Allowed

Sri Syed Akram Raza v. Sri P Suhail Ullakhan

Karnataka HC20 Jun 2024WP/5774/2018

Case brief

AI extract

What is this about?

The High Court set aside an execution court order directing registration of a sale deed because the court had failed to adjudicate the objector's petition under Order 21 Rule 97 CPC. The court directed the execution court to decide the dispute expeditiously within six months.

What did the court decide?

Impugned order dated 29.01.2018 set aside. Court below directed to decide the dispute within six months.

Sri Syed Akram Raza Vs Sri P Suhail Ullakhan — Execution and Attachment | Karnataka HC (2024)

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NC: 2024:KHC:22015 WP No. 5774 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO.5774 OF 2018 (GM-CPC)

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BETWEEN:

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SRI SYED AKRAM RAZA S/O. LATE MIR RAHMAN ALI SINCE DEAD BY LRS

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1(a) SMT. SYEDA YASMEEN FATHIMA W/O. LATE SYED AKRAM RAZA AGED ABOUT 50 YEARS

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1(b) SRI SYED SAMEER RAZA S/O. LATE SYED AKRAM RAZA AGED ABOUT 46 YEARS

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1(c) SRI NAKEER RAZA SYED S/O. LATE SYED AKRAM RAZA AGED ABOUT 44 YEARS

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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1(d) SMT. HASNATH AHMED SYED D/O. LATE SYED AKRAM RAZA AGED ABOUT 40 YEARS

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ALL ARE R/AT ALIPURA THONDEBHAVI HOBLI GOWRIBIDANUR TALUK CHIKKABALLAPURA DISTRICT-561 213.

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…PETITIONERS

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(BY SRI H. R. ANANTHA KRISHNA MURTHY, ADVOCATE AND ALSO FOR BRINGING LR’S OF PETITIONER ON IA 1/2022 TO IA 3/2022)

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AND:

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SRI P. SUHAIL ULLAKHAN S/O. P. RAHAMATHULLA AGED ABOUT 53 YEARS R/AT LALAMATHOPU (TIPPUNAGAR)

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GOWRIBIDANUR TOWN CHICKBALLAPUR DISTRICT - 561 208.

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SRI AMIN KHAN DEAD BY LRS

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2(a) SRI SHAJAHAN S/O. LATE AMIN KHAN AGED ABOUT 52 YEARS R/AT ALKAPURA VILLAGE THONDEBHAVI HOBLI GOWRIBIDANUR TALUK CHICKBALLAPUR DISTRICT-561 208.

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2(b) SRI NOOR AHMED KHAN

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S/O. LATE AMIN KHAN

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AGED ABOUT 50 YEARS

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R/AT ALKAPURA VILLAGE

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THONDEBHAVI HOBLI

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GOWRIBIDANUR TALUK

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CHICKBALLAPUR DISTRICT-561 208.

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2(c) SRI AFZAL AHMED KHAN

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S/O. LATE AMIN KHAN

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AGED ABOUT 49 YEARS

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R/AT ALKAPURA VILLAGE

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THONDEBHAVI HOBLI

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GOWRIBIDANUR TALUK

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CHICKBALLAPUR DISTRICT-561 208.

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2(d) SRI SHOUKATH KHAN S/O. LATE AMIN KHAN AGED ABOUT 48 YEARS R/AT ALKAPURA VILLAGE THONDEBHAVI HOBLI GOWRIBIDANUR TALUK CHICKBALLAPUR DISTRICT-561 208.

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2(e) SMT. MUBEENA D/O. LATE AMIN KHAN AGED ABOUT 43 YEARS R/AT ALKAPURA VILLAGE THONDEBHAVI HOBLI GOWRIBIDANUR TALUK CHICKBALLAPUR DISTRICT-561 208.

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LATE T. S. MUKTHIYAR AHMED SINCE DEAD BY LRS

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3(a) SMT. KHURSHID UNNISSA W/O. LATE T. S. MUKTHIYAR AGED ABOUT 71 YEARS R/AT NO.1303, MADANAHALLI VILLAGE KASABA HOBLI, GOWRIBIDANUR TALUK CHICKBALLAPUR DISTRICT-561 208.

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3(b) SRI T. M. NASEER

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S/O. LATE T. S. MUKTHIYAR

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AGED ABOUT 49 YEARS

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R/AT NO.1303, MADANAHALLI VILLAGE KASABA HOBLI, GOWRIBIDANUR TALUK CHICKBALLAPUR DISTRICT-561 208.

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3(c) SRI T. M. MUSHAR AHMED

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S/O. LATE T. S. MUKTHIYAR

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AGED ABOUT 43 YEARS

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R/AT NO.1303, MADANAHALLI VILLAGE KASABA HOBLI, GOWRIBIDANUR TALUK CHICKBALLAPUR DISTRICT-561 208.

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3(d) SRI T. M. ASMA

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D/O. LATE T. S. MUKTHIYAR

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AGED ABOUT 41 YEARS

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R/AT NO.1303, MADANAHALLI VILLAGE KASABA HOBLI, GOWRIBIDANUR TALUK CHICKBALLAPUR DISTRICT-561 208.

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3(e) SMT. BABY

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D/O. LATE T. S. MUKTHIYAR

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AGED ABOUT 37 YEARS

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R/AT NO.1303, MADANAHALLI VILLAGE KASABA HOBLI, GOWRIBIDANUR TALUK CHICKBALLAPUR DISTRICT-561 208.

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MR. SHAIK HYDER SAB S/O. LATE SHAIK MOHIDDIN SAB R/AT VEERSHIVA VIDYARTHI NILAYAM C. DIVISION GOWRIBIDANUR TOWN - 561 208.

