SHIRINAKHATAR W/O ANWARHUSSAIHN DAFEDAR vs CHANDRAPAL S/O ACHAYABHAR PRASAD VERMA

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD


TH
DATED THIS THE 30 DAY OF JULY, 2026

BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

WRIT PETITION NO. 101628 OF 2022 (GM-CPC)

BETWEEN:

1. SHIRINAKHATAR
W/O ANWARHUSSAIN DAFEDAR,
AGE. 44 YEARS, OCC. HOUSEHOLD WORK,
R/O. RGS CEMENT CHAWAL, GADAG ROAD,
HUBBALLI, DIST. DHARWAD.

2. NARASINBANU
W/O IQBALQHMED NOORKILE,
AGE. 41 YEARS, OCC. AGRICULTURE,
R/O. YALAVATTI, DIST. HAVERI.

3. SMT. SHARIFA
W/O DAWALSAB BABABHAI @ HONNALLI,
AGE. 69 YEARS, OCC. HOUSEHOLD WORK,
R/O. SADARSOFA, KOLEKAR PLOTS,
GOUSIYA TOWN MOSQUE, OLD HUBBALLI,
HUBBALLI, DIST. DHARWAD-580 024.

4. SRI. YUNUS AHMED
S/O DAWALSAB BABABHAI @ HONNALLI,
AGE. 35 YEARS, OCC. SERVICE,
R/O. SADARFOSA, KOLEKAR PLOTS,
BEHIND GOUSIYA TOWN MOSQUE,
OLD HUBBALLI, HUBBALLI-580 024.

5. SRI. MOHAMMAD RAFIQ
S/O DAWALSAB BABABHAI @ HONNALLI,
AGE. 36 YEARS, OCC. SERVICE,
R/O. SADARFOSA, KOLEKAR PLOTS,
BEHIND GOUSIYA TOWN MOSQUE,
OLD HUBBALLI, HUBBALLI-580 024.
… PETITIONERS












(BY SRI. S.B. DODDAGOUDAR, ADVOCATE)
Digitally Signed by SACHIN
SHANKAR MAGADUM

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AND:
1. CHANDRAPAL
S/O ACHAYABHAR PRASAD VERMA,
AGE. 52 YEARS, OCC. BUSINESS,
R/O. H.NO.378/9, DEVAKI NANDAN,
NEAR TORAL APARTMENT, KESHWAPUR,
HUBBALLI-580023.

2. CHANDRABHAN
S/O ACHAYABHAR PRASAD VERMA,
AGE. 46 YEARS, OCC. BUSINESS,
R/O. H.NO.378/9, DEVAKI NANDAN,
NEAR TORAL APARTMENT, KESHWAPUR,
HUBBALLI-580023.
… RESPONDENTS
(BY SRI. SANTOSH B. MANE, ADVOCATE FOR C/R1 AND R2)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI FOR QUASHING THE IMPUGNED ORDER VIDE
ANNEXURE-A DATED 27/01/2022 PASSED BY THE I ADDL. DISTRICT
AND SESSIONS JUDGE DHARWAD SITTING AT HUBBALLI IN M.A.
NO.27/2016 WHEREIN THE APPELLATE COURT HAS CONFIRMED THE
ORDER PASSED BY THE TRIAL COURT IN MISC. NO.8/2012,
WHEREIN PETITION FILED UNDER ORDER 9 RULE 13 OF CPC FOR
SETTING ASIDE THE EX-PARTE JUDGMENT AND DECREE DATED
31/01/2005 IN O.S. NO.172/1999 AND ETC.,

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

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ORAL ORDER

(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)

The captioned writ petition is filed by the defendants
in O.S.No.172/1999 calling in question the order passed
by the Trial Court rejecting their application filed under
Order IX Rule 13 of the Code of Civil Procedure, 1908 (for
short ‘CPC’) seeking to set aside the ex parte judgment
and decree. The said order having been affirmed by the
Appellate Court, the petitioners are before this Court.
2. Learned counsel appearing for the petitioners,
while reiterating the grounds urged in the writ petition,
would vehemently contend that the Courts below have
adopted an unduly technical approach in rejecting the
application filed under Order IX Rule 13 of CPC. It is
contended that the dispute relates to valuable immovable
property and, therefore, this Court, in exercise of its
supervisory jurisdiction, may extend indulgence by
Digitally Signed by SACHIN
SHANKAR MAGADUM

