Sri P Nanda Kumar vs Mr Manohar Dayaram Chatlani
2021 Latest Caselaw 7159 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 23RD DAY OF DECEMBER 2021

                         BEFORE

        THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

        WRIT PETITION NO.18742/2021 (GM-CPC)


BETWEEN :

SRI P NANDA KUMAR
SON OF LATE N PADMANABHAN,
AGED ABOUT 55 YEARS,
NO 113-F, 3RD FLOOR,
CENTRAL CHAMBERS,
GANDHINAGAR,
BENGALURU 560009
                                       ... PETITIONER

(BY SRI. VISHWANATHA K, ADVOCATE)
AND :

1.      MR MANOHAR DAYARAM CHATLANI
        SON OF DAYARAM CHATLANI,
        AGED ABOUT 69 YEARS

2.      MR HARISH L MIRPURI
        SON OF LAKHILAL MIRPURI,
        AGED ABOUT 68 YEARS
        BOTH ARE HAVING THEIR OFICE AT
        NO 23, COMMERCIAL STREET,
        BENGALURU 560001

3.      SMT PARTVATHAMMA
        WIFE OF LATE N PADMANABHAN,
        AGED ABOUT 82 YEARS,
                          2



     RESIDING AT NO 2/4, 1ST FLOOR,
     HANUMAIAH REDDY ROAD,
     HALASUR,
     BENGALURU 560008

4.   SMT P VIJAYAKUMARI
     D/O LATE N PADMANABHAN,
     AGED ABOUT 62 YEARS,
     RESIDING AT MF 1, GROUND FLOOR
     PATHWAY NO 3, NANDINI LAYOUT,
     BENGALURU 560096

5.   SMT P PUSHPALATHA
     D/O LATE N PADMANABHAN,
     AGED ABOUT 57 YEARS,
     RESIDING AT NO 15/A,
     SAI SADAN, 5TH CROSS,
     2ND MAIN, C B SANDRA,
     YELAHANKA NEW TOWN,
     BENGALURU 560064

6.   SMT P CHANDRAKALA
     D/O LATE N APDMANABHAN,
     AGED ABOUT 47 YEARS,
     RESIDING AT NO 60,
     UNNATHI, 3RD CROSS,
     5TH MAIN, KEB LAYOUT,
     SANJAYANAGAR,
     BENGALURU 560094

7.   SRI P DAKSHINA MURTHY
     S/O LATE N.PADMANABHAN,
     AGED ABOUT 57 YEARS,
     RESIDING AT NO1252,
     10TH MAIN, WEST OF CHORD ROAD,
     2ND STAGE, MAHALAKSHMI LAYOUT,
     BENGALURU 560086
                              ... RESPONDENTS

(BY SRI. G.V.SUDHAKAR, ADVOCATE FOR C/R1 & R2;
                             3



   V/O. DTD 25.10.2021, NOTICE TO R3 - R7
   STANDS WAIVED)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DTD.13.9.2021 AS PER ANNEXURE-D PASSED
IN EX NO.2641/2017 BY THE HONBLE XVIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH
NO.10) AND ETC.

     THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:


                       ORDER

The petitioner, who is one of the judgment debtors

in Ex.Case No.2641/2017 on the file of the XVIII

Additional City Civil and Sessions Judge, Bengaluru (for

short, 'the executing Court'), has impugned the executing

Court's order dated 13.09.2021. The executing Court by

this impugned order has rejected the petitioner's

application under Order XXI Rule 83 read with Section

151 of the Code of Civil Procedure, 1908 and issued sale

proclamation and sale warrant for the property bearing

No.2/4 (present No.47) II Cross Road, Wheelers Road,

Bengaluru, measuring East By 112'5" West by 104' +

12'3" North by 40' and South by 32'8" + 12'8", totally

measuring 4,463 Sq. feet (for short, 'the subject

property'). As recorded on the previous hearing date,

the petitioner, who had the advantage of a conditional

interim order, has complied with the condition

inasmuch as he has deposited a sum of Rs.90,00,000/-

(Rupees Ninety Lakhs Only) with the executing Court.

2. The learned counsels for the parties state

that because of the interim order granted by this Court,

the auction is held, but the auction is not completed

and there is no third party interest. The learned

counsels also submit that if the respondents - decree

holders are permitted to withdraw the amount in

deposit in the execution case, the controversy would be

narrowed down to a claim of either Rs.10,00,000/-

(Rupees Ten Lakhs Only) or thereabouts with

corresponding interest.

3. The learned counsel for the respondents -

decree holders also submits that the respondent -

decree holders shall not have possession of the subject

property henceforth and the attachment over this

property shall continue only insofar as the amount to be

determined as due after the memo of calculations are

filed.

4. This Court in the aforesaid circumstances

and submission must dispose of the petition quashing

the executing Court's order for proclamation of sale with

liberty to the respondents- decree holders to withdraw

the amount deposited by the petitioner and call upon

the executing Court to extend an opportunity to both

the petitioner and the decree holder - respondent to file

memo of calculations for determination of the further

amount that the petitioner would be liable to pay in

answering the subject award.

For the foregoing, the following:

ORDER

a. The petition is allowed in part, and the

executing Court's order dated 13.09.2021 in

Ex.Case No.2641/2017 on the file of the

XVIII Additional City Civil and Sessions

Judge, Bengaluru is quashed.

b. The respondents - decree holders are

given liberty to withdraw the amount

deposited by the petitioner pursuant to this

Court's order.

c. Both the petitioner and the decree

holders shall file memo of calculations to

justify the amount payable by the petitioner

- judgment debtor to the respondents -

decree holders, and after due enquiry on the

same, the executing Court shall proceed

further in accordance with law.

d. The enquiry as aforesaid shall be

completed within a period of three [3]

months from the date of receipt of a certified

copy of this order.

e. The attachment of the subject property

shall continue only insofar as the amount

due to the respondents - decree holders after

the aforesaid amount of Rs.90,00,000/- [Rs.

Ninety Lakhs Only].

Sd/-

JUDGE

RB