Madhuvana House Building Co -Op ... vs Spl Lao And Assistant ...
2021 Latest Caselaw 3308 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 7TH DAY OF SEPTEMBER 2021

                            BEFORE

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

          WRIT PETITION NO.16314/2021(GM-CPC)

BETWEEN :

MADHUVANA HOUSE BUILIDNG
CO-OPERATIVE SOCIETY
SITUATED AT NO.23-A
PALACE MODEL HOUSE
INDIRANAGAR, MYSORE
BY ITS PRESIDENT D T PRAKASH
                                         ... PETITIONER
(BY SRI. S.P. SHANKAR, SR. COUNSEL FOR
    SRI. SRINIVASA GOWDA .K.,ADVOCATE)

AND :

1.      SPL LAO AND ASSISTANTE COMMISSIONER
        MYSORE SUB DIVISION
        MYSORE

2.      B MAHADEVAPPA SINCE DECEASED BY LRS.

        (A)  RAJAMANI
        W/O B MAHADEVAPPA
        AGED 77 YEARS

        (B)  S M PARAMESHA
        S/O B MAHADEVAPPA
        AGED 64 YEARS

        (C)   S M DAKSHAYANI
                             2



     D/O B MAHADEVAPPA
     AGED 51 YEARS

     (D)  S M GIRISH
     S/O B MAHADEVAPPA
     AGED 56 YEARS

     ALL ARE R/OF NO.78
     SATANAHALLY VILLAGE
     KASABA HOBLI
     MYSORE TALUK AND DISTRICT-570 013

                                       ... RESPONDENTS

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR RECORDS IN EX CASE NO.259/2009 ON THE
FILE OF THE I ADDL CIVIL JUDGE SENIOR DIVISION
MYSORE AND SET ASIDE /QUASH THE ORDER
DTD.20.7.2021 MADE ON IA NO.4 FILED UNDER SECTION
47 CPC VIDE ANNEXURE-D ALLOW TH SAME WITH COSTS
AND TO REJECT THE EXECUTION PETITION AND ETC.

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

                       ORDER

The petitioner, who is the second Judgment

Debtor in Ex. No.259/2009 on the file of the I Additional

Senior Civil Judge and CJM, Mysuru, [for short 'the

executing Court'], has filed this petition impugning the

executing Court's order dated 20.07.2021. The original

second respondent has succeeded in its application

under Section 18 of the Land Acquisition Act, 1894 as

also in the subsequent proceedings and thereafter, has

commenced the aforesaid execution proceedings. The

execution Court by the impugned order has dismissed

the first respondent's application under Section 47 of

the Code of Civil Procedure, 1908 [for short, ' the CPC']

objection to execution proceedings.

2. Sri. S.P. Shankar, learned senior Counsel is

heard on behalf of the learned counsel for the petitioner,

and the learned senior Counsel submits that the

petitioner is constrained to approach this Court

impugning the rejection of the application filed by the

first respondent under Section 47 of the CPC as follows:

[a] The subject lands are notified for the benefit

of the petitioner, and the petitioner being a beneficiary

of the acquisition, should have been heard in the

reference proceedings. But the petitioner is not even

made a party in the reference proceedings and only the

first respondent was arrayed as a party in such

proceedings;

[b] The petitioner is impleaded in the execution

proceedings for the first time and that too without

seeking any relief against the petitioner. In the

executing proceedings, the second respondent has

sought for the relief of attachment only against the first

respondent. Nevertheless, the executing Court has

issued warrant for attachment of movables belonging to

the petitioner;

[c] The petitioner is entitled to question the

initiation of enforcement proceedings against the

petitioner not only on the ground that the enforcement

proceedings would not lie against the petitioner without

the petitioner being impleaded in the reference and that

the entire proceedings are vitiated by fraud resulting in

miscarriage of justice.

[d] The petitioner is not a party to any of the

proceedings either in the reference or in the subsequent

appeal. The petitioner must have the liberty to canvass

his case before the executing Court. However, the

petitioner, because of bonafide circumstances, has not

filed objection statement in the execution proceedings

and the petitioner would be prejudiced if precipitous

action are taken against the petitioner because of the

rejection of the first respondent's application.

3. The learned senior Counsel submits that

this Court, in the exercise of jurisdiction under Article

227 of the Constitution of India, must intervene and

pass appropriate orders to protect the petitioner's

interest in the light of the grounds urged with the

executing Court issuing attachment warrant against

movables belonging to the petitioner.

4. However, in the light of the grounds urged,

especially that the petitioner has not filed any

Statement of Objections, it would suffice for this Court

to dispose of the petition with the observation that if the

petitioner has not filed statement of objections

contesting the execution proceedings urging grounds

that would be unique and specific to the petitioner and

if the petition was being contested only by the first

respondent, the petitioner must have the liberty to

contest the execution proceedings. If the attachment

warrant is issued, the petitioner could also file

necessary application for recall of such attachment

warrant. The merits of the grounds urged by the

petitioner for the first time in this petition will not be

considered by this Court without prior consideration

thereof by the executing Court.

For the foregoing, the petition stands disposed of

with liberty to the petitioner, subject to all just

exceptions, to file statement of objections and also the

application for recall of attachment warrant, if issued,

with the observation that if such statement of objections

and application are filed, the executing Court must take

appropriate decision in the interest of justice with all

reasonable opportunity to the petitioner before any

precipitous action is taken against any of the

petitioner's assets.

Sd/-

JUDGE BSR