Karnataka High Court
India Builders Corporation vs Masood Asif on 16 August, 2022
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.15390 OF 2022 (GM-CPC)
BETWEEN:
INDIA BUILDERS CORPORATION
PARTNERSHIP FIRM, WITH OFFICE AT
"SHERIFF CENTRE", NO.73/1, ST. MARKS ROAD,
BANGALORE
BY ITS MANAGING PARTNER
SRI. ZIA UL SHERIFF
IT IS NOT A REGISTERED COMPANY
...PETITIONER
(BY SRI. X.M. JOSEPH, ADVOCATE)
AND:
MASOOD ASIF
BY HIS COURT RECEIVER
MR. I AN ROBERTS SAID TO HAVE BEEN APPOINTED AS
RECEIVER BY THE COURT MASTER MISS MC
CLOUD OF THE HON'BLE HIGH COURT OFJUSTICE
QUEEN'S BENCH, LONDON
AT KINGTON SMITH AND PARTNERS,
DEVONSHIRE HOUSE, NO.60, GOSWELL ROAD
LONDON, UNITED KINGDOM
...RESPONDENT
(BY SRI. SHREYAS JAYASIMHA, ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
REGISTRATION OF EXECUTION NO.896/2003 PENDING ON THE
FILES OF THE LEARNED XXIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-6) VIDE ANNEXURE-A
DTD.26.06.2003 WHICH IS REGISTERED WITHOUT THE
CERTIFIED COPY OF THE ALLEGED DECREE IN CLAIM
NO.HC02C00728 DTD.8.10.2002 SAID TO BE OF THE HIGH
COURT OF JUSTICE, CHANCERY DIVISION, LONDON, SAME AS
BEING CONTRARY TO THE PRESCRIPTIONS OF SECTION 44-
A(1) OF CPC, 1908, AS LAID DOWN IN 2020(17) SCC 798 AT
PARAS 39 AND 42 AND ETC.
2
THIS W.P. COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
In this petition, petitioner has sought for the following
reliefs:
(i) Issue a writ of certiorari to set aside the
registration of Execution No.896/2003 pending
on the files of the learned XXIV Additional City
Civil & Sessions Judge, Bengaluru (CCH-6)
vide Annexure - A dated 26.06.2003, which is
registered without the certified copy of the
alleged decree in Claim No.HC02C00728
dated 08.10.2002 said to be of the High Court
of Justice, Chancery Division, London, same
as being contrary to the prescriptions of
Section 44-A(1) of CPC, 1908, as laid down in
2020 (17) SCC 798 @ paras 39 & 42.
(ii) Issue a writ of certiorari to set aside Annexure
- M, the Order dated 08.02.2022 passed in the
Execution No.896/2003 on the files of the
learned XXIV Additional City Civil & Sessions
Judge, Bengaluru (CCH-6) as opposed to law
laid down in 2020 (17) SCC [email protected] Para 39.
(iii) Issue an appropriate writ order to set aside the
Annexure - H, the order dated 08.02.2022
passed in Execution No.896 of 2003 on the file
of learned XXIV Additional City Civil &
Sessions Judge, Bengaluru (CCH-6) and direct
the respondent to produce life certificate of
Decree Holder from competent authority at
London, U.K. for reasons shown in WP Para
23, as the Court appointed receivers are not
legal heirs or legal representatives of decree
holder.
(iv) Issue an appropriate writ order / direction for
initiating prosecution / proceedings against
respondent for maintaining W.P.No.69 of 2021
(Annexure -F) dated 05.01.2021 through a
holder of power of attorney despite order dated
19.01.2022 noticed in Annexure-E, Execution
petition No.896/2003 prohibiting representation
of respondent through power of attorney.
(v) Issue any other order / direction as deem fit
and proper in the circumstances of the present
case and to allow this writ petition with costs.
2. Heard learned counsel for the petitioner and
learned counsel for the respondent and perused the
material on record.
3. Though several contentions have been urged
by both sides, it is relevant to state that in the earlier round
of litigation between the parties in W.P.No.69/2021 on
05.01.2021, this Court passed the following order:
"Petitioner being the Decree Holder in Execution
Petition No.896/2003 is knocking at the doors of Writ
Court seeking a direction for its expeditious disposal.
2. Notice to respondent-Judgment Debtor is
dispensed with since the prayer in the petition is
innocuous and that the Judgment Debtor shall have an
opportunity of resisting the execution petition in the Court
below.
3. Speedy justice being one of the assets of
Article 21 of the Constitution of India, petitioner is more
than justified in invoking the writ jurisdiction since
execution is of the year 2003 and the foreign decree put
into enforcement was made on 08.10.2002.
In the above circumstances, this writ petition is
disposed off requesting learned judge of the Court below
to accomplish the execution proceedings within an outer
limit of nine months and report compliance to the
Registrar General of this Court.
All contentions of the parties have been kept
open."
4. This Court while directing expeditious disposal
of the petition within a period of nine months left open all
contentions to be decided by the executing Court bearing in
mind that the executing proceedings were initiated in the
year 2003 seeking enforceability of a foreign decree dated
08.10.2002. Subsequently, instead of contesting the
execution proceedings on merits and the same being
disposed of by the executing Court, the petitioner /
judgment debtor filed an application under Section 151
CPC, which was rejected by the trial Court vide the
impugned order, aggrieved by which, the petitioner is
before this Court by way of the present petition.
5. A perusal of the entire material on record
including the previous rounds of litigation between the
parties and the orders passed therein will clearly indicate
that the impugned order passed by the trial Court does not
suffer from any illegality or infirmity nor has the same
occasioned failure of justice warranting interference by this
Court in the present petition, particularly in the light of the
limited / restricted jurisdiction of this Court under Article 227
of the Constitution of India, as held by the Apex Court in the
case of Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC
423.
6. Under these circumstances, I do not find any
merit in the petition and the same is hereby rejected.
7. However, as directed by this Court in its order
dated 05.01.2021 passed in W.P.No.69/2021, all rival
contentions between the parties are kept open to be
decided by the Executing Court. Further, since the period
of nine months stipulated by this Court has already expired
in view of the intervening Covid-19 pandemic, I extend the
period of disposal of the executing proceedings by the
executing Court by a further period of six months from
25.08.2022.
Both the parties are directed to co-operate with the
executing court for expeditious disposal of the proceedings.
Sd/-
JUDGE
SV
