Dismissed¶107-108

Mr J R Mundkur v. Sri Veerendra Kathuria

Execution – Order 21 Rule 34 CPC

Karnataka HC1 Jul 2025MSA/123/2023

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Case brief

AI extract

What is this about?

Keywords: Order 21 Rule 34 CPC; Order 26 Rule 9 CPC; Section 47 CPC; Order XLIII Rule (i) and (u) CPC; execution petition; draft sale deed; objections by judgment debtor (JDr); commissioner warrant; paper publication / substituted service; ex parte order set aside; opportunity to file statement of objections; subsequent purchaser objector; remand by First Appellate Court; R.A.No.5024/2018; Ex.P.No.13/2014; MSA No.123 of 2023; dismissal with costs Rs.25,000; H Anjanappa v. A Prabhakar (2025 SCC Online SC 183); P K Palanisamy v. N Anumugham ((2009) 9 SCC 173); Periyammal v. V Rajamani (2025 SCC Online SC 507).

What did the court decide?

Appeal dismissed with cost of Rs.25,000/- payable within two weeks; if the cost is not paid, it is to be recovered in accordance with law. ¶107-108

Mr J R Mundkur Vs Sri Veerendra Kathuria — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Appeal dismissed with cost of Rs.25,000/- payable within two weeks; if the cost is not paid, it is to be recovered in accordance with law.

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Issue for consideration

Whether the First Appellate Court committed an error in answering Point No.1 as negative, i.e., in concluding that the procedure was not followed by the Trial Court in the execution petition? +2 more

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Court's answer

Giving the JDr an opportunity to file objections is the bounden duty of the executing Court, irrespective of whether the objections are correct; here, although the JDr's ex parte order was set aside and time was sought to file objections to the main petition, no such opportunity was given.

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Ratio / Principle

On perusal of the entire order sheet, this Court found no date given by the Trial Court to file the statement of objections; hence the First Appellate Court's conclusion that the procedure under Order 21 Rule 34 CPC was not followed stands.

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Key takeaways

There is no error in the First Appellate Court's order remanding the matter to the Trial Court to strictly follow Order 21 Rule 34 CPC; the contention that the executing Court complied with the procedure cannot be accepted, and the appellants' contention carries no force.ratio¶95
Inordinate delay in getting the decree executed does not mean the procedure under Order 21 Rule 34 CPC — which provides for giving the JDr an opportunity in the execution petition and deciding the same on merits — need not be followed; the Periyammal judgment therefore does not aid the appellants.ratio¶98

Detailed headnote1 paragraphs

Execution – Order 21 Rule 34 CPC – service of draft of documents to be executed on the judgment-debtor with notice of objections is mandatory. The JDr's ex parte order in the execution petition was set aside on his application; his advocate sought time to file objections to the main petition, but the executing Court issued a commissioner warrant the very same day without fixing any date for objections. Giving the JDr an opportunity to object is the executing Court's bounden duty irrespective of the merits of the objections; the First Appellate Court therefore rightly set aside the execution order (Ex.P.No.13/2014 dated 05.04.2018) and remanded the matter to the Senior Civil Judge, Anekal to strictly follow Order 21 Rule 34 CPC. Inordinate delay in initiating/prosecuting execution does not dispense with the prescribed procedure (Periyammal, 2025 SCC Online SC 507, and P K Palanisamy, (2009) 9 SCC 173, distinguished; H Anjanappa, 2025 SCC Online SC 183, referred). Miscellaneous Second Appeal by subsequent purchasers/objectors from the Dhr dismissed with cost of Rs.25,000/-, payable within two weeks, else recoverable in accordance with law.

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1 - NC: 2025:KHC:23362 MSA No. 123 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF JULY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS SECOND APPEAL NO.123 OF 2023 (RO)

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BETWEEN:

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MR J R MUNDKUR S/O SRI RAMESH A MUNDKUR, AGED ABOUT 70 YEARS,

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MRS LAXMI J MUNDKUR W/O MR J R MUNDKUR, AGED ABOUT 69 YEARS, BOTH RESIDENT AT No.871, 12^TH MAIN, 3^RD BLOCK, KORAMANGALA, BENGALURU - 560034 REP. BY GPA HOLDER MRS DEVYANI DCRUZ

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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MR AMIT KUMAR GUPTA S/O SRI RAM KISHAN GUPTA, AGED ABOUT 59 YEARS,

