Karnataka High Court
Mr. Veerendra vs Mr. Shanthiraja Hegde on 11 December, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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WP No. 26622 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 26622 OF 2023 (GM-CPC)
BETWEEN:
1. MR. VEERENDRA,
S/O LATE P.K.GUNAPAL AND
LATE SMT. RATHNAMMA,
AGED ABOUT 52 YEARS,
2. MR. VIVEK,
S/O LATE P.K.GUNAPAL AND
LATE SMT. RATHNAMMA,
AGED ABOUT 45 YEARS,
3. SMT. VINODA,
D/O LATE P.K.GUNAPAL AND
LATE SMT.RATHNAMMA,
AGED ABOUT 43 YEARS,
Digitally signed
by SUCHITRA
MJ
Location: HIGH
4. MR. MAHAVEERA,
COURT OF S/O JEEVANDHARA AND LATE VIDYA,
KARNATAKA
AGED ABOUT 32 YEARS,
5. KUMARI. PRAGATHI,
D/O JEEVANDHARA AND LATE VIDYA,
AGED ABOUT 25 YEARS,
6. SMT. RATHNAPRABHA,
W/O VINAY,
AGED ABOUT 52 YEARS,
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WP No. 26622 of 2023
7. KUMARI. PALLAVI,
S/O NEMAYYA HEGDE,
AGED ABOUT 25 YEARS,
ALL ARE R/AT RATHNA NILAYA,
NELLIGUDDE, MARPADY VILLAGE,
GANDHINAGAR,
P.O, MOODBIDRI - 574 227,
D.K.
...PETITIONERS
(BY SRI. M SUDHAKAR PAI., ADVOCATE)
AND:
MR. SHANTHIRAJA HEGDE,
S/O NEMAYYA HEGDE,
AGED ABOUT 73 YEARS,
R/AT NELLIGUDDE,
MARPADY VILLAGE, GANDHINAGAR P.O.
MOODBIDRI - 574 227, D.K.
...RESPONDENT
(BY SRI.P.P.HEGDE, SENIOR ADVOCATE FOR
SMT.RACHITHA RAJASHEKAR, ADVOCATE FOR
M/S.P.P.HEGDE ASSTS., ADVOCATES)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO a) QUASH THE ORDER
DATED 04/10/2023, EX.CASE NO.9/2019 ON THE FILE OF
CIVIL JUDGE AND JMFC, MOODABIDRI, WHICH ORDER IS
CONTAINED IN THE CERTIFIED COPY OF THE ORDER SHEET OF
EX. CASE NO.9/2019, VIDE ANNEXURE-L TO THE WP AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 26622 of 2023
ORDER
Heard Sri. M.Sudhakar Pai, learned counsel for the
petitioners-decree holders and Sri. P.P.Hegde, learned
Senior Counsel for Smt. Rachitha Rajshekar, learned
counsel for the respondent-judgment debtor. Perused the
writ petition papers.
2. Learned counsel Sri. M.Sudhakar Pai would
submit that the petitioners are before this Court,
aggrieved by order dated 04.10.2023 in Ex.Case
No.9/2019 on the file of the Civil Judge and JMFC,
Moodabidri, by which the Executing Court posted the
execution petition for enquiry. Learned counsel further
submits that 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
mesne profit of Rs.3,000/- per month till handing over the
vacant possession of plaint 'A' schedule premises. Learned
counsel would further submit that plaint 'A' schedule
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premises is Door Nos.3-221 and 3-221(A) of Moodbidri
Town Muncipality, measuring about 600 Sq. feet area and
situated in S.No.304/2B of Marpady Village of Mangalore
Taluk, D.K. District.
3. Learned counsel for the petitioners further
submits that 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 delivery warrant order, it is necessary to
post for enquiry. Learned counsel would further contend
that the Executing Court committed grave error in passing
such order. He would submit that the question of enquiry
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. Learned counsel further
submits that when Rule 35 of Order 21 of CPC would not
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contemplate any enquiry, there is no basis for the
Executing Court for posting the Execution Petition for an
enquiry. Thus, learned counsel would submit that the
order of the Executing Court is opposed to the provisions
of Order 21 Rule 35 of CPC. Thus, he prays for allowing
the writ petition.
4. Learned Senior Counsel Sri. P.P.Hegde for the
respondent-judgment debtor would support the order
passed by the Executing Court and would submit that the
petitioners-decree holders have not described the property
properly. Further, he submits that house in 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 enquiry.