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affording the petitioners an opportunity to contest the suit
on merits.
3. Per contra, learned counsel appearing for the
respondents/plaintiffs would submit that no interference is
warranted. He would point out that the decree for specific
performance passed in O.S.No.172/1999 has already been
fully worked out in Execution Petition No.214/2010. It is
submitted that the sale deed has been executed through
the Court Commissioner in favour of the decree-holders
and the execution proceedings have been closed as fully
satisfied. Therefore, it is contended that the challenge to
the ex parte decree, at this belated stage, is wholly
misconceived and devoid of merit.
4. Heard the learned counsel appearing for the
petitioners and the learned counsel appearing for the
respondents. Perused the material placed on record.
5. The suit for specific performance was instituted
on the strength of an agreement of sale dated in the year
Digitally Signed by SACHIN
SHANKAR MAGADUM

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1997. The petitioners, despite having sufficient
opportunity, failed to contest the proceedings, resulting in
an ex parte decree. Significantly, the petitioners chose to
invoke the provisions of Order IX Rule 13 of CPC only after
the decree had been substantially executed by obtaining a
registered sale deed through the Executing Court. There
was an inordinate delay of nearly seven years in seeking
to set aside the ex parte decree.
6. At the outset, this Court deems it appropriate to
examine the very maintainability of the petitioners’
application under Order IX Rule 13 of CPC in the peculiar
facts of the present case. The issue is no longer confined
to the sufficiency of the explanation offered by the
petitioners for their absence before the Trial Court, but
extends to the larger question as to whether such an
application survives for consideration after the decree for
specific performance has been fully worked out by
Digitally Signed by SACHIN
SHANKAR MAGADUM

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execution of a registered sale deed through the Executing
Court.
A Decree for Specific Performance Does Not, by
Itself, Convey Title
7. It is a settled proposition of law that a decree
for specific performance, by itself, neither creates nor
transfers title in favour of the decree-holder. Such a
decree merely recognises and enforces the contractual
right of the purchaser to obtain a lawful conveyance in
accordance with the terms of the agreement. Having
regard to Section 54 of the Transfer of Property Act, 1882,
ownership in an immovable property passes only upon
execution and registration of a valid sale deed. Therefore,
the decree remains merely executory in nature until the
conveyance is executed either by the judgment-debtor or,
upon his failure to do so, at the hands of the Executing
Court through its appointed officer.
Digitally Signed by SACHIN
SHANKAR MAGADUM

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Jurisdiction of the Court Continues Till the Decree is
Fully Worked Out
8. The scheme of Section 28 of the Specific Relief
Act, 1963 also lends support to the above principle. A
Court passing a decree for specific performance does not
become functus officio immediately upon pronouncement
of the decree. The Court continues to retain jurisdiction
over the decree until the contractual obligations are fully
performed either by execution of the sale deed or until the
contract is rescinded in accordance with Section 28 of the
Specific Relief Act, 1963. Thus, the decree remains alive
only for the limited purpose of effectuating the transfer
contemplated therein. Once the registered sale deed is
executed and the execution proceedings are closed as fully
satisfied, the decree stands completely worked out and
nothing further survives for execution.
Effect of Execution of a Registered Sale Deed in
Enforcement of a Decree for Specific Performance on
Digitally Signed by SACHIN
SHANKAR MAGADUM

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the Maintainability of Proceedings under Order IX
Rule 13 Of CPC
9. It is also not in dispute that the decree for
specific performance has been fully worked out in
Execution Petition No.214/2010 and, in enforcement of the
decree, a registered sale deed has been executed at the
hands of the Executing Court, whereupon the execution
proceedings have been closed as fully satisfied. It is well
settled that a decree for specific performance, by itself,
does not divest the judgment-debtor of title nor vest
ownership in the decree-holder. The decree merely
recognises and enforces the contractual right to obtain a
conveyance. Title passes only upon execution and
registration of the sale deed in terms of Section 54 of the
Transfer of Property Act, 1882. Consequently, once the
registered sale deed has come into existence through the
process of the Executing Court, the decree stands fully
worked out and exhausted, leaving no further executory
obligation to be performed. The rights flowing from the
Digitally Signed by SACHIN
SHANKAR MAGADUM

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decree thereafter stand crystallised into a completed
conveyance under the registered instrument and the
decree-holder holds title by virtue of such conveyance. In
that view of the matter, an application under Order IX
Rule 13 of CPC, though otherwise maintainable before
execution of the decree, cannot be permitted to unsettle a
completed transfer of title effected through a registered
sale deed executed in the course of execution proceedings.
The limited jurisdiction under Order IX Rule 13 of CPC is
confined to examining the validity of the ex parte decree
and cannot be invoked to indirectly annul a conveyance
which has already been brought into existence through the
process of the Court. If the petitioners were aggrieved by
the decree, the appropriate statutory remedy was to assail
the decree in appeal under Section 96 of CPC or pursue
such other remedy as is available in law. Having allowed
the decree to be fully executed and the conveyance to
attain finality, the petitioners cannot seek, under the guise
of Order IX Rule 13 of CPC, to reopen proceedings that
Digitally Signed by SACHIN
SHANKAR MAGADUM

