Allowed

Smt H v. Manju @ Manjula v Sri Patel Chikkammogegowda

Karnataka HC6 Mar 2024WP/1550/2024

Case brief

AI extract

What is this about?

Third-party objectors (daughters of the judgment debtor) challenged issuance of a delivery warrant in execution of a specific performance decree while their applications under Order XXI Rules 97, 98, 101 and Section 151 CPC were pending. The High Court set aside the warrant order and directed the Executing Court to decide those applications expeditiously.

What did the court decide?

Delivery warrant order dated 11.12.2023 set aside; Executing Court directed to decide objectors' applications per law, expeditiously.

Smt H v Manju @ Manjula Vs Sri Patel… — Execution and Attachment | Karnataka HC (2024)

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1 - NC: 2024:KHC:9312 WP No. 1550 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION No. 1550 OF 2024 (GM-CPC)

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BETWEEN:

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SMT. H V MANJU @ MANJULA D/O H M VEERAIAH AGED ABOUT 38 YEARS.

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SMT. H V SOWMYA D/O H M VEERAIAH AGED ABOUT 35 YEARS.

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SMT. H V SHRUTHI D/O H M VEERAIAH AGED ABOUT 33 YEARS.

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ALL ARE R/AT HITTANAHALLI KOPLU VILLAGE KIRGAVALU HOBLI MALAVALLI TALUK MANDYA DISTRICT – 571 424.

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…PETITIONERS

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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(BY SRI H J ANANDA, ADVOCATE)

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AND:

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SRI PATEL CHIKKAMMOGEGOWDA S/O LATE KEMPEGOWDA AGED ABOUT 83 YEARS HITTANAHALLI KOPLU VILLAGE KIRGAVALU HOBLI MALAVALLI TALUK MANDYA DISTRICT - 571 424.

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SRI H M VEERAIAH S/O LATE H MANCHAIAH AGED ABOUT 68 YEARS HITTANAHALLI KOPLU VILLAGE KIRGAVALU HOBLI

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NC: 2024:KHC:9312 WP No. 1550 of 2024

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MALAVALLI TALUK MANDYA DISTRICT - 571 424.

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…RESPONDENTS

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(BY SRI. P NATARAJU, ADVOCATE FOR R1 R2 IS SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSITITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 11/12/2023 PASSED BY THE COURT OF THE 1^ST ADDITIONAL CIVIL JUDGE AND JMFC, MALAVALLI IN EX. NO. 104/2015 VIDE ANNEXURE-A.

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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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This petition by the third party objectors in Execution Case No. 104/2015 on the file of I Additional Civil Judge and JMFC, Malavalli is directed against the impugned order dated 11.12.2023 whereby the Executing Court directed delivery warrant in favour of respondent No. 1 – decree holder.

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A perusal of the material on record will indicate that respondent No. 1 – decree holder instituted the suit in O.S. No. 288/2011 for specific performance and other reliefs against respondent No. 2 – judgment debtor in relation to suit schedule immovable property. The said suit was decreed in favour of respondent No.1 – decree holder by the Executing Court vide judgment and decree dated 30.08.2013.

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NC: 2024:KHC:9312 WP No. 1550 of 2024

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Aggrieved by the same, respondent No.2 – judgment debtor filed an appeal in R.A. No. 47/2014 which was dismissed by the first appellate Court by judgment and decree dated 22.07.2017. Aggrieved by the said judgment and decree passed by the Executing Court and first appellate Court, respondent No.2 – judgment debtor preferred an appeal in R.S.A. No. 1846/2017 which was dismissed by this Court vide judgment and decree dated 15.11.2017 thereby confirming the said judgments and decrees passed by the Executing Court and the first appellate Court.

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Meanwhile, in the instant execution proceedings, petitioners who are none other than the daughters of judgment debtor – Sri. H.M. Veeraiah filed an application under Order XXI Rules 97, 98 and 101 of CPC on 12.01.2024 as well as an application under Section 151 of CPC. It is the grievance of the petitioners that despite the said applications being pending consideration, the Executing Court has proceeded to pass the impugned order directing issuance of delivery warrant and as such, petitioners are before this Court by way of the present petition.

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NC: 2024:KHC:9312 WP No. 1550 of 2024

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A perusal of the aforesaid material on record would indicate that respondent No. 1 – decree holder has not filed any objections to the applications filed by the petitioners – third party objectors which would necessarily have to be decided by the Executing Court in accordance with law. Under these circumstances, without considering and passing orders on the applications filed by the petitioners under Order XXVII Rules 97, 98 and 101 of CPC on 12.01.2024 as well as application under Section 151 of CPC, the Executing Court clearly committed an error in directing issuance of delivery warrant by passing the impugned order which deserves to be set aside and Executing Court be directed to consider and pass appropriate orders on the applications filed by the petitioners in accordance with law.

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In the result, the following;

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O R D E R

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a. Petition is allowed.

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b. The impugned order dated 11.12.2023 passed in Executing Court insofar as it relates to directing issuance of delivery warrant in favour of the decree holder is hereby set aside.

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5 - NC: 2024:KHC:9312 WP No. 1550 of 2024

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c. The Executing Court is directed to consider and pass appropriate orders on the applications filed by the petitioners under Order XXVII Rules 97, 98 and 101 of CPC on 12.01.2024 as well as the application under Section 151 of CPC after providing an opportunity to both the parties and in accordance with law.

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d. Since the execution proceedings arise out of the suit of the year 2011, I deem to just and appropriate to exercise my jurisdiction under Article 227 of the Constitution of India and direct the Executing Court to dispose off the applications as expeditiously as possible.

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Sd/JUDGE

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LRS

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List No.: 1 Sl No.: 40

Smt H v. Manju @ Manjula v Sri Patel Chikkammogegowda

Case brief

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Smt H v. Manju @ Manjula v Sri Patel Chikkammogegowda

Case brief

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