Dr. Lakshmikantha a Vs Mr. Ganesh Vishwanathan

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO- QUASH THE IMPUGNED ORDER BY ATTACHMENT ORDER OF THE SCHEDULE VEHICLES IN IA NO. 7 DATED 13.06.2025 AT ANNEXURE -D PASSED BY

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NC: 2025:KHC:51452 WP No. 18994 of 2025

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HC-KAR

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THE X ADDITIONAL CITY CIVIL AND SESSION JUDGE, BANGALORE (CCH-26) IN EX. CASE NO. 836/2025.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL ORDER

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Heard learned counsel Dr.S.Arumugham for the petitioner. Heard learned senior counsel Sri.Dhananjay Joshi on behalf of learned counsel Sri.Vachan.H.U for the respondent.

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The short point for consideration before this Court is the order passed by the trial Court on IA No.7 dated 13.06.2025 whereby the Learned Executing Court has allowed IA No.7 filed by the respondent/decree holder under Order 21 Rule 43 of the CPC to attach vehicles mentioned in the schedule to the said application, which is questioned herein by the learned counsel for the petitioner/JDR.

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HC-KAR

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It is the vehement contention of learned

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counsel for the petitioner/JDR that the properties that are now sought to be attached and ordered by the trial Court at the instance of the respondent/DHR are all movable vehicles in which there is a hypothecation and lien against the schedule item of vehicles with the concerned different banks/financial institutions, and the same cannot be fully settled. The document to that effect is also available in the Court record.

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It is also contended by the learned counsel for the petitioner/JDR that when there is a mortgage of a loan, the executing Court cannot issue the attachment warrant under order 41 Rule 23 under the Code of Civil Procedure. Hence, he contends that the attachment order issued is illegal and the same requires to be set aside, as it is null and void in view of the hypothecation and the lien with the concerned financing institutions. On these grounds, he seeks to set aside the order.

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HC-KAR

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Per contra, learned senior counsel

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Sri.Dhananjay Joshi appearing on behalf of learned counsel Sri.Vachan.H.U contends that the question involved here is with regard to the attachment of the movables, and it is at the instance of the respondent/DHR himself on filing the 'B' extract that the Court has agreed and allowed the application for attachment of movables for recovery of the said amount sought in the execution petition.

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It is also the contention of learned senior

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counsel that he has also filed the 'B' extract of each of the vehicles that is sought to be attached, which by itself is explicit and self-explanatory to the fact of hypothecation, which is provided in each of those documents with several finance limited companies on those movable properties. Therefore, learned senior counsel contends that merely because the movable properties are attached, they would not straight away be sold in auction. The trial Court would issue notice to the persons having a lien over the property

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HC-KAR

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and decide the matter in accordance with law

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subsequently.

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The submission of learned senior counsel is appealing, and it also has substance and it is also the law as contemplated under Section 60 of the CPC. In view of the application having been allowed and the 'B' extract forms already having been filed by the respondent/DHR, the vehicles are standing in the name of the petitioner/JDR and though there is a lien over the property on the finance companies mentioned therein each of those B Extracts, the trial Court would have to invariably issue notice to those persons or companies having a lien on those properties and proceed further thereafter in accordance with law at the appropriate stage if it is so warranted and if the lien still continues.

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Under the circumstances, the grievance of the petitioner/JDR is also addressed, as he is also inclined that the notice be issued to the concerned lien holders or persons or companies having hypothecation on the suit

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HC-KAR

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schedule item of properties to be notified before further steps are taken against those vehicles if they are for sale or auction.

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I am in agreement with both the learned

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counsels that the procedure to be followed is what is observed herein above. Accordingly, I pass the following order.

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ORDER

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The petition is disposed of.

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I do not find any reason to interfere with the

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impugned order passed by the trial Court.

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However, it is needless to mention that the trial Court shall follow the proper procedures and the observations made herein and issue notice if required at the relevant stage and, if need be, issue notice to the parties who have lien and the hypothecation on the properties movables that are sought to be attached and if at all sold in auction.

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