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have culminated in a completed transfer of ownership. The
Courts below have, therefore, rightly held that no effective
relief survives for consideration in proceedings under
Order IX Rule 13 of CPC.
Scope of Order IX Rule 13 CPC Cannot Extend to
Undo a Completed Conveyance
10. Order IX Rule 13 of CPC is intended to provide
a limited remedy to a defendant against an ex parte
decree where summons were not duly served or sufficient
cause prevented appearance before the Court. The
provision is procedural and remedial in character. It
cannot be construed as a mechanism to unsettle rights
that have already crystallised upon complete execution of
the decree. Once the decree has culminated in execution
of a registered sale deed and the execution proceedings
stand closed, setting aside the ex parte decree would
necessarily result in indirectly nullifying a completed
conveyance. Such an exercise falls completely outside the
ambit of Order IX Rule 13 of CPC. The provision cannot be
Digitally Signed by SACHIN
SHANKAR MAGADUM

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invoked to reopen transactions which have already
attained legal finality through the process of execution.
Defendant is not Rendered Remediless by
Completion of the Decree through Execution
11. It is necessary to clarify that the fact that the
decree for specific performance has been fully worked out
by the Executing Court and has culminated in execution
and registration of a sale deed in favour of the decree-
holder does not, by itself, render the judgment-debtor
remediless against the decree. The law does not
contemplate that a defendant, merely because the decree
has been executed and a registered conveyance has been
brought into existence at the hands of the Executing
Court, loses his substantive statutory right to challenge
the decree in an appeal. Section 96(2) of CPC confers a
substantive right of appeal against ex-parte decree passed
by a Court exercising original jurisdiction, subject of
course to the limitations prescribed by law. Thus, where
the grievance of the defendant is against the decree for
Digitally Signed by SACHIN
SHANKAR MAGADUM

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specific performance itself, including the finding that the
agreement was proved, that the plaintiff was entitled to
specific performance, or that the decree ought not to have
been passed ex parte, the appropriate remedy is to
challenge the decree in appeal in accordance with Section
96(2) of CPC, including the statutory remedy available
against an ex parte decree. The mere fact that, during the
pendency or subsequent to the passing of such decree, the
decree has been executed and a registered sale deed has
been executed at the hands of the Executing Court does
not denude the appellate Court of its jurisdiction to
examine the legality and correctness of the decree. If the
decree is ultimately interfered with or reversed in appeal,
the consequential effect of such appellate adjudication can
be worked out in accordance with law, including by
restitution under Section 144 of CPC and by appropriate
consequential orders in respect of the conveyance
executed in enforcement of the decree. Therefore, the
judgment-debtor is not left without an efficacious remedy
Digitally Signed by SACHIN
SHANKAR MAGADUM

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merely because the decree has culminated in a registered
sale deed. However, such appellate remedy cannot be
confused with the limited remedy under Order IX Rule 13
of CPC. Once the decree has been fully executed and the
conveyance has been brought into existence through the
process of the Executing Court, an application under Order
IX Rule 13 cannot be permitted to operate as an indirect
mechanism for nullifying the completed conveyance. The
distinction is significant: execution of the decree does not
extinguish the statutory right of appeal under Section 96
of CPC, but completion of execution does render an
attempt under Order IX Rule 13 of CPC to unsettle the
decree and the conveyance substantially different in
character and incapable of being used as a substitute for
the statutory appellate remedy. Consequently, the
Defendant, if aggrieved by the decree itself, are required
to avail the remedy of appeal under Section 96(2) of CPC,
subject to limitation and other requirements of law, the
subsequent execution of the decree and execution of the
Digitally Signed by SACHIN
SHANKAR MAGADUM

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registered sale deed at the hands of the Executing Court
cannot be relied upon either to defeat that statutory
appellate remedy or to enlarge the limited jurisdiction
available under Order IX Rule 13 CPC.
Alternative Remedies Available to the Defendant
Ex Parte
against an Decree
12. It is necessary to notice that a defendant
against whom an ex parte decree is passed is not confined
to the remedy under Order IX Rule 13 of CPC. The
statutory scheme provides two independent and
efficacious remedies to a defendant aggrieved by an ex
parte decree. The first is to prefer an appeal against the
decree under Section 96(2) of CPC, and the second is to
seek setting aside of the ex parte decree under Order IX
Rule 13 of CPC, subject to the requirements and
limitations prescribed therein. These remedies operate in
their respective fields and the availability or exhaustion of
one remedy does not, by itself, extinguish the other.
Indeed, the defendant may pursue an appeal under
Digitally Signed by SACHIN
SHANKAR MAGADUM

