Disposed

Smt Sharfunissa v. Touffeq Ahmed

Karnataka HC11 Jan 2024WP/1422/2023

Case brief

AI extract

What is this about?

Judgment debtor sought quashing of a delivery warrant order in execution proceedings and the underlying ex parte decree allegedly obtained by fraud. She withdrew the challenge to the decree. The court declined to interfere with the impugned order and directed preponement of execution proceedings so she could file objections.

What did the court decide?

Petition disposed without interfering with impugned order; execution proceedings preponed to 22.01.2024; petitioner permitted to file objections; executing court to conclude proceedings within six mon

Smt Sharfunissa Vs Touffeq Ahmed — Execution and Attachment | Karnataka HC (2024)

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NC: 2024:KHC:1470 WP No. 1422 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 1422 OF 2023 (GM-CPC)

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BETWEEN:

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SMT SHARFUNISSA AGED ABOUT 85 YEARS WIFE OF LATE MOHAMMED INAYATHULLA RESIDING AT NO 119/32 BEHIND PHILOMINA HOSPITAL ANJINAYA TEMPLE STREET 6TH CROSS YELAGUNDAPALYAM BANGALORE - 560047.

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…PETITIONER

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(BY SRI. NAYEEM PASHA S.,ADVOCATE)

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AND:

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Digitally signed by ANAND N Location: HIGH COURT OF KARNATAKA

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TOUFFEQ AHMED SON OF EJAZ AHMED AGED ABOUT 45 YEARS RESIDING AT NO 141/31 NEW NO 34, ANJANEYA TEMPLE STREET YELAGUNDAPALYAM ASHOK NAGAR BANGALORE - 560047.

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…RESPONDENT (BY SRI. GOPALA.,ADVOCATE) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASHING THE DELIVERY WARRANT ORDER ON 05/12/2022, IN

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NC: 2024:KHC:1470 WP No. 1422 of 2023

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EXECUTION NO.25091/2019 PENDING ON THE FILE OF 28^TH ADDL CITY CIVIL AND SESSION JUDGE (CCH 29). VIZANNEXURE-A; QUASHING THE JUDGMENT DATED 22/03/2014 AS OBTAINED BY PLAYING FRAUD PASSED IN O.S NO.26573/2013, ON THE FILE OF 28^TH ADDITIONAL CITY CIVIL AND SESSION JUDGE AT BANGALORE, (CCH 29). VIZANNEXURE-C.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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In this petition, the petitioner seeks the following

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reliefs:

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“a. Issue a writ, direction, order or a writ or certiorari, quashing the delivery warrant order on 05.12.2022, in Execution No. 25091/2019 pending on the file of 28^th Addl city civil and session judge (CCH 29) Viz- Annexure-A.

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b. Issue a writ, direction, order or a writ of certiorari quashing the judgment dated 22.03.2014 as obtained by playing fraud passed in O.S. No. 26573/2013, on the file of 28^th Additional city civil and session judge at Bangalore, (CCH 29). Viz- AnnexureC”

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2. The material on record indicates that the

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petitioner is the Judgment Debtor in the instant execution

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NC: 2024:KHC:1470 WP No. 1422 of 2023

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proceedings in Ex. No.25091/2019 which is currently pending before the City Civil Court, Mayohall Unit, Bengaluru [for short, ‘the executing Court’] and has been posted on 28.06.2024. In the instant execution proceedings, the respondent herein is the decree holder.

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The learned counsel for the petitioner has filed a memo seeking withdrawal of prayer No.[b] sought for in the present petition and submits that the petitioner herein unconditionally withdraws prayer No.[b] in the present petition. The said memo which is duly signed by the petitioner as well as the learned counsel for the petitioner reads as under:

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“The undersigned counsel herewith submits that the petitioner will not press the prayer ‘b’ sought to set aside ex parte Judgment and decree in O.S. No.26573/2013 CCH-29, to meet the ends of justice.”

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The memo is placed on record and prayer No.[b] sought for

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in the present petition is dismissed as not pressed.

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NC: 2024:KHC:1470 WP No. 1422 of 2023

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The material on record disclosed that the respondent herein instituted the aforesaid execution proceedings to execute the Judgment dated 22.03.2014 passed in O.S. No.26573/2013 on the file of the XXVIII Additional City Civil and Sessions Judge, Bengaluru. In the said execution proceedings, the executing Court proceeded to pass the impugned order dated 05.12.2022 directing issuance of delivery warrant as against the petitioner/Judgment debtor. On 19.01.2023, this Court passed the following interim order.

