Karnataka High Court
Sri P Kanakambara Rao vs Sri Narendra Raju on 12 July, 2022
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.24543 OF 2017 (GM-CPC)
BETWEEN:
SRI P KANAKAMBARA RAO
SINCE DECEASED BY HIS LRS
1. SMT.CHANDRAMMAL
W/O P KANAKAMBARA RAO
AGED ABOUT 65 YEARS
RESIDING AT NO.16
NEW NO.56
NEW TANK ROAD
NUNGAMBAKKAM
CHENNAI - 600034
2. SRI P. KRISHNAMURTHY
S/O KANAKAMBARA RAO
AGED ABOUT 47 YEARS
RESIDING AT NO.16,
NEW NO.56
NEW TANK ROAD
NUNGAMBAKKAM
CHENNAI - 600034
3. SRI VENKATARAMURTHY RAO
S/O KANAKAMBARA RAO
AGED ABOUT 41 YEARS
RESIDING AT NO.16,
NEW NO.56
2
NEW TANK ROAD
NUNGAMBAKKAM
CHENNAI - 600 034
4. SRI P.V.M SHARATHCHANDRAN
S/O KANAKAMBARA RAO
AGED ABOUT 31 YEARS
RESIDING AT NO.16
NEW NO.56
NEW TANK ROAD
NUNGAMBAKKAM
CHENNAI - 600 034
PETITIONER NOS.1 TO 4
ARE REPRESENTED BY THEIR
POWER OF ATTORNEY HOLDER
5TH PETITIONER
5. SRI AMIT R JAIN
S/O SRI RIKABCHAND JAIN
AGED ABOUT 43 YEARS
R/AT PANCHASHEEL APARTMENTS
3RD FLOOR, 3RD CROSS
GANDHINAGAR
BENGALURU - 560009
...PETITIONERS
(BY SRI.V.B.SHIVAKUMAR, ADVOCATE)
AND
SRI NARENDRA RAJU
SINCE DECEASED BY HIS LRS
1. SRI N SRINIVASA RAJU
S/O NARENDRA RAJU
AGED ABOUT 37 YEARS
RESIDING AT NO.52
3
VENKATESHWARA BUILDING
R T STREET
BENGALURU
2. SMT. VANAJAKSHI
W/O NARENDRA RAJU
AGED ABOUT 54 YEARS
RESIDING AT NO.52
VENKATESHWARA BUILDING
R T STREET
BENGALURU - 560053
3. SMT. RATNASREE
AGED ABOUT 40 YEARS
D/O NARENDRA RAJU
RESIDING AT NO.52
VENKATESHWARA BUILDING
R T STREET
BENGALURU - 560 053
4. SMT SHYLASHREE
D/O NARENDRA RAJU
AGED ABOUT 35 YEARS
RESIDING AT NO.52
VENKATESHWARA BUILDING
R T STREET
BENGALURU - 560 053
5. SRI N RAVIKUMAR
S/O NARENDRA RAJU
AGED ABOUT 34 YEARS
RESIDING AT NO.52
VENKATESHWARA BUILDING
R T STREET
BENGALURU - 560 053
6. SUGUNA INDUSTRIES
REPRESENTED BY
ITS MANAGING DIRECTOR
NO.9, 27TH CROSS
4
R T STREET
BENGALURU - 560 053
7. SRI N SRINIVASA RAJU
S/O NARENDRA RAJU
AGED ABOUT 37 YEARS
RESIDING AT NO.9
27TH CROSS, R T STREET
BENGALURU - 560 053
8. SRI M G CHANDRASHEKAR
S/O M R GANGADHARA RAO
AGED ABOUT 43 YEARS
RESIDING AT NO.3738, 1ST FLOOR
VENKUSAHUJI LANE
BENGALURU - 560053
.....RESPONDENTS
(NOTICE TO R.1, 2, 4, 7 AND 8 IS H/S V/O/D 26.02.2021;
NOTICE TO R.6 IS D/W V/O/D 07.06.2022;
R.3 AND R.5 ARE SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 26.04.2017 PASSED BY THE 13TH
ADDITIONAL SMALL CAUSES JUDGE, BENGALURU (SCCH-
15) ON IA R/O 22 RULE 10 CPC IN EX.PTN NO.1823/2001
PRODUCED AT ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
5
ORDER
The captioned writ petition is filed by the
assignee. The application filed under Order 22 Rule
10(2) of CPC seeking leave of the Executing Court to
permit the present petitioner to prosecute and contest
the above execution proceedings is rejected by the
Executing Court. The said order is under challenge.
