Dismissed

Sri H M Farooq v. Sri H.G. Kama Reddy

Karnataka HC3 Sept 2021WP/2918/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition filed by a judgment-debtor challenging the maintainability of an execution petition. The court held that the petitioner was attempting to avoid execution without challenging the decree and that the objection regarding unimpoundeded documents was rightly overruled. The writ petition was dismissed.

What did the court decide?

The writ petition was dismissed with no costs.

Sri H M Farooq Vs Sri H.G. Kama Reddy — Execution and Attachment | Karnataka HC (2021)

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W.P No.2918/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF SEPTEMBER , 2021

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BEFORE

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THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR

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WRIT PETITION No.2918 OF 2021 (GM-CPC)

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BETWEEN :

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SRI. H.M. FAROOQ @ MUEEN FAROOQ S/O K.M. HUSSAIN AGED ABOUT 45 YEARS NO.K1, BIRBAL ROAD JANGAPURA EXTENSION NEW DELHI-110 014 INDIA ... PETITIONER (BY SHRI. SUMAN HEGDE FOR MR. MOH. KAMRAN KHAN, ADVOCATES)

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AND :

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SRI. H.G. KAMA REDDY S/O G.N. KAMA REDDY AGED ABOUT 63 YEARS NO.265, 1^ST FLOOR 17^TH "F" MAIN, KORAMANGLA BANGALORE-560 095 ... RESPONDENT

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 09.09.2019 (I.E., ANNEXURE-A) PASSED BY THE COURT OF THE HONBLE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BANGALORE (CCCH-32) IN EXECUTION CASE NO.2582/2014 AND TO CONSEQUENTLY DISMISS THE SAID EXECUTION CASE NO.2582/2014 PENDING ON THE FILE OF THE HON'BLE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BANGALORE (CCCH-32) AS NOT MAINTAINABLE IN LAW AND ETC.

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W.P No.2918/2021

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THIS WRIT PETITION, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 23.07.2021, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:-

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ORDER

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Petitioner is judgment-debtor in Ex.Case No.2582/2014 arising out of O.S.No.7739/2005. The operative portion of the judgment reads as follows:

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"The suit of the plaintiff is partly decreed with costs.

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The defendant is directed to handover vacant possession of the suit schedule property to the plaintiff within 3 months.

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The defendant is liable to pay arrears of rent of Rs.1,24,920/- to the plaintiff.

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The defendant is liable to pay mesne profits/damages @ Rs.14,520/- p.m. from 16.10.2005 till the defendant handsover vacant possession of the schedule property to the plaintiff.

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The order passed on I.A No.I dated 25.9.2006 will merge with the decree.

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Draw decree accordingly.

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(Dictated to the judgment writer, transcribed by her corrected and then pronounced by me in open court, this the 25^th Day of May, 2010)"

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W.P No.2918/2021

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Petitioner has resisted the execution petition on

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the ground of maintainability. By the impugned order Annexure-A, learned Judge of the Executing Court has overruled the objection and held that petition is maintainable. Hence, this writ petition.

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Smt.Suman Hegde, learned advocate for the petitioner submitted that petitioner has already handed over the possession of the property on 16.08.2005 and therefore, the Execution Petition for payment of money is not maintainable.

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Learned advocate for respondent argued

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opposing the petition.

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I have carefully considered rival contentions and perused the records.

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It is not in dispute that the suit has been decreed. The operative portion of the judgment extracted hereinabove makes it clear that petitioner has been directed to hand over the possession and to pay arrears of rent. The said decree has become final.

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W.P No.2918/2021

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The execution is for recovery of arrears of rent.

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In the objections filed by the petitioner, it is contended that Ex.P7 was impounded because, necessary stamp duty was not paid. Therefore, the decree is not executable. Learned Judge of the executing Court has rightly held in para-17 of the impugned order that there was no material on record to show that the damages ordered in the suit has been settled in earlier litigation and accordingly, over-ruled petitioner's objection.

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In substance, petitioner is seeking to scuttle the execution proceedings without challenging the judgment and decree. Hence, this is not a case to exercise discretionary jurisdiction under Article 226 of the Constitution of India. Consequently, writ petition fails and it is accordingly dismissed.

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No costs.

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Sd/JUDGE

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Yn.

Sri H M Farooq v. Sri H.G. Kama Reddy

Case brief

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Sri H M Farooq v. Sri H.G. Kama Reddy

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