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“Issue notice to the respondent.

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Petitioner is permitted to serve the learned counsel appearing for the respondent before the trial Court.

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Petitioner is also permitted to serve the respondent or his learned counsel on the next date of hearing before the trial Court by way of hand summons.

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The learned Presiding Officer to facilitate such service of hand summons. The learned counsel for petitioner submits that fraud has been played on the petitioners insofar as decree is

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NC: 2024:KHC:1470 WP No. 1422 of 2023

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obtained in O.S.No.26573/2013 by showing the wrong address.

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It is submitted that there was no notice served on the petitioner in the proceedings before the trial court.

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It is further submitted that subsequently on the basis of exparte decree obtained, Execution No.25091/2019 has been filed after a lapse of more than five years and in such execution proceedings as well, no notice has been served as is required in terms of Order XXI Rule 22 CPC, as execution was filed after a lapse of two years.

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It is further submitted that even in the execution proceedings, notice was taken at the wrong address.

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It is submitted that though notice has been ordered, without service of notice, proceedings have been progressed in the Execution Proceedings and apart from sale deed having been executed through Commissioner, delivery warrant has been issued.

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It is submitted that though there is observation that despite service of notice, JDR had not appeared. The said observation may not be correct as notice is not served.

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NC: 2024:KHC:1470 WP No. 1422 of 2023

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In light of assertion of fraud, there would be stay of further proceedings in Execution No.25091/2019 till the next date of hearing.”

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According to the learned counsel for the respondents, the said delivery warrant was executed by the Court Bailiff/Ameen with Police help on 18.01.2023. It is also contended that subsequently after obtaining the interim order in the present petition on 19.01.2023, the petitioner has dispossessed the respondent from the suit schedule property by breaking open the lock.

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Per contra, the learned counsel for the petitioner submits that on 18.01.2023, the Court Bailiff did not execute the delivery warrant and did not handover possession of the suit schedule property to the respondent and consequently the petitioner continues to remain in occupation/possession of the suit schedule property even till today. It is also submitted that on 19.01.2023, this Court passed the interim order of stay which continues to subsist even as of today.

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NC: 2024:KHC:1470 WP No. 1422 of 2023

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In view of the aforesaid facts and

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circumstances and dispute between the parties as to execution of the delivery warrant by the Court Bailiff on 18.01.2023, without expressing any opinion on the merits/de-merits of the rival contentions, I deem it just and appropriate to dispose of this petition by providing an opportunity to the petitioner to appear before the executing Court by preponing the proceedings from 28.06.2024 to 22.01.2024 and file objections to the execution petition and contest the same in accordance with law. In the result, the following:

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ORDER

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[a] The petition is hereby disposed of without interfering with the impugned order dated 05.12.2022 in Ex. No.25091/2019 on the file of the XXVIII Additional City Civil and Sessions Judge, Bengaluru.

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[b] The parties are directed to get the execution

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proceedings in Ex. No.25091/2019 preponed/advanced from 28.06.2024 to

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NC: 2024:KHC:1470 WP No. 1422 of 2023

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22.01.2024 by filing appropriate application in

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this regard.

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[c] The petitioner is directed to file her statement of objections to the execution petition on 22.01.2024.

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[d] Liberty is reserved in favour of the respondent/decree holder to file his rejoinder/reply to the statement of objections as well as other appropriate application[s] which shall be considered by the executing Court in accordance with law.

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[e] Liberty is also reserved in favour of the parties to submit documents, pleadings etc., in support of their respective claims.

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[f] In view of disposal of this petition, all pending applications do not survive and are accordingly disposed off.

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NC: 2024:KHC:1470 WP No. 1422 of 2023

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[g] Liberty is reserved in favour of the impleading applicant to take recourse to such remedies as available in law.

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[h] The executing Court is directed to conclude the execution proceedings within six months from 22.01.2024.

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[i] All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.

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SD/JUDGE

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AN/-

Smt Sharfunissa v. Touffeq Ahmed

Case brief

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Smt Sharfunissa v. Touffeq Ahmed

Case brief

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