2. The present petitioner No.5 - plaintiff is
asserting right and title based on the decree passed in
O.S.No.607/2000. The present petitioners claimed
that the said suit was decreed and therefore, having
acquired right and title in the suit schedule property
filed an application under Order 22 Rule 10(2) of CPC
seeking leave to permit him to prosecute the
execution petition and complete the execution
proceedings on behalf of the decree holders. The said
application is not resisted by the original decree
holders. The respondent has resisted this application.
Learned Judge has proceeded to reject the application.
While rejecting the application, the Executing Court
was of the view that the present petitioner No.5 has
already tendered oral evidence as R.W.2 in the
capacity of the power of attorney holder. Therefore,
the Executing Court was of the view that no purpose
would be served if petitioner No.5 is permitted to
come on record as a decree holder to prosecute and
contest the case. On these set of reasoning, the
Execution Court has proceeded to reject the
application.
3. Heard learned counsel appearing for the
petitioners. Perused the order under challenge.
4. There is no contest by the respondents to the
present writ petition. The learned counsel appearing
for the petitioners has placed reliance on the
judgment rendered by the Hon'ble Apex Court in the
case of SHARADAMMA V. MOHAMMED PYREJAN
(D) THROUGH LRS AND ANOTHER reported in AIR
2015 SUPREME COURT 3747. He has also placed
reliance on the judgment rendered by the Hon'ble
Apex Court in the case of DHURANDHAR PRASAD
SINGH V. JAI PRAKASH UNIVERSITY AND
OTHERS reported in AIR 2001 SUPREME COURT
2552.
5. Perused the order under challenge and also
judgment cited by the learned counsel appearing for
the petitioners. The petitioner No.5 claims that he has
acquired right over the property pursuant to the
decree passed in O.S. No.607/2000. Therefore, he
seeks leave of the Court to proceed with the execution
petition. The judgments cited by the learned counsel
appearing for the petitioners are squarely applicable
to the present case on hand.
6. Under Order 22 Rule 10 of CPC, if there is a
devolution of interest during the pendency of a suit,
the assignee, by leave of the Court, is entitled to
continue the proceedings and therefore, if parties thus
seek for leave, the Courts are bound to allow the said
application and permit the assignee to proceed further
with the proceedings. In the judgment cited supra in
the case of DHURANDHAR PRASAD SINGH (cited
supra), the Hon'ble Apex Court was of the view that if
a person who has acquired an interest by the transfer,
the proceedings in the hands of assignee does not
amount to any proceedings. The Hon'ble Apex Court
was also of the view that a cause of action is not
prolonged by mere transfer of the title. It is the old
suit carried on at his instance and the assignee is
bound by new proceedings up to the stage when he
obtains leave to carry on the proceedings.
Therefore, if assignee is entitled to come on record in
the pending suit, then it goes without saying that he is
very much entitled to come on record in the execution
proceedings, when assigner has a benefit of decree.
Therefore, it becomes much more relevant and the
assignee, in such cases, is entitled to execute the
decree in the place of original decree holder.
Therefore, if leave is granted, this Court is unable to
understand as to how contesting Judgment Debtor can
object for an assignee to come on record to execute
the decree. Therefore, in the light of the dictum laid
down by the Hon'ble Apex Court, the order under
challenge is not sustainable and therefore, the same is
liable to be quashed.
For the reasons stated supra, I pass the
following;
ORDER
The Writ Petition is allowed.
The application filed under
Order XXII Rule 10(2) of CPC is
allowed thereby the petitioners are
permitted to prosecute the pending
execution proceedings as assignees.
Sd/-
JUDGE
NBM
