Dismissed

Abdulkhadar S/O Babajansab Hulageri v. Umesh S/O Channabasayya Malimath

Karnataka HC5 Dec 2022WP/108988/2017

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged an order appointing a commissioner to execute a sale deed and hand over possession. The court ruled that issuance of a delivery warrant is a statutory right under the Specific Relief Act and does not require prior prayer for possession in the suit.

What did the court decide?

Writ petition dismissed; Execution Court directed to proceed forthwith.

Abdulkhadar S/O Babajansab Hulageri Vs Umesh S/O… — Specific Performance | Karnataka HC (2022)

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WP No. 108988 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 5^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 108988 OF 2017 (GM-CPC)

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BETWEEN:

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ABDULKHADAR S/O BABAJANSAB HULAGERI AGE: 55 YEARS, OCC:BUSINESS R/O: NEAR K.E.B. OFFICE, HAVERI, TALUK and DIST: HAVERI.

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…PETITIONER

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(BY SRI J. S. SHETTY ASSOCIATES, ADVOCATE)

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AND:

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UMESH S/O CHANNABASAYYA MALIMATH AGE: 47 YEARS, OCC:BUSINESS R/O: UDAYA NAGAR, HAVERI, TALUK: HAVERI, DIST: HAVERI.

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…RESPONDENT

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(BY SRI S. H. MITTALKOD, ADVOCATE)

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Digitally signed by SUJATA SUBHASH PAMMAR

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO:- QUASH THE ORDER DATED:24.08.2017 PASSED ON I.A.NO.IV, IN EXECUTION PETITION NO.70/2013 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M HAVERI, THE COPY OF WHICH HAS BEEN PRODUCED HEREWITH AND MARKED AS ANNEXURE-A.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING B- GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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WP No. 108988 of 2017

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ORDER

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The petitioner is before this Court seeking for the following reliefs:

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a) Issue a writ of certiorari to quash the order dated 24.08.2017, passed on I.A.No.IV, in Execution Petition No.70/2013, passed by the Principal Senior Civil Judge and C.J.M., Haveri, the copy of which has been produced herewith and marked as Annexure-A.

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b) Any other direction which this Hon’ble court deems fit to grant in fact and circumstance for the case may kindly be granted in favour of the petitioner by allowing this Writ Petition with cost throughout in the ends of justice and equity.”

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Execution Petition No.70/2013 had been filed for enforcement of a decree of specific performance passed in O.S.No.98/2006. I.A.No.IV had been filed under Order XXI Rule 95 read with Section 151 of C.P.C., for appointment of a commissioner to execute a sale deed and hand over possession of the petitioners’ schedule property. The said application came to be allowed by order dated 24.08.2017, which is impugned in the present proceedings.

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The contention of Sri J. S. Shetty, learned counsel for the petitioner is that such a relief could not have been granted, since no relief for possession had been sought

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WP No. 108988 of 2017

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for in O.S.No.98/2006. The only relief which had been sought for is for execution of a sale deed and therefore, when no relief of possession was sought for, the trial Court could not have appointed the Commissioner to hand over possession of the property and directing for issuance of delivery warrant.

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What has been agreed to be sold was only the vacant land of which the boundaries have not been properly detailed in the agreement of sale and furthermore, there is a construction which have been put up on the property which has not been shown and as such, these matters are required to be considered by the Execution Court before a delivery warrant was issued which has not been done.

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On these grounds, he submits that the order dated 24.08.2017 passed on I.A.No.IV filed under Order XXI Rule 95 read with Section 151 of C.P.C., is required to be set aside.

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Sri S. H. Mittalkod, learned counsel for the respondent submits that being aggrieved by the judgment in

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WP No. 108988 of 2017

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O.S.No.98/2006, the defendant had filed an appeal in R.A.No.53/2008 which came to be dismissed and as such,

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he submits the defendant having failed in the suit and the appeal filed, the same cannot be raised in the execution proceedings.

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This Court has dealt with similar issue in W.P.No.102158/2021 vide its judgment dated 16.06.2022 (Dada and another vs. Appasaheb and another) and held that a direction for issuance of a delivery warrant would come within the purview of clause (3) of Sub-section 3 of Section 28 of the Specific Relief Act, being a statutory right which comes into force only after a decree is passed and once the terms of the decree are complied. The issuance of delivery warrant in pursuance of decree of specific performance of sale of property cannot be said to be an order which goes beyond the decree. In view thereof, the contention raised by Sri J. S. Shetty, learned counsel for the petitioner having been answered by this Court in the above matter, I am of the considered opinion that the ruling laid down in W.P.No.102158/2021 would be applicable to the present matter also, irrespective of

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WP No. 108988 of 2017

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whether possession had been sought for in the suit or not, once a decree of specific performance has been ordered, at the enforcement stage, the Execution Court in terms of Clause (3) of Sub-section 3 of Section 28 of the Specific Relief Act can direct for issuance of delivery warrant. Hence, I do not find any infirmity in the order passed by the trial Court. As such, the Writ Petition does not merit consideration.

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The matter in issue in the present petition is only as regards the execution proceedings. The defendant having failed in a suit and in the appeal, the Execution Court would have to execute the judgment as it is and cannot make or get into an enquiry on the submissions made by the defendant therein. The decree holder is required to be granted all benefits available under the decree without any further delay. The decree having been passed on 28.03.2008, the decree holder has been deprived of all the benefits till now, which is completely unconscionable.

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WP No. 108988 of 2017

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As such, the Writ Petition stands dismissed. The

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Execution Court is directed to proceed with the matter

forthwith.

Sd/JUDGE

SSP

List No.: 1 Sl No.: 26

Abdulkhadar S/O Babajansab Hulageri v. Umesh S/O Channabasayya Malimath

Case brief

What is this about?

What did the court decide?

Abdulkhadar S/O Babajansab Hulageri v. Umesh S/O Channabasayya Malimath

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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