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SRI SYED ANJUM RAZA S/O. LATE MIR RAHMAN ALI

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AGED ABOUT 56 YEARS R/AT ALIPUR THONDEBHAVI HOBLI GOWRIBIDANUR TALUK CHICKBALLAPUR DISTRICT - 561 208.

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…RESPONDENTS

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(BY SMT.SUNITHA H. SINGH, ADVOCATE FOR R1; SRI.PATHAN RAHAMATHULLA, ADVOCATE FOR C/R1; R2(a)- DEAD; R2(b), R2(c), R2(d), R2(e) - ARE SERVED AND UNREPRESENTED; R3(b-e) AND R4 IS HELD SUFFICIENT V/O/D 7/12/2022 R2 (b-e) ARE TREATED AS LR’S OF DEAD R2(a) V/O/D 22/02/2022 R3(a), R5 ARE SERVED AND UNREPRESENTED)

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THIS W.P. FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED ON DTD 29.1.2018 PASSED BY THE LEARNED CIVIL JUDGE [SENIOR DIVISON] CHICKBALLAPUR, IN EX.NO.51/2010 IN DIRECTING REGISTRATION OF THE SALE DEED VIDE ANNEXURE-F.

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

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ORDER

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Aggrieved by the order passed in Ex.No.51/2010 dated 29.01.2018 by the Senior Civil Judge and JMFC, Gowribidanur, whereby the Court below had issued a commissioner warrant to execute the sale deed as per the order of the Court after making alteration of the draft sale deed, the petitioner is before this Court.

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The petitioner before this Court is the objector who filed the petition before the Court below under Order 21 Rule 97 of CPC.

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The facts of the case are that, according to the petitioner, he is an absolute owner of the land bearing survey No.38/1A-1 measuring 1 acre 15 guntas, including 9 guntas of karab and the land bearing Survey No.38/2 measuring 1 acre 21 guntas including 5 guntas of karab, situated at Alkapura village, Tondebavi Hobli, Gowribidanur Taluk, Chikkaballapura District, as the same was gifted by his brother. The petitioner came to know that a suit had been filed in O.S.No.69/1996 on the file of the Senior Civil Judge (SD) and CJM, Chikkaballapur. The said suit has been decreed and the property as per the decree is two acres and 12 guntas in Sy.No.38/2 situated at Alkapura Village, Thondebavi Hobli, Gawribidanur Taluk, Kolar District. Then the decree holder in O.S.No.69/1996 had filed Ex.No.51/2010 to execute the decree. At that point of time, the petitioner came to know that execution petition came to be filed in respect of his property which is not suit schedule property. Then he had filed petition under Order 21 Rule 97 of CPC and the same came to be allowed by the Court by order dated 04.04.2016. Against that order, the decree holder had filed WP.No.35364/2016 and initially an interim order has been

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granted and the same is pending consideration. It is submitted that at present, the said interim order is not in force. Now, after allowing the petition filed by the petitioner under Order 21 Rule 97 of CPC, it is the grievance of the petitioner that the present impugned order came to be passed by the Court below, whereby it has directed the sale deed to be executed in respect of the property which is belonging to the petitioner.

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Learned counsel appearing for the petitioner submits that when an application is filed under Order 21 Rule 97 of CPC and same is allowed, it is the bounden duty of the Court to adjudicate the said application and to pass appropriate orders. Now, having allowed his petition to implead and without adjudicating his case, the Court below had passed the order impugned. It is submitted that the order passed by the Court below is arbitrary, illegal and contrary to the purport of Order 21 Rule 97 of CPC and the same is liable to be set aside.

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Learned counsel appearing for respondent No.1 - decree holder submits that the said Sy.No.38/2 contains about 8 acres and 8 guntas and now, the sale deed to be executed is only 2 acres 12 guntas and even if the sale deed is executed in

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favour of the decree holder as directed by the Court below by way of impugned order, no prejudice will be caused to the petitioner. It is submitted after the decree as there was subdivision of the property those numbers were added and the said order is passed in the year 2013 and even till now that order is not questioned by the petitioner. It is submitted that though the decree holder had obtained the decree way back on 09.09.2010 till now, fruits of the decree could not be enjoyed by the decree holder. It is submitted that the present application that is filed is liable to be dismissed.

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Having heard the learned counsels on either side, perused the entire material on record. When the petitioner has filed a petition under Order 21 Rule 97 of CPC and the court has impleaded the petitioner, it is incumbent upon the Court below to decide the rights of the respective parties and basing on the same the Court below ought to have passed an order deciding the dispute. In this case, very strangely when he filed the petition to implead himself, the Court below had ordered it and thereafter, what is the claim of the objector to the property is not at all considered by the Court below and instead of doing

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it, the Court had passed an order directing the sale deed to be executed in favour of the decree holder. The Court below without doing any exercise, had passed the impugned order which is arbitrary, illegal and contrary to the purport of Order 21 Rule 97 of CPC accordingly, this Court is passing the following:

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ORDER

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i. Accordingly, the writ petition is allowed .

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ii. The impugned order dated 29.01.2018 in Ex.No.51/2010 passed by the Senior Civil Judge and JMFC, Gowribidanur, is set aside.

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iii. The Court below shall decide the dispute between the objector and his claim towards the property in execution and dispose off the same as expeditiously as possible, but not later that six months.

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iv. All pending IA’s if any shall stand closed.

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MEG

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List No.: 1 Sl No.: 16

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SD/JUDGE

Sri Syed Akram Raza v. Sri P Suhail Ullakhan

Case brief

What is this about?

What did the court decide?

Sri Syed Akram Raza v. Sri P Suhail Ullakhan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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