Partly allowed

Smt. Haseen Fathima v. Mr. Sanjay Prabhu

Karnataka HC19 Mar 2024WP/800/2024

Case brief

AI extract

What is this about?

This writ petition challenged an executive court order directing issuance of a delivery warrant against a judgment debtor. The High Court held that since the compromise decree did not provide for eviction, the execution court erred in issuing a delivery warrant and set aside the order, remitting the matter for fresh consideration.

What did the court decide?

Impugned order set aside; matter remitted to Executing Court for fresh consideration after permitting parties to file calculation memos.

Smt. Haseen Fathima Vs Mr. Sanjay Prabhu — Execution and Attachment | Karnataka HC (2024)

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NC: 2024:KHC:11697 WP No. 800 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^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.800 OF 2024 (GM-CPC)

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BETWEEN:

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SMT. HASEEN FATHIMA W/O. AMEEN KHAN, AGED ABOUT 33 YEARS, OCCUPATION: HOUSE WIFE, R/AT FLAT NO.A013, 1^ST FLOOR, ‘SHOBA MANGNOLIA’, NO.53/2, OPP. JALABHAVAN, 1^ST MAIN, GURAPPANAPALYA, BANNERGHATTA ROAD, BENGALURU-560 029.

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…PETITIONER

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(BY SRI. MANJUNATHA S.V., ADVOCATE)

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AND:

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SANJAY PRABHU

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SINCE DEAD BY HIS HEIRS

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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MRS. ASHA PRABHU W/O. LATE SANJAY PRABHU, AGED ABOUT 54 YEARS,

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MS. SUSHANTI PRABHU D/O. LATE SANJAY PRABHU, AGED ABOUT 29 YEARS,

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BOTH ARE R/AT NO.A3201, ZINITH RESIDENCES, LARLE TOWN CENTRE, 100 FEET ROAD, KEMPAPURA MAIN ROAD, NEXT TO NAGAVARA LAKE, NAGAVARA, BENGALURU-560 045.

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…RESPONDENTS

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(BY SRI. RAVI SHANKAR C.S., ADVOCATE)

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NC: 2024:KHC:11697 WP No. 800 of 2024

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 21/12/2023 PASSED BY THE LV ADDL. CITY CIVIL AND SESSION JUDGE (CCH-56) BENGALURU IN EXECUTION NO.1962/2021, ALLOWING THE IA NO. 2 FILED UNDER SECTION 151 OF CPC VIDE ANNEXURE-A AND PASS APPROPRIATE ORDERS.

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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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This petition by the judgment debtor in Ex.No.1962/2021 is directed against the impugned order dated 21.12.2023 whereby the Executing Court directed issuance of delivery warrant as against the petitioner.

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2. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record

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3. A perusal of the material on record will indicate that respondent – decree holder has instituted the aforesaid Execution proceedings to enforce, implement and execute the Compromise Decree dated 24.12.2020 passed between the petitioner and respondent. As per the Compromise Decree, the petitioner undertook to pay the amounts mentioned in the Compromise Petition in favour of the respondent – decree holder. It is the grievance of the petitioner that though the Compromise Decree whish is sought to be enforced, implemented and executed does

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3 - NC: 2024:KHC:11697 WP No. 800 of 2024

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not contemplate that the petitioner would be liable to be vacated from the suit schedule property, the Executing Court completely erred in directing issuance of delivery warrant for non-compliance of the Compromise Decree, aggrieved by which the petitioner is before this Court by way of the present petition.

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4. Per contra, learned counsel for the respondents has filed a memo of calculation indicating that the petitioner having not paid arrears of rent in a sum of Rs.16,48,520/- upto 29.02.2024 is not entitled to continue to remain in occupation and that the petitioner is liable to quit and deliver vacant possession of the suit schedule premises to the respondent/s.

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5. Though several contentions have been urged by both sides as regards the rents / arrears of rent payable by the petitioner to the respondent/s and in relation to the alleged non-compliance of the terms and conditions of the Compromise Decree, a perusal of the Compromise Decree clearly indicates that there is no decree for eviction in favour of the respondent/s against the petitioner. Under these circumstances, the Trial Court clearly fell in error in directing issuance of delivery warrant in favour of the respondent/s against the petitioner and consequently, the impugned order

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NC: 2024:KHC:11697 WP No. 800 of 2024

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passed by the Executing Court deserves to be set aside and the matter remitted back to the Executing Court for reconsideration afresh after permitting both sides to file their respective memo of calculation.

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6. In the result, I pass 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 21.12.2023 passed in Ex.No.1962/2021 by the Executing Court is hereby set aside.

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(iii) Matter is remitted back to the Executing Court for reconsideration of the Execution proceedings afresh as regards alleged arrears of rent payable by the petitioner to the respondent/s and also regarding alleged non-compliance of the terms and conditions of the Compromise Decree by the petitioner.

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(iv) The Trial Court is directed to permit both sides to file their respective memos of calculation, pleadings, documents, etc., and proceed further in accordance with law.

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NC: 2024:KHC:11697 WP No. 800 of 2024

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(v) It is needless to state that respondent/s would be

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entitled to request the Trial Court to execute the decree by other modes viz., attachment, civil prison, etc., in accordance

with law.

Sd/JUDGE

List No.: 1 Sl No.: 73

Smt. Haseen Fathima v. Mr. Sanjay Prabhu

Case brief

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What did the court decide?

Smt. Haseen Fathima v. Mr. Sanjay Prabhu

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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