Allowed

T R Bheemasena Rao Dead by Lrs v. Fayaz Ahmed Khan

Karnataka HC20 Aug 2014WP/23959/2014

Case brief

AI extract

What is this about?

High Court of Karnataka allowed writ petition seeking quashing of an order directing inquiry into objections by purchasers under revoked power of attorney. Court set aside impugned order holding no necessity for repetition of inquiry. Relief granted includes liberty to file independent suits.

What did the court decide?

Writ petition allowed. Impugned order under Order XXI Rule 97 CPC set aside. Liberty to respondents to file independent suits. Court below instructed to proceed in accordance with law.

T R Bheemasena Rao Dead by Lrs Vs Fayaz Ahmed Khan — Execution and Attachment | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 20^TH DAY OF AUGUST 2014

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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WRIT PETITION No. 23959 of 2014 (GM-CPC)

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BETWEEN:

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T.R. Bheemasena Rao dead

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By legal representatives

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T.B.Srinivasa Rao,

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Son of Late T.R. Bheemasena Rao, Aged 70 years, Residing at ‘Ashirvad’, 10^th Cross, T.P.K.Road, Sapthagiri Extension, Tumkur – 572 101.

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T.B. Raghavendra Rao, Son of Late T.R.Bheemasena Rao, Aged 62 years, ‘Chakra Nilaya’, 10^th Cross, T.P.K.Road, Sapthagiri Extension, Tumkur – 572 101.

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T.R.Shama Rao, Son of T.C.Ramachandra Rao, Aged 24 years, Grand son of Late T.R.Bheemasena Rao,

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Residing at K.R.Street, Chickpet, Tumkur – 572 101.

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…PETITIONERS (By Shri. G. Papi Reddy , Advocate)

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AND:

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Fayaz Ahmed Khan, Son of Kareem Khan, Aged about 62 years, Resident of 11^th Cross Road, Poorhouse Colony, Badavane, Tumkur Town – 572 101.

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Azamulla Khan, Son of Anwar Khan, Aged about 36 years, Resident of G.H.Resala, Nagavalli Post, Hebbur Hobli 572 145,

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Tumkur Taluk.

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Nazir Ahmed Khan, Son of Late Kareem Khan, Aged about 45 years, Resident of 3^rd Cross, Melekote Main Road, Tumkur Town – 572 101.

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Hidyatullah Khan, Son of Mahboob Khan, Aged about 50 years, Resident of 9^th Cross, Sadashivnagar, Tumkur 572 101.

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Ameer Syed Kaleem, Son of Ameer Sab, Aged about 44 years,

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Balkies Banu, Wife of Ameer Syed Kaleem, Aged about 40 years,

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Respondents 5 and 6 are Residing at S.B.W. Behind Prasanth Talkies, Rangamandira Road, Tumkur – 572 101.

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Mohammad Ibrahim, Son of Late Mohd. Sayeed, Aged about 35 years, Resident of Near Dana Palace, Melukote Road, Tumkur – 572 1010.

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Amjad Ali Khan, Son of Late Abbas Ali Khan, Aged about 48 years, Resident of Melekote Road, 8^th Cross, Sadashivanagar, Tumkur – 572 102.

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Kantharaju T.N., Son of Late Narasappa, Aged about 43 years, Resident of 5^th Cross, Sreeramnagar, Tumkur – 572 102.

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Laxmi Nancharamma,

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Wife of Late V. Narasimha Murthy,

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Aged about 60 years, Resident of Oorkere Kasaba, Tumkur 572 102.

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…RESPONDENTS

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(By Shri. Ravi Kumar .B, Advocate for M/s. Y.R.Sadasiva Reddy and Associates)

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This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 3.12.2013 vide Annexure-G in Execution Petition No.33/2004 pending on the file of the Principal Civil Judge (Sr.Dn.) Tumkur and etc;

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This Writ Petition coming on for Hearing this day, the court made the following:

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O R D E R

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Heard the learned Counsel for the petitioners and the respondents.

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The petitioners are said to be the decree-holders in

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respect of certain immovable property and had sought execution

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of the same. It transpires that on an earlier occasion, several

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persons claiming to be the purchasers of the very property had

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filed objections to the execution under Order XXI Rule 97 of

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the Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’, for brevity) and the executing court on that occasion had held an inquiry and found that the so-called sale deeds, on which the objectors were relying, were executed by a power of attorney holder, whose power of attorney had been withdrawn and revoked and therefore, the sale deeds could not have been validly executed and it would be for the objectors to file independent suits in respect of their claims after the present petitioner – decree-holders obtained the possession of the property and accordingly disposed of those applications. That order was passed in the year 2008. The decree holders are yet to obtain possession. In the meanwhile, the present respondents have now filed similar objections that they are purchasers under several sale deeds and that an inquiry should be conducted as to their right and title. The trial court having ordered inquiry, the petitioners are before this court.

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By coincidence, the very power of attorney, which

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was relied upon on the earlier occasion by the several objectors

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is also the basis, on which the sale deeds are said to have been executed in favour of the present respondents. Since the executing court as well as the lower appellate, on the first occasion, had found that the power of attorney executed in favour of Anand Rao stood revoked and that he had no authority to act on behalf of the principal in executing the sale deeds, similar finding would necessarily follow against the present objectors.

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Consequently, the court below was not justified in

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ordering an enquiry, which was a mere duplication of the earlier proceedings, which would squarely apply to these respondents as well. Therefore, in view of a finding already arrived at, there is no necessity for an inquiry in holding that the sale deeds, under which the objectors were claiming, are doubtful, as the power of attorney had been revoked and the power of attorney holder was not in a position to execute any such sale deeds. This finding of fact being available on record, the executing court was not justified to order an inquiry.

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Accordingly, the writ petition is allowed with liberty to

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the respondents to file independent suits in respect of their rights. The impugned order is set aside. The court below shall proceed in accordance with law insofar as the execution proceedings are concerned.

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Sd/JUDGE

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T R Bheemasena Rao Dead by Lrs v. Fayaz Ahmed Khan

Case brief

What is this about?

What did the court decide?

T R Bheemasena Rao Dead by Lrs v. Fayaz Ahmed Khan

Case brief

What is this about?

What did the court decide?

What the court decided

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