Sri Manjunatha R vs Smt Mahalakshmi
2023 Latest Caselaw 1161 Kant

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                                                   WP No. 2127 of 2023




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 2ND DAY OF FEBRUARY, 2023

                                       BEFORE
                    THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
                     WRIT PETITION NO. 2127 OF 2023 (GM-CPC)


               BETWEEN:

               1.    SRI MANJUNATHA R,
                     AGED ABOUT 38 YEARS,
                     S/O LATE SMT REVAMMA AND SRI RAMAIAH,
                     R/O NO.37, 3RD CROSS,
                     OPP KIRISKAR FOUNDRY,
                     MAHALAKSHMI LAYOUT,
                     BANGALORE - 560086.

               2.    SMT SAVITRAMMA R,
                     AGED ABOUT 42 YEARS,
                     D/O LATE SMT REVAMMA AND SRI RAMAIAH,
                     RESIDENT OF C/O B R GOVINDAPPA,
Digitally            NO.30, 3RD CROSS,
signed by            DODDIPALYAKALYANA MANTA,
VIDYA G R
Location:            KUVEMPU NAGAR, VTC,
High Court           BANGALORE - 560060.
of Karnataka
               3.    SRI ANAND R,
                     AGED ABOUT 36 YEARS,
                     S/O LATE SMT REVAMMA AND SRI RAMAIAH,
                     R/O NO.37, 3RD CROSS,
                     KIRLOSKAR FOUDRY,
                     RAJAJINAGAR, BANGALORE - 560022.

                                                         ...PETITIONERS

               (BY SRI. CHETHAN B, ADVOCATE)
                            -2-
                                    WP No. 2127 of 2023




AND:

1.   SMT MAHALAKSHMI,
     AGED ABOUT 39 YEARS,
     S/O LATE SMT REVANNA AND SRI RAMAIAH,
     R/O NO.37, 3RD CROSS,
     KIRLOSKAR BADAVANE,
     OPP MAHALAKSHMIPURA BADAVANE,
     BANGALORE - 560022.

2.   SRI GAUTHAM KUMAR B,
     AGED ABOUT 41 YEARS,
     S/O SRI SHANKAR LAL.B,
     R./O NO.134/1, HEGGANAHALLI,
     VISHWANEEDAM POST,
     BANGALORE -560091.

                                        ...RESPONDENTS

(BY SRI B ROOPESHA, ADVOCATE FOR R2)



       THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 14/11/2022 PASSED IN EXECUTION
PETITION NO.2285/2017 PASSED ON I.A.NO.1 BY THE
HON'BLE ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
(CCH-19) AT BANGALORE AS PER ANNEXURE-A AND ETC.,



       THIS PETITION, COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
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                                              WP No. 2127 of 2023




                                ORDER

The petitioners, who are impleading applicants in the

execution proceedings in Ex. Case No.2285/2017 have

called in question the correctness of the order at

Annexure-'A' dated 17.12.2022, which is the order

of 14.11.2022 passed on I.A.No.1 filed under Order 21

Rule 54 and 64 read with Section 151 of C.P.C., whereby

the executing Court has allowed the application filed by

the Decree Holder and ordered for issuance of attachment

warrant of immoveable property and also for issuance of

sale notice.

2. The petitioners have also sought for setting

aside of the order of 24.01.2023, whereby the executing

Court has ordered for reissue of sale notice and fixed the

Spot sale on 02.02.2023 and Court sale on 17.02.2023 .

3. It is the case of the petitioners-impleading

applicants that the petitioners and Judgment debtor are

children of Smt.Revamma and that the property belonged

to Smt.Revamma and subsequently after her death, the

WP No. 2127 of 2023

Judgment Debtor has got the revenue records transferred

to her name though the property belonged to all the legal

heirs of late Smt.Revamma. Accordingly, it is submitted

that the Decree Holder could not have proceeded against

the property which belonged to all the legal heirs of late

Smt.Revamma as regards the debt incurred by the

Judgment Debtor.

4. Learned counsel appearing for respondent

No.1-Decree Holder submits that interest by all the other

legal heirs of late Smt.Revamma have been relinquished in

favour of Judgment Debtor on 30.05.2008 and

subsequently, the Bangalore Development Authority has

executed the Sale Deed in favour of the sole Judgment

Debtor on 07.12.2010.

5. Various other contentions have been raised,

including that the impleading application is not

maintainable.

WP No. 2127 of 2023

6. Admittedly, the petitioners-impleading

applicants are seeking to claim that decree is not binding

insofar as their interest in the property is concerned. The

only legal remedy available is by raising an obstruction

and other contentions in terms of Order 21 Rule 97 to Rule

101 of C.P.C. in accordance with law and mere efforts to

file the impleading applications would not be an

appropriate remedy.

7. Learned counsel for the petitioners has referred

to the judgment in the case of Shreenath and Another

vs. Rajesh and others - 1998 (4) SCC 543 and submits

that the petitioners ought to be given an opportunity to

assert their rights before the Court, which needs to be

taken note of appropriately and accordingly, even if the

application under Order I Rule 10 of CPC is rejected, the

same will not have the effect of foreclosing the right of the

petitioners to seek for adjudication of their interest.

WP No. 2127 of 2023

8. Accordingly, the petition is disposed off. If

objection/application is filed in the manner contemplated

hereinabove, the same is to be adjudicated before

proceeding further.

9. Accordingly, the proceedings relating to sale is

deferred till conclusion of the executing Court to be arrived

at on the objection/application to be filed by the

petitioners. The petitioners are granted ten days' time

from today to file the necessary objections/application in

the execution proceedings as referred to above. The

application/objection, if filed by the petitioners, is to be

disposed of by the executing Court expeditiously taking

note that the decree is of the year 2015.

Sd/-

JUDGE

VGR