Allowed

Smt Gowramma v. Sri R Ravikumar

Karnataka HC11 Mar 2024WP/336/2024

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition challenging an order appointing a court commissioner without a draft sale deed in execution proceedings. Relying on precedent, the Court held the order procedurally flawed and set it aside, remitting the matter to the executing court with liberty to furnish the draft sale deed subsequently.

What did the court decide?

The impugned orders appointing a commissioner and issuing a warrant were set aside. The matter was remitted to the executing court with liberty to furnish the draft sale deed.

Smt Gowramma Vs Sri R Ravikumar — Execution and Attachment | Karnataka HC (2024)

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1 - NC: 2024:KHC:9823 WP No. 336 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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WRIT PETITION No.336 OF 2024 (GM-CPC)

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BETWEEN:

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SMT. GOWRAMMA, W/O LATE K. NAGARAJU, AGED ABOUT 62 YEARS,

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N. RAGHAVENDRA S/O LATE K. NAGARAJU, AGED ABOUT 42 YEARS,

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SMT. RANJITHA D/O LATE K. NAGARAJU, AGED ABOUT 34 YEARS,

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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ALL R/AT 4^TH SHOP LANE, TATA SILK FARM, BASAVANAGUDI , BENGALURU- 560 004.

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(BY SRI ANIL KUMAR R., ADVOCATE)

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…PETITIONERS

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AND:

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SRI R. RAVIKUMAR, S/O K. M. RAMA REDDY, AGED ABOUT 64 YEARS, R/AT No.18, 7^TH CROSS, 30^th MAIN ROAD, BSK III STAGE, BENGALURU 560 085.

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…RESPONDENT

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(BY SRI. M. S. NAGARAJA., ADVOCATE)

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2 - NC: 2024:KHC:9823 WP No. 336 of 2024

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 12/12/2023 IN EXECUTION PETITION No. 2474/2022 PASSED BY THE 40^TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH 41) BENGALURU ANNEXURE-A ON I.A. No.2 ALLOWING THE APPLICATION FILED BY THE RESPONDENT (DECREE HOLDER) SEEKING APPOINTMENT OF COURT COMMISSIONER AND ALSO THE ORDER DATED 18/12/2023 IN EXECUTION PETITION BEARING E.P. No.2474/2022 PASSED BY THE 40^TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH 41) BENGALURU, ANNEXURE-A.

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

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ORDER

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This petition is directed against the impugned Order dated 12.12.2023 passed in E.P.No.2474/2022 by the XL Additional City Civil and Sessions Judge (CCH-41), Bengaluru, whereby, allowing the application I.A.No.2 filed by the respondent/decree holder seeking appointment of Court Commissioner to execute the sale deed, so also, the Order dated 18.12.2023 issuing Commissioner warrant by the Executing Court.

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A perusal of the material on record will indicate that respondent/ decree holder instituted the instant execution proceedings to implement and enforce the judgment and

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3 - NC: 2024:KHC:9823 WP No. 336 of 2024

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decree dated 17.10.2022 passed in O.S.No.586/2015, whereby, the Trial Court directed the petitioners/ judgment debtors to execute the sale deed in favour of the respondent/decree holder.

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It is the grievance of the petitioners/ judgment debtors that respondent/decree holder had not furnished the draft sale deed before the Executing Court as contemplated under Order XXI Rule 34 of the Code of Civil Procedure and as such the Trial Court having not followed the procedure contemplated under the said provisions, the impugned Order suffers from procedural illegality and patent infirmity warranting interference in the present petition, as held by the Hon’ble Apex Court in the case of Rajbir vs. Suraj Bhan & anr passed in Civil Appeal No.1700/2022 dated 28.02.2022.

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It is therefore submitted that the impugned Order passed by the Trial Court deserves to be set-aside and respondent/ decree holder as well as Executing Court be directed to follow the mandatory procedure prescribed under Order XXI Rule 34 of the Code of Civil Procedure.

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NC: 2024:KHC:9823 WP No. 336 of 2024

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Per contra, learned counsel for the respondent/ decree holder submits that in the execution proceedings which presently stands posted on 27^th March 2024, the respondent/ decree holder would furnish the draft sale deed before the Trial Court, who may be directed to follow the prescribed procedure and proceed further in accordance with law.

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In view of the aforesaid facts and circumstances of the case and the undisputed fact that respondent/decree holder had not furnished the draft sale deed before the Executing Court as required under Order XXI Rule 34 of the Code of Civil Procedure, I am of the considered opinion that the impugned order passed by the Trial Court deserves to be set-aside and the matter remitted to the Executing Court, by issuing certain directions.

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7. According, the following:

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ORDER

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(i) The petition is hereby allowed .

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(ii) The impugned Order dated 12.12.2023 passed in E.P.No.2474/2022 by the XL Additional City Civil and Sessions Judge (CCH-41), Bengaluru,

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NC: 2024:KHC:9823 WP No. 336 of 2024

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and the Order dated 18.12.2023 issuing Commissioner warrant by the Executing Court are hereby set-aside .

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(iii) The matter is remitted to the Executing Court for reconsideration afresh, in accordance with law.

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(iv) Liberty is reserved in favour of the respondent/ decree holder to furnish the draft sale deed before the Executing Court on the next date of hearing and also serve a copy to the petitioners/judgment debtors, so as to enable the Executing Court to proceed further in accordance with the provisions of Order XXI Rule 34 of the Code of Civil Procedure.

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Sd/JUDGE

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kcm

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List No.: 1 Sl No.: 42

Smt Gowramma v. Sri R Ravikumar

Case brief

What is this about?

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Smt Gowramma v. Sri R Ravikumar

Case brief

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