, AT MADDUR. QUASH THE ORDER PASSED DTD

02.11.2022 PASSED VIDE ANNX-K I.A.NO.VIII IN EX NO.58/2016, AND ALLOWED BY PARTLY ON THE APPLICATION UNDER ORDER 21 RULE 58 AND R/W SECTION 47 OF CPC & ETC.

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

ORAL ORDER

This petition is filed challenging the order dated

02.11.2022 passed on IA.No.8 in Execution Case No.58/2016 by the Additional Senior Civil Judge and JMFC, Maddur (for short 'the trial Court').

¶2Heard Sri.Venkata Reddy C.M., learned counsel appearing for the petitioner, Sri.Gururaj K. Kulkarni, learned counsel for respondent No.1, Sri.Nagesh V.R., learned counsel for respondent No.2 and meticulously perused the material available on record.

¶3Respondent No.1 herein filed a suit in OS.No.7656/2012 seeking recovery of money. The said suit came to be decreed vide judgment and decree dated

18.12.2015. The Decree Holder thereafter filed Execution Case No.58/2016 seeking execution of the judgment and decree passed in OS.No.7656/2012. In the said execution proceedings, the Executing Court attached the scheduled properties to the execution petition. Thereafter, the petitioner filed an application under Order XXI Rule 58 read with Section 47 of the Code of Civil Procedure, 1908 (for short 'CPC'), objecting to the execution proceedings. The said application was opposed by the Decree Holder by filing objections. The Executing Court, under the impugned order partly allowed the application filed by the objector and modified the orders dated 16.01.2018 and 21.04.2018 by continuing the attachment to the extent of the half share of the Judgment Debtor and proceeded further.

¶4The contention of the learned counsel for the petitioner is that a suit for partition is pending between the petitioner-objector and respondent No.2-Judgment Debtor and until the share is determined in the said suit by way of a preliminary decree, the Executing Court ought not to have ventured to divide the properties.

¶5It is to be noticed that the Executing Court, taking note of the objections raised by the petitioner-objector, has recorded the reasons that respondent No.2-Judgment Debtor is a half-sharer and that the remaining half share belongs to the petitioner herein and proceeded to modify its earlier order of attachment of the entire suit property by restricting the attachment only to the extent of the half share of the Judgment Debtor.

¶6It is further to be noticed that insofar as the lifting of attachment of the petition properties is concerned, the petitioner cannot have any grievance. Similarly, the petitioner cannot have any grievance in the

present petition as well as in the execution proceedings insofar as continuation of the order of attachment to the extent of the half share of respondent No.2-Judgment Debtor is concerned. The Executing Court has fully protected the interest of the petitioner by modifying the earlier orders of attachment and restricting the attachment to the extent of the share of the Judgment Debtor. I do not find any error in the order passed by the Executing Court calling for interference.

¶7It is needless to observe that if the property attached by the Executing Court is processed further and sale is conducted, the petitioner can raise the said contention in the pending civil suit for partition. If the petitioner succeeds in the said suit, the equities can be worked out by the Court in the final decree proceedings.

¶8It is made clear that the Executing Court shall inform the intending purchaser about the pendency of suit in OS.No.73/2018, for partition and thereafter proceed in

accordance with law. For the aforementioned reasons, the writ petition is devoid of merits and the same is rejected. Pending applications, if any, stand disposed of.

Sd/- (VIJAYKUMAR A. PATIL) JUDGE

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