Karnataka High Court
Sri. N Lokanatha Reddy vs Sri. Basavaraju on 12 February, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2024:KHC:5713
WP No. 9060 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.9060 OF 2023 (GM-CPC)
BETWEEN:
SRI. N LOKANATHA REDDY
S/O LATE V NAGARATHNAM REDDY,
AGED ABOUT 65 YEARS,
R/AT NO.54/5, 2ND FLOOR,
SRI CHOWDESHWARI NILAYA
SHAMMANNA GARDEN,
CHUNCHAGHATTA ROAD
KONANAKUNTE,
BENGALURU -560 062
...PETITIONER
(BY SRI M S NAGARAJA, ADVOCATE)
AND:
Digitally
signed by
Vandana S
Location: SRI. BASAVARAJU
HIGH S/O CHANNEGOWDA,
COURT OF
KARNATAKA AGED ABOUT 50 YEARS,
R/AT NO 13, GROUND FLOOR,
MUNICIPAL NO.18, 6TH MAIN,
MEENAKSHINAGAR,
KAMAKSHIPALYA,
BENGALURU 560079
PRESENTLY R/AT 29/13,
MATHRUSREE NILAYA
6TH A MAIN ROAD,
-2-
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WP No. 9060 of 2023
MEENAKSHINAGAR
BENGALURU 560079
...RESPONDENT
(BY SRI. MOHAMED KHAN A, ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED THE LEARNED VI ADDITIONAL SMALL
CAUSES JUDGE, AND ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE CITY, (SCH-2) ON IAs FILED
U/S 151 OF CPC IN EX.NO.603/2022 DTD.31.03.2023
VIDE ANNEXURE-H.
THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition by the decree holder in
Ex. No.603/2022 on the file of the VI Additional Small
Causes Judge and Additional Chief Metropolitan
Magistrate, Bengaluru City [for short, 'the executing
Court'], is directed against the impugned order dated
31.03.2023 whereby, the application filed by the
petitioner under Section 151 of the Code of Civil
Procedure, 1908 [for short, 'CPC'] seeking reopening of
the case by recalling the order dated 16.12.2022 and
another application under Section 151 of CPC for a
direction to the jurisdictional police authorities to
remove the respondent-judgment debtor/his family
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members and restore possession of the schedule
property back to the petitioner, were rejected by the
executing Court.
2. Heard the learned counsels for the parties
and perused the material on record.
3. A perusal of the material on record will
indicate that the petitioner-decree holder instituted the
instant execution proceedings to enforce and implement
the judgment and decree dated 04.01.2022 passed in
S.C.No.326/2018 in favour of the petitioner against the
respondent. Pursuant to the delivery warrant dated
13.12.2022 being issued by the executing Court, the
Court amin/bailiff handed over possession of the
schedule property to the petitioner from the respondent,
and the execution proceedings stood closed vide order
dated 16.12.2022.
4. It is the contention of the petitioner that
subsequent to closure of the execution proceedings, the
respondent and his wife had trespassed into the
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schedule property without the knowledge and
permission of the petitioner and despite a complaint
being lodged by the petitioner and FIR registered in
Crime No.75/2023, the respondent was refusing to
restore possession of the schedule property back to the
petitioner, which constrained the petitioner to file the
instant application seeking reopening of the execution
proceedings and for police help to restore possession of
the schedule property back to the petitioner. Though
the said applications were not contested/opposed by the
respondent-judgment debtor, the executing Court
passed the impugned order rejecting both the
applications, aggrieved by which, the petitioner is
before this Court by way of the present petition.
5. Per contra, the learned counsel for the
respondent submits that subsequent to closure of the
execution proceedings, the petitioner had voluntarily
put the respondent back into possession of the suit
schedule property and if one more opportunity is
granted, the respondent-judgment debtor would file his
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objections to the said applications and contest the same
in accordance with law.
6. In view of the aforesaid facts and
circumstances and in the light of the specific contention
urged by the respondent-judgment debtor that if one
more opportunity is provided to him, the respondent
would file his objections to the applications filed by the
petitioner-decree holder, I deem it just and appropriate
to set aside the impugned order and remit the matter
back to the executing Court for reconsideration afresh in
accordance with law.
7. In the result, the following:
ORDER
a The petition is hereby allowed.
b The impugned order dated 31.03.2023
in Ex. No.603/2022 on the file of the VI
Additional Small Causes Judge and
Additional Chief Metropolitan
Magistrate, Bengaluru City is set aside.
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c The parties shall appear before the
executing Court on 26.02.2024.
d The respondent-judgment debtor shall
file his objections to the applications
filed by the petitioner-decree holder on
26.02.2024.
e Upon the respondent-judgment debtor
filling his objections as stated supra,
the executing Court shall hear both the
parties and pass appropriate orders as
expeditiously as possible and preferably
on or before 26.04.2024.
f All rival contentions on all aspects of
the matter are kept open and no
opinion is expressed on the same.
Sd/-
JUDGE
RB