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MRS ALKA AGRAWAL W/O OF MR AMIT KUMAR GUPTA, AGED ABOUT 58 YEARS, BOTH ARE RESIDENT AT F302, VICTORIAN HAVEN APARTMENTS, DOMLUR LAYOUT, BENGALURU - 560071

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(BY MRS. RADHA JAYANTHI C S, ADVOCATE)

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…APPELLANTS

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HC-KAR

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AND:

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SRI VEERENDRA KATHURIA S/O CAPT. PRANANATH KATHYRIA, AGED ABOUT 77 YEARS, R/AT 90/75, SOMPURA VILLAGE, B HOSAHALLI ROAD, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE DISTRICT

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SRI M LINGAPPA S/O MUNIYAPPA, AGED ABOUT 65 YEARS, R/AT VIDYANAGAR, SARJAPUR HOBLI, ANEKAL TALUK, BANGALORE DISTRICT

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…RESPONDENTS

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(BY SRI R. RANGASWAMY, ADVOCATE FOR R1; SRI A N GANGADHARAIAH, ADVOCATE FOR R2)

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THIS MSA IS FILED UNDER ORDER XLIII RULE (i) AND (u) OF CPC., AGAINST THE ORDER DATED 05.04.2019 PASSED IN R.A NO.5024/2018 ON THE FILE OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, SITTING AT ANEKAL AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the learned

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counsel appearing for the respective parties.

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HC-KAR

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This appeal is filed against the order passed by

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the First Appellate Court in R.A.No.5024/2018 wherein the First Appellate Court comes to the conclusion that the Trial Court has not followed the procedure in dealing with the execution petition by answering Point No.1 as negative holding that no procedure is followed as contemplated under Order 21 Rule 34 both oral and documentary evidence placed on record CPC and answered point No.2 as affirmative in coming to the conclusion that order impugned requires interference. The First Appellate Court while passing such order, extracted the provision of Order 21 Rule 34 of CPC and even discussed in paragraph 16 that when the JDr appears and filed an application for setting aside placing him as expart, the said order was set aside vide order dated 04.04.2018 and the further a prayer sought to grant time to file objection to the main petition was not considered and the Trial Court issued commissioner warrant on the very same day. In paragraph 17 discussed that there is a clear violation of provision of

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Order 21 Rule 34 of CPC wherein the said provision mandates the Dhr to prepare a draft of the documents to be executed in his favour and deliver the same to the Court and the Court shall thereby cause the draft to be served to the JDr together with notice requiring his objections if any to be made. The First Appellate Court having considered the same, in paragraph 18, discussed the provision of Order 21 Rule 34 of CPC and even discussed Section 47 of CPC and comes to the conclusion that the provision of Section 47 is general in nature and the provision of objecting the draft sale deed is particularly in the said provision itself. Therefore, when the JDr appears in the execution proceedings, he should be give an opportunity to file his objections not only to the draft sale deed but also to the main petition. In the present case, when the JDr appears and seeks time to file the statement of objections, no opportunity was given and also made an observation that the DHr has deposited the balance sale consideration in the year 1996 itself and RFA

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was disposed of in 2007 itself, why he kept quite till 2014

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and also taken note of the fact that there is a delay in filing the execution petition. Having considered all these material on record, the First Appellate Court set aside the order of the Trial Court passed in Ex.P.No.13/2014 dated 05.04.2018 and matter was remitted back to the Senior Civil Judge, Anekal to give an opportunity to oppose the execution proceedings as well as draft sale deed to the appellant/JDr as required under Order 21 Rule 34 of CPC and directed the Trial Court to follow strictly the provisions of Order 21 Rule 34 of CPC and the parties are directed to appear before the Trial Court on 07.06.2019.

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This order is challenged by the subsequent purchaser of the property which is the subject matter in the judgment and decree and in the execution Court proceedings and he being an objector, filed the application seeking leave of this Court to prosecute the appeal and this Court having considered the grounds urged in

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HC-KAR

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I.A.No.1/2025, permitted to file this appeal by separate order.

