1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF APRIL, 2018 BEFORE THE HON'BLE MR.JUSTICE G.NARENDAR WRIT PETITION No.23101/2017 (GM-[ACT]) BETWEEN: Sri.[ENTITY], s/o.Rajaramgupta, aged about 68 years, r/a. No.34, Fort 'A' Street, K.R.Road, Opp. Vani Vilas Hospital, Bengaluru - 560 002. PETITIONER (BY Sri.[ENTITY], Advocate) AND: Sri.[ENTITY], s/o.M.R.Rajanna, major, r/a.No.22, Fort 'A' Street, K.R.Road, Bengaluru -560 002. RESPONDENT (By Sri.[ENTITY], Advocate) This Writ Petition is filed under Article 227 of the Constitution of India, praying to set aside the order dated 1.4.2017 in FDP No.77/2014 in I.A.No.2 under [SECTION] of [ACT] 1908, vide Annex-A LIX Addl. Civil Judge concurrent charges of the X Addl. City Civil Judge allowing the application filed by the petitioner for amendment of the petition and consequently dismissing the application for amendment of the petition. 2 This WP coming on for Orders this day, the court made the following: ORDER
Heard learned counsel for the petitioner and the learned counsel for the respondent.
2. The petitioner is before this Court being aggrieved by the order dated 1.4.2017 preferred by the respondent herein under [SECTION] of [ACT] praying to amend the execution petition and thereby incorporate the relief for payment of interest. The trial court has observed that a preliminary decree came to be passed in [CASE NUMBER] against the respondent/petitioner herein and under the decree, the petitioner/respondent herein was entitled for possession of the schedule property and for damages and the trial court further decreed that the proceedings under [SECTION] of [ACT] being initiated for the purpose of ascertaining damages for which the petitioner/respondent herein is entitled and that the petitioner in the Final Decree Proceedings had not sought for the relief of interest on the damages while preferring the petition. The said application came to be opposed on the premise that no decree for grant of interest has been passed by the trial court and hence, the present application for incorporating a relief which the trial court had not granted was not maintainable and that the executing Court cannot travel beyond the decree. The trial court after considering the respective contentions on behalf of the parties was pleased to state that what is sought by the petitioner is only for incorporating the relief and the fact that as to whether the petitioner/respondent herein is entitled for payment of interest is a matter to be decided on merits and on the above consideration, it was pleased to allow the application permitting the petitioner/respondent herein to incorporate the relief for payment of interest.
3. Learned counsel for the petitioner would place reliance on the ruling in the case of [PRECEDENT] (Head Note -C) and he would also place reliance on the ruling of the Hon'ble Apex Court in the case of [PRECEDENT] dated 22.10.1952 and another ruling of the Hon'ble Apex Court in the case of [PRECEDENT] rendered in [CASE NUMBER] decided on 30.01.2002.
4. The respondent has placed reliance on the ruling in the case of [PRECEDENT].
5. It is fairly admitted that none of the above rulings were raised before the trial court when the application came to be considered and disposed of. In that view, this court is of the opinion that the petition can be disposed of by directing the trial court to consider the application I.A.No.2 after taking into consideration the rulings of the Hon'ble Apex Court and the other High Courts as cited by the learned counsel before this Court. In that view, the impugned order is set-aside and the matter is remitted back to the trial court for consideration afresh after affording opportunity to the parties.
Writ petition stands disposed of accordingly. In view of the disposal of the writ petition, [CASE NUMBER] does not survive for consideration and accordingly, it is rejected.
JUDGE Bss.