Karnataka High Court
Fahad Ahmed vs Salman Shabana And Ors on 29 February, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC-K:1826
WP No.200652 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
WRIT PETITION NO.200652 OF 2024 (GM-CPC)
BETWEEN:
FAHAD AHMED,
S/O JAMEEL AHMED,
AGED ABOUT 30 YEARS,
OCC: BUSINESS,
RESIDENCE OF H.NO.1-114/B,
MEHATAB ALI COMPOUND,
AIWAN-E-SHAHI,
KALABURAGI-585102.
...PETITIONER
(BY SRI AMEET KUMAR DESHPANDE SENIOR COUNSEL FOR
SRI GANESH SUBHASHCHANDRA KALBURGI, ADVOCATE)
Digitally signed by
SHILPA R AND:
TENIHALLI
Location: High 1. SALMAN SHABANA,
Court Of
Karnataka W/O LATE JAMEEL AHMED,
AGED ABOUT 50 YEARS,
OCC: PRIVATE EMPLOYEE,
R/O BEHIND RAILWAY STATION,
NEAR MASJI-E-ESSA,
KALABURAGI-585102.
2. HUMERA NAYESHA,
D/O LATE JAMEEL AHMED,
AGED ABOUT 19 YEARS,
OCC: STUDENT,
R/O BEHIND RAILWAY STATION,
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WP No.200652 of 2024
NEAR MASJI-E-ESSA,
KALABURAGI-585102.
3. ZARA MAHWESH
W/O ADIL AHMED,
AGED ABOUT 37 YEARS,
OCC: HOUSEHOLD,
RESIDENCE OF 3-6-214,
HIMAYATNAGAR,
HYDERABAD (TELANGANA STATE)-500029.
4. SMT. KHANIZ FATHIMA
W/O LATE JANAB LAL AHMED,
AGED ABOUT 92 YEARS,
OCC: HOUSEHOLD,
R/O H.NO.1-114/B,
MEHATAB ALI COMPOUND,
AIWAN-SHAHI,
KALABURAGI-585102.
5. KAZAM KHAN
S/O JAAN MOHD. KHAN,
AGED ABOUT 66 YEARS,
OCC: AGRICULTURE,
R/O OPP. TIKA CHARAYA,
TEMPLE MAIN ROAD,
MALAKHED, TALUKA: SEDAM,
DISTRICT: KALABURAGI-585317.
6. SYED MUSHTAQ SAYEED
S/O SYED GULAM,
AGED ABOUT 52 YEARS,
OCC: BUSINESS,
R/O STATION BAZAR,
KALABURAGI-585102.
...RESPONDENTS
(BY SRI N. B. DIWANJI, ADVOCATE FOR C/R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE AN APPROPRIATE WRIT, MORE SO IN THE NATURE OF
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WP No.200652 of 2024
CERTIORARI AND GRANT THE FOLLOWING RELIEFS. I) QUASH
THE ORDER DATED 31.01.2024 PASSED IN EP NO.539/2022
ON FILE OF II ADDL. SENIOR CIVIL JUDGE, KALABURAGI THE
COPY OF WHICH AS PER ANNEXURE-J.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri Ameet Kumar Deshpande, learned Senior
Counsel for Sri Ganesh S. Kalburgi for the petitioner and
Sri N.B. Diwanji, learned counsel for Caveat respondent
No.6.
2. The present writ petition is filed with the
following relief:
"It is most humbly prayed that this Hon'ble
Court be pleased to issue an appropriate writ, more
so in the nature of certiorari and grant the following
reliefs:
(i) Quash the order dated: 31.01.2024
passed in EP No.539/2022 on file of II Addl. Senior
Civil Judge Kalaburagi the copy of which as per
Annexure-j, in the interest of justice.
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(ii) Pass any other appropriate writ, order or
direction as this Hon'ble Court may deem fit to grant
in the circumstances of the case, in the interest of
justice."
3. The petitioner filed I.A.No.II under Order 1 Rule
10(2) read with Section 151 of CPC in Execution Petition
No.539/2022, pending on the file of II Additional Civil
Judge (Sr.Dn.), Kalaburagi to implead himself as an
objector to appose the claim of the decree holder. The
petitioner claimed that he is also having interest in the suit
property and therefore, decree cannot be executed against
the judgment debtor who is none other than the step-
mother of the petitioner. The Trial Court rightly rejected
the said application on contest holding that in execution
petition, there is no scope for application of Order 1 Rule
10 of CPC. Being aggrieved by the same, the writ
petitioner is before this Court.
4. Sri Ameet Kumar Deshpande, learned Senior
Counsel reiterating the grounds urged in the writ petition
contended that the Co-ordinate Bench of this Court in the
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case of Smt. Vithabai G. Ghodake And Another vs.
United Western Bank Limited And Another reported in
2002 (3) KCCR 1720 considered the application of Order
1 Rule 10 of CPC considering the scope of entertaining an
application filed under Order 1 Rule 10 of CPC by a third
party in execution proceedings and held that such an
application can be allowed and sought for allowing the writ
petition.
5. Per contra, Sri N.B. Diwanji learned counsel for
respondent No.6/decree holder contends that the applicant
is none other than the step-son of the judgment debtor
and there is no independent interest of the writ petitioner
to be adjudicated in the execution petition and therefore,
the Trial Court was justified in rejecting the application of
the petitioner firstly on the ground of non-maintainability
of the application under Order 1 Rule 10 of CPC and
secondly on merits as well.
6. He also contended that a separate suit has
already been filed by the petitioner which is pending in
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O.S.No.150/2018. If the petitioner succeeds in the said
suit, he can very well proceed against the respondents in
accordance with law insofar as his rights are concerned
and sought for dismissal of the writ petition.
7. Having heard the parties in detail, this Court
perused the records. It is settled principles of law and
requires no emphasis that the only parties to be execution
petition are judgment debtors and decree holders.
8. If any independent right is sought to be
adjudicated, not calcimining under the judgment debtor by
any person, he must resort to an application under Order
21 Rule 97 and Rule 100 of CPC and the same needs to be
considered as per the Rule 101 of Order 21 of CPC.
9. Except the said provision, no other application
by a third party is maintainable before the executing
Court. Therefore, dismissal of the application by order
vide Annexure - J by the Executing Court in E.P.539/2022
dated 31.01.2024 is perfectly justified.
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10. Further, expressing any other opinion on the
merits of the matter would definitely hamper the right of
the parties. Therefore, this Court resists from expressing
any further opinion of the matter. Accordingly, the writ
petition needs to be dismissed.
11. Accordingly, the following order is passed:
ORDER
i. The writ petition stands dismissed.
ii. The dismissal of the writ petition shall
not come in the way of writ petitioner
working out his remedy with
appropriate application in a proper
forum in accordance with law.
Sd/-
JUDGE
RSP