5. The decree put into execution is a decree for
possession directing the defendant i.e., respondent herein
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to hand over the vacant possession of plaint 'A' schedule
premises in terms of decree, which reads as follows:
"Tiled residential premises bearing Door No.3-
221 and 3-221(A) of Moodbiri Town Muncipality and
measuring about 600 sq. feet area and situated in
S.No.304/2B of Marpady Village of Mangalore Taluk,
D.K. District."
6. On appearance, the respondent-Judgment
Debtor filed objections on 26.05.2023 and at Paragraph
No.3, raised the following objection:
"3. Without prejudice to the contentions
taken by the Judgement Debtor in the suit in O. S.
No. 163/2013 and RA No.143/2023 it is submitted
that the description of the property is not sufficient
to identify the decree schedule property. The house
in occupation of the Judgement Debtor is of more
the 2000 sq. feet in extent. The decree is only with
regard to house of 600 sq. feet only. Without
sufficient description, the Decree Holder cannot seek
execution. If the execution is ordered without
proper identification of property, the Judgment
Debtor will suffer irreparable injury and hardship.
Therefore the above decree is not executable."
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7. 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,
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.
8. Order 21 Rule 35 of CPC governs execution of
decree of immovable property which read as follows:
"35. Decree for immovable property.- (1)
Where a decree is for the delivery of any immovable
property, possession thereof shall be delivered to the
party to whom it has been adjudged, or to such person
as he may appoint to receive delivery on his behalf,
and, if necessary, by removing any person bound by
the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of
immovable property, such possession shall be
delivered by affixing a copy of the warrant in some
conspicuous place on the property and
proclaiming by beat of drum, or other customary
mode, at some convenient place, the substance of the
decree.
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(3) Where possession of any building or
enclosure is to be delivered and the person in
possession, being bound by the decree, does not
afford free access, the Court, through its officers, may,
after giving reasonable warning and facility to any
woman not appearing in public according to the
customs of the country to withdraw, remove or open
any lock or bolt or break open any door or do any
other act necessary for putting the decree-holder in
possession.
"(4) Where delivery of possession of a house is
to be given and it is found to be locked, orders of
Court shall be taken for breaking open the lock for
delivery of possession of the same to the decree-
holder.
If it is found at the time of delivery that there
are movables in the home to which the decree-holder
has no claim and the judgment-debtor is absent, or if
present, does not immediately remove the same, the
officer entrusted with the warrant for delivery shall
make an inventory of the articles so found with their
probable value, in the presence of respectable persons
on the spot, have the same attested by them and
leave the movables in the custody of the decree-holder
after taking a bond from him for keeping the articles in
safe-custody pending orders of Court for disposal of
the same.
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The officer shall then make a report to the Court
and forward therewith the attested inventory taken by
him.
The Court shall, thereupon, issue a notice to the
judgment-debtor requiring him to take delivery of the
said movable within thirty days from the date of the
notice and in default they will be sold in public auction
at his risk and the proceeds applied for meeting all
legitimate expenses of custody and sale and the
balance, if any, will be refunded to the judgment-
debtor:
Provided that if movable articles referred to
above are perishable, the officer shall sell them in
public auction immediately, and bring the proceeds
into Court. The notice to the Judgment-debtor shall in
such a case call upon him to receive the amount from
Court within three months." (w.e.f. 17-8-1966)"
9. The Executing Court is bound to consider the
objections raised by the judgment debtor and pass
appropriate order. In the instant case, the Execution
Court is expected to consider objection filed by the
judgment debtor and has to decide whether enquiry would
be necessary or not. The Executing Court without
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recording any reason or the purpose of enquiry, posted
the execution petition for an enquiry. The order should
indicate the reason for posting Execution Petition for an
enquiry. In normal circumstances, no enquiry would be
necessary when a decree for possession is put into
execution in terms of Rule 35 of Order 21 of CPC, but the
same would depend on the objection that would be raised
by the judgment debtor.
10. In the above circumstances, the following:
ORDER
a) Impugned order dated 04.10.2023 on the file
of Civil Judge and JMFC, Moodabidri, posting
the Execution Petition for enquiry is set aside.
b) The Executing Court is directed to consider the
objection filed by the respondent-judgment
debtor on 26.05.2023, hear the parties and
proceed further in accordance with law in the
light of the observations made above.
Sd/-
JUDGE
SMJ