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The learned counsel for the appellants would vehemently contend that the very order passed by the First Appellate Court in R.A.No.5024/2018 is erroneous. The counsel submits that when opportunity was given when he comes before the Court, he did not avail the opportunity to file the statement of objections. The counsel also would vehemently contend that the executing Court has given an opportunity to the JDr to file the statement of objections but he did not file the same. The counsel would vehemently contend that even copy of the draft sale deed is also furnished and objection to the said draft sale deed also not filed and he kept quiet and hence, he cannot contend that no opportunity was given to him to file the statement of objections. The counsel also brought to notice of this Court the entire order sheet of the executing Court. On perusal of order sheet, the counsel would vehemently contend that when he come up with an

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application, an order was passed to set aside the exparte order by allowing I.A.No.2 and also order sheet discloses that advocate Sri K.P. who appears for Jdr prays time to file objection to the main petition but on the very same day, office issued commissioner warrant as per order dated 21.10.2017 and ordered to list the matter on 05.04.2018. Thus, nowhere in the order sheet it discloses that opportunity was given when time was sought to file objection to the main petition and even nothing is discussed in the order sheet except closure of the execution petition after satisfying the same but no such procedure was followed. The counsel further brought to notice of this Court that when JDr appeared through an advocate, ought to have filed the statement objection to the main petition, but not filed.

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The counsel in support of her arguments relied upon the judgment reported in 2025 SCC ONLINE SC 183 in the case of H ANJANAPPA AND OTHERS vs A PRABHAKAR AND OTHERS and the counsel referring this

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judgment would vehemently contend that this judgment is with regard to transferee pendente lite .

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The counsel also relied upon the judgment reported in (2009) 9 SCC 173 in the case of P K PALANISAMY vs N ANUMUGHAM AND ANOTHER and the counsel referring this judgment would vehemently contend that this judgment is with regard to provision of law invoked before the executing Court for appointment of commissioner invoking of Order 26 Rule 9 of CPC and the counsel also brought to notice of this Court paragraphs 26 and 27 wherein the Apex Court held that invoking of wrong provision is not a ground and Court has to take note of the prayer what has been sought.

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The counsel also relied upon the judgment reported in 2025 SCC ONLINE SC 507 in the case of

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PERIYAMMAL (DEAD) THROUGH LRS AND OTHERS vs

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V RAJAMANI AND ANOTHER and brought to notice of

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this Court wherein discussion was made with regard to the

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delay and the Court has to take note of cause of anxiety and concern of various authorities, legislators and Courts. How to eliminate such a long consuming justice, we must confess that we have still to go a long way before true satisfaction in this regard is received. Even after one reaches the stage of final decree, he has to undergo a long distance by passing through the ordained procedure in the execution proceedings before he receives the bowl of justice.

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The counsel referring these judgments would vehemently contend that many decades has been elapsed by approaching the Court and decree also passed and same was confirmed and execution petition was filed and in the execution petition, inspite of an opportunity was given, not filed any objections. Hence, question of remanding the matter for fresh consideration as directed by the First Appellate Court is not warranted and hence, it requires interference of this Court.

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Per contra, the learned counsel appearing for respondent No.1 submits that when JDr appears through counsel and he did not choose to file any objections to the main petition and hence, executing Court proceeded to issue warrant and sale deed was executed.

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The counsel who appears for respondent No.2 would vehemently contend that the First Appellate Court having considered the material on record particularly the order sheet which clearly discloses that no notice was issued through the Court and though notice was issued through the Court and RPAD, same was not returned and managed the stages and immediately filed an application for paper publication and same was allowed and paper publication was produced before the executing Court and he was placed exparte. When JDr came to know that he was placed exparte, he immediately engaged the advocate and prayed the Court to set aside the exparte order and same was allowed and time was sought to file statement of objections to the main petition but the executing Court

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has not given any opportunity to file the statement of objections and not stated anything in the order sheet and issued the commissioner warrant without giving an opportunity and the same has been challenged before the First Appellate Court in filing an appeal and the First Appellate Court having considered both oral and documentary evidence placed on record given the reasons whether the procedure has been followed or not and comes to the conclusion that no procedure was followed and accordingly answered point No.1 as negative and point No.2 as affirmative holding that the matter requires interference and in detail considered the factual aspects of the case in paragraphs 16 and 17 and even extracted the provision of Order 21 Rule 34 of CPC and passed the order directing the executing Court to give an opportunity, hence, the appellants cannot find fault with the order of the First Appellate Court. The counsel also would vehemently contend that the present appellants are subsequent purchasers and they comes before the Court

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as objectors but they have no locus to object the procedure which was not followed by the executing Court.

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Having heard the learned counsel appearing for the respective parties, the point that would arise for consideration of this appeal is:

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Whether the First Appellate Court committed an error in answering point No.1 as negative in coming to the conclusion that procedure was not followed by the Trial Court in the execution petition?