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Section 96(2) even while an application under Order IX
Rule 13 is pending. Therefore, merely because the remedy
under Order IX Rule 13 has become unavailable, or the
application filed thereunder has been dismissed on the
ground of delay, negligence or want of sufficient cause, it
cannot be held that the defendant is thereby rendered
remediless against the ex parte decree itself. The statutory
right of appeal under Section 96(2) of CPC remains
available in accordance with law, subject to limitation.
Effect of Adjudication of Appeal under Section 96(2)
of CPC on Proceedings under Order IX Rule 13
13. However, it would be apposite to clarify that the
converse position does not necessarily hold good. Though
the defendant may avail both remedies, namely, an appeal
under Section 96(2) of CPC and an application under Order
IX Rule 13 of CPC, the two remedies cannot continue
independently after the appellate remedy has been finally
adjudicated on merits. Where an appeal under Section
96(2) CPC is heard and decided on merits, the decree
Digitally Signed by SACHIN
SHANKAR MAGADUM

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passed by the Trial Court merges in the decree of the
Appellate Court. Consequently, once the Appellate Court
has examined and adjudicated upon the decree on merits,
the foundation for an independent proceeding under Order
IX Rule 13 of CPC no longer survives, since the decree
sought to be set aside is no longer the operative decree of
the Trial Court but stands merged in the appellate
adjudication. In such circumstances, the proceedings
under Order IX Rule 13 of CPC would become infructuous
and cannot be permitted to run parallel to or operate
contrary to the judgment and decree rendered by the
Appellate Court. The Doctrine of merger, therefore,
operates in respect of the judicial decrees upon
adjudication of the appeal and, upon such merger, the
remedy under Order IX Rule 13 of CPC ceases to serve
any independent purpose. This distinction is material:
while the availability or failure of proceedings under Order
IX Rule 13 CPC of does not, by itself, extinguish the
statutory right of appeal under Section 96(2) of CPC, a
Digitally Signed by SACHIN
SHANKAR MAGADUM

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final adjudication of the appeal on merits does have the
effect of rendering the pending proceedings under Order
IX Rule 13 of CPC infructuous by reason of merger.
Application of the above Principles to the Present
Case
14. In the present case, the decree for specific
performance has been completely enforced in Execution
Petition No.214/2010. The registered sale deed has been
executed at the hands of the Executing Court, title has
lawfully passed to the decree-holder and the execution
proceedings have been closed as fully satisfied. In view of
these undisputed facts, the application filed by the
petitioners under Order IX Rule 13 of CPC had, by
subsequent events, become wholly infructuous and
incapable of granting any effective relief. The Courts below
were, therefore, fully justified in refusing to reopen
proceedings which had culminated in a completed
conveyance of title through the process of the Court.
There is, therefore, no jurisdictional error or perversity
Digitally Signed by SACHIN
SHANKAR MAGADUM

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warranting interference under Article 227 of the
Constitution of India.
15. The Trial Court, on an elaborate consideration
of the explanation offered by the petitioners, found that no
sufficient cause was made out to condone such prolonged
and unexplained inaction and consequently rejected the
application. The Appellate Court, on a re-appreciation of
the material on record, concurred with the findings
recorded by the Trial Court and affirmed the order, holding
that the petitioners had exhibited gross negligence and
complete lack of diligence in prosecuting their case.
16. I do not find any perversity or jurisdictional
error in the concurrent findings recorded by the Courts
below warranting interference under Article 227 of the
Constitution of India.
17. It is also not in dispute that the decree for
specific performance has already culminated in execution
of a registered sale deed through the Executing Court and
Digitally Signed by SACHIN
SHANKAR MAGADUM

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the execution proceedings in Execution Petition
No.214/2010 have been closed as fully satisfied. Once the
decree has been fully executed and the conveyance has
come into existence through the process of the Court, the
remedy sought to be pursued by the petitioners under
Order IX Rule 13 of CPC becomes wholly illusory. In the
facts of the present case, no useful purpose would be
served in unsettling proceedings that have attained finality
long ago.
18. It is, however, made clear that if any portion of
the sale consideration deposited before the Executing
Court remains payable to the petitioners, they shall be at
liberty to file an appropriate application seeking its
release. If such an application is filed, the Executing Court
shall, after due verification of the identity and entitlement
of the petitioners, release the balance sale consideration, if
any, in accordance with law.
Digitally Signed by SACHIN
SHANKAR MAGADUM

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19. For the foregoing reasons, this Court finds no
ground to interfere with the concurrent orders passed by
the Courts below. Accordingly, the writ petition stands
dismissed
.

Digitally Signed by SACHIN
SHANKAR MAGADUM
(SACHIN SHANKAR MAGADUM)
JUDGE



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