The Karnataka High Court allowed a writ petition filed under Article 227 of the Constitution of India, praying to quash the order dated 04/10/2023 passed by the Civil Judge and JMFC vide which the Executing Court posted the execution petition for inquiry. The Court observed that the Execution Court is expected to consider the objection filed by the judgment debtor and has to decide whether an inquiry would be necessary or not.
Brief Facts:
The suit of the petitioners-decree holders was for possession and the said suit was decreed directing the defendant i.e., respondent herein to hand over the vacant possession of plaint ‘A’ schedule premises and to pay a mesne profit of Rs.3,000/- per month till handing over the vacant possession of plaint ‘A’ schedule premises. The respondent-judgment debtor on appearance, filed his objection on 26.05.2023. Thereafter, the execution petition was adjourned from time to time, and under impugned order, the Executing Court without any reason or without assigning any reason observed that before passing the delivery warrant order, it is necessary to post for inquiry.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the Executing Court committed a grave error in passing such an order. He submitted that the question of inquiry in a decree for possession would not arise. Further, it is submitted that if the decree is put into execution within two years, the Executing Court to issue notice in terms of Rule 22 of Order 21 of CPC.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that the petitioners-decree holders have not described the property properly. Further, he submitted that the house in the occupation of judgment debtor consists of more than 2000 sq. ft and it is not identifiable to which portion, the petitioners-decree holders' property would fall i.e., 600 sq. ft. Thus, learned Senior Counsel would submit that to find out the property or to identify the property of the decree holders, the Executing Court has rightly posted for inquiry.
The Court noted that the main objection raised by the respondent-judgment debtor is that the decree put into execution is in relation to house property measuring 600 sq. ft., whereas, the judgment debtor is in occupation of more than 2000 sq. ft. It is further contended that without proper identification of the property if the execution is ordered, the judgment debtor would suffer irreparable injury and hardship.
The Court observed that the Executing Court is bound to consider the objections raised by the judgment debtor and pass the appropriate order. In the instant case, the Execution Court is expected to consider the objection filed by the judgment debtor and has to decide whether an inquiry would be necessary or not. The Executing Court without recording any reason or the purpose of inquiry, posted the execution petition for an inquiry. The order should indicate the reason for posting an Execution Petition for an inquiry.
The decision of the Court:
The Karnataka High Court, allowing the petition, held that the impugned order dated 04.10.2023 on the file of Civil Judge and JMFC, posting the Execution Petition for inquiry is set aside.
Case Title: Veerendra & Ors. v. Shanthiraja Hegde
Coram: Hon’ble Justice S. G. Pandit
Case no.: WRIT PETITION NO. 26622 OF 2023 (GM-CPC)
Advocate for the Petitioner: Mr. M Sudhakar Pai
Advocate for the Respondents: Mr. P. P. Hegde
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