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Whether the First Appellate Court committed an error remanding the matter to consider the same afresh regarding noncompliance of Order 21 Rule 34 of CPC and whether it requires interference of this Court?

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What order?

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Point Nos.1 and 2

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Having heard the learned counsel appearing for

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the respective parties and also on perusal of the material

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on record, it is not in dispute that present appellants are the subsequent purchasers from the DHr who got the sale deed. The main contention of the respondents that procedure is not followed in execution of the sale deed by the executing Court. The order of the Trial Court was challenged in R.A.No.5024/2018 stating that procedure was not followed. The First Appellate Court having considered both oral and documentary evidence placed on record, in paragraph 16 discussed with regard to the fact that an application was filed before the executing Court by the JDr to set aside the order of exparte since he was placed exparte and the said order was set aside but no opportunity was given to file statement of objections inspite of time was sought to file the objections to the main petition even though there is a reference in this regard but on the very same day, order was passed to issue commissioner warrant inspite of there was a reference in the order sheet that time was sought. It is the bounden duty of the executing Court to give an

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opportunity to the JDr to file the objections but no such opportunity was given. Even whether such objection is correct or not, that is immaterial, but the Court should give an opportunity. But the executing Court has not given time to file the objections and also not received any objections because no time was set out to file statement of objections but there was a reference of seeking time. Without giving an opportunity to the JDr, the order has been passed. Hence, the First Appellate Court in detail taken note of the entire order sheet which relied upon by the learned counsel appearing for the respective parties and this Court also does not find any date which was given to file statement of objections by the Trial Court.

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The counsel for the respondents convinced this Court that though exparte order was set aside, when time was sought, the same was not given to file the statement of objections by the executing Court instead of that an order was passed to issue commissioner warrant on the very same day. Hence, the very contention of the

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appellants’ counsel that executing Court has complied with the procedure as contemplated under Order 21 Rule 34 of CPC cannot be accepted. The record discloses that once execution petition was filed, notice issued through the Court as well as RPAD and same was not served and also there is no reference in the order sheet that whether the same was served or not and in the meanwhile, the DHr has filed an application for substituted service by way of paper publication and notice was published through the paper and he was placed exparte later on, when JDr appeared before the Court and sought time, no opportunity was given and without considering the objections of JDr, an order was passed for issuance of commissioner warrant and sale deed was executed. Hence, the First Appellate Court having considered the order sheet which has been discussed in paragraph 16 and also in paragraph 17 taken note of with regard to the issuance of draft sale deed and even extracted the provision of Order 21 Rule 34 of CPC and in paragraph 18

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discussed in detail even including Section 47 of CPC as contemplated with regard to dealing with the execution petition and having taken note of the fact that judgment of the Trial Court was passed in the year 1996 granting the relief but the same was disposed of in the appeal in the year 2007 and execution petition was not filed for a period of seven years and it was filed in 2014 and executing Court hurriedly passed the order without giving an opportunity to the JDr. When such material is available on record, I do not find any error in the order of the First Appellate Court in remanding the matter to follow the procedure strictly under Order 21 Rule 34 of CPC. When such being the case, I do not find any force in the contention of appellants’ counsel.

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No doubt, the appellants’ counsel relied upon the recent judgment in the case of PERIYAMMAL referred supra and this judgment will not comes to the aid of the appellants. No doubt, in this judgment discussed with regard to inordinate delay in getting the order executed

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initiating the execution petition but that doesn’t mean that not to follow the procedure as contemplated under Order 21 Rule 34 of CPC which provides that to give an opportunity to the JDr in the execution petition and decide the same on merits. But in the case on hand, no such opportunity was given. Hence, the very contention of the counsel for the appellants that other judgment in the case of P K PALANISAMY referred supra also applicable but the said judgment also not comes to the aid of the appellants’ since the same is not with regard to invoking of correct provisions in appointment of commissioner and whether appointment of commissioner is appointed under wrong provision is not the matter and here is a case of procedure irregularity and not following the procedure and without following the procedure passed an order. Hence, these judgments are also not comes to the aid of the appellants. Thus, I do not find any merit in this appeal to set aside the order passed by the First Appellate Court and the order impugned is challenged belatedly and the

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First Appellate Court while remanding the matter assigned the valid reason. The appellants are coming in the way of disposal of the matter and causing obstruction to proceed with the matter in accordance with law and hence, the appeal requires to be dismissed with cost. Hence, I answer the above points as negative.

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Point No.3

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