Smt. Jayashree Dead by Her Lrs Sri Acharya Aravind Vs Smt. Dhanalakshmi

BOTH ARE RESIDING AT: NO.804/A, FIRST FLOOR, 9^TH MAIN ROAD, 3^RD STAGE, 3^RD BLOCK, BASAVESHWARANAGAR, BENGALURU – 560 079. (DECREE HOLDER IN EXECUTION NO.2706 OF 2018).

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…PETITIONERS

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(BY SRI. G.PAPIREDDY, SENIOR COUNSEL FOR SMT. SWETHA G. DESHPANDE, ADVOCATE)

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HC-KAR

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AND:

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SMT. DHANALAKSHMI, AGED ABOUT 60 YEARS, R/A NO.E-93, SECOND MAIN ROAD, RAMACHANDRAPURAM, BENGALURU – 560 021. (JUDGMENT DEBTOR IN EXECUTION NO.2706 OF 2018)

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…RESPONDENT

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(RESPONDENT SERVED - UNREPRESENTED)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 06.03.2020 PASSED BY THE COURT OF XII ADDL. CITY CIVIL JUDGE AT BENGALURU CITY (CCH NO.27) ON IA-I IN EXECUTION NO.2706 OF 2018 VIDE ANNEXURE – G AND ETC.

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

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CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

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ORAL ORDER

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Heard Sri. G. Papireddy, learned Senior counsel, appearing for the petitioners and have perused the material on record.

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HC-KAR

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The petitioners are decree holders. They are before

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this Court in the subject petition calling in question an order passed by the Executing Court on 06.03.2020 on an application filed by the respondent-judgment debtor seeking appointment of a Court Commissioner to redo the entire exercise, which lead to the passage of the decree.

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Learned counsel for the respondent-judgment

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debtor is served on 28.03.2021 and 4 years have passed by, is not represented before this Court.

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Learned counsel appearing for the petitioners submits that the plaintiffs had instituted a suit in O.S.No.4771/2008 seeking declaration that they are the absolute owners of the suit schedule property and further direction to the defendant to handover vacant possession of the property. Pursuant to seeking execution of the decree, the petitioners-decree holders file execution in Ex.No.2706/2018. Before the concerned Court, an application is filed under Order XXVI Rule 9 of the CPC for appointment of a

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Court Commissioner to secure a report with regard to the suit

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HC-KAR

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schedule property all over again, notwithstanding the same exercise being done at the time of the

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The concerned Court, has passed the following order:

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"7. The present execution is filed to enforce the judgment and decree passed by this Court in O.S.No.4771/2008 dated 20-9-2016. Wherein this court has decreed the suit and declared that plaintiff is the absolute owner of the property and defendant is directed to handover the vacant possession of the suit schedule property to the plaintiff within 6 months from the date of judgment. The property covered under the said judgment is "all that pice and parcel of property bearing present Municpal No.42 (old Kaneshumari No.115) situated at present 2^nd main road, Ramachanrapuram, Bangalore-21, Old Ramachandrapuram extension, Kethamaranahalli Dhakle, Yeshwanthpura Hobli, Bangalore North taluk, Bangalore, measuring east to west 30 feet and north to south 10 feet 3 inches and bounded on the ; east by:remaining portion of the property No.42/A, old No.115, belonging to Smt.Kamalamma, west by:- Conservancy Lane, North by:- property belonging to Smt.Ambikavathi and south by:private property of Minerva Mill compound". The judgment debtor contends that, the execution petition schedule property is entirely different and she contends that she is in possession of the property bearing Sy.No.155/1 with BBMP Khatha No.42/2 measuring East to west 60 feet, north to south on the eastern side 13 feet, in middle 15 feet, on the western side 15 feet. Her property bounded on East:- by:-2^nd main road, West by:- conservancy road, Northy by:- site No.65and house therein, South by:-private property of Minavatapalli, with a Mangalore tile roofed house. On comparison of the petition schedule property and also the property mentioned in her affidavit it clearly goes to show that, the both properties are different at the same time the JDR contends that the decree holder trying to take the possession of the property in her possession on the guise of the decree. For complete adjudication of the property regarding identity I am of the opinion that, if the court commissioner is appointed to note down whether the judgment debtor is in possession of the petition schedule

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HC-KAR

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property or the property as contended by her, then it will meet the ends of justice. If the application is allowed no prejudice will cause to DHR, on the other hand if not allowed definitely JDR will put to untold hardship and inconvenience. Hence I proceed to pass the following;

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ORDER

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I.A.No.1 is filed under Order 21 Rule 35 read with Order 26 Rule 9 of CPC is allowed."

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A perusal at the reason so rendered by the concerned Court would undoubtedly mean that the concerned Court in the execution proceedings has put the clock back to the proceedings in the original suit of the year 2008 that on an application filed by the judgment debtor under Order XXVI Rule 9 of the CPC.

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As contended by the learned counsel appearing for the petitioner, the application should not have warranted consideration, as that exercise has already been done at the time of answering O.S.No.4771/2008 in terms of the judgment and decree dated 20.10.2016, to which, the respondent was indeed a party and heard.

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