Karnataka High Court

Smt Sharfunissa vs Touffeq Ahmed on 11 January, 2024

Author: S.R.Krishna Kumar

Bench: S.R.Krishna Kumar

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                                                       NC: 2024:KHC:1470
                                                    WP No. 1422 of 2023




             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 11TH DAY OF JANUARY, 2024

                                   BEFORE
                THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                    WRIT PETITION NO. 1422 OF 2023 (GM-CPC)
            BETWEEN:

               SMT SHARFUNISSA
               AGED ABOUT 85 YEARS
               WIFE OF LATE MOHAMMED INAYATHULLA
               RESIDING AT NO 119/32
               BEHIND PHILOMINA HOSPITAL
               ANJINAYA TEMPLE STREET
               6TH CROSS
               YELAGUNDAPALYAM
               BANGALORE - 560047.
                                              ...PETITIONER
            (BY SRI. NAYEEM PASHA S.,ADVOCATE)

            AND:

               TOUFFEQ AHMED
               SON OF EJAZ AHMED
Digitally      AGED ABOUT 45 YEARS
signed by
ANAND N        RESIDING AT NO 141/31
Location:      NEW NO 34, ANJANEYA TEMPLE STREET
HIGH
COURT OF       YELAGUNDAPALYAM
KARNATAKA
               ASHOK NAGAR
               BANGALORE - 560047.
                                             ...RESPONDENT
            (BY SRI. GOPALA.,ADVOCATE)

                   THIS WP IS FILED UNDER ARTICLE 227 OF THE
            CONSTITUTION OF INDIA PRAYING TO-QUASHING THE
            DELIVERY    WARRANT     ORDER     ON   05/12/2022,   IN
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                                                      NC: 2024:KHC:1470
                                                  WP No. 1422 of 2023




EXECUTION NO.25091/2019 PENDING ON THE FILE OF 28TH
ADDL CITY CIVIL AND SESSION JUDGE (CCH 29). VIZ-
ANNEXURE-A;        QUASHING        THE     JUDGMENT        DATED
22/03/2014 AS OBTAINED BY PLAYING FRAUD PASSED IN
O.S NO.26573/2013, ON THE FILE OF 28TH ADDITIONAL CITY
CIVIL AND SESSION JUDGE AT BANGALORE, (CCH 29). VIZ-
ANNEXURE-C.

       THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

In this petition, the petitioner seeks the following

reliefs:

"a. Issue a writ, direction, order or a writ or certiorari, quashing the delivery warrant order on 05.12.2022, in Execution No. 25091/2019 pending on the file of 28th Addl city civil and session judge (CCH

29) Viz- Annexure-A.

b. Issue a writ, direction, order or a writ of certiorari quashing the judgment dated 22.03.2014 as obtained by playing fraud passed in O.S. No. 26573/2013, on the file of 28th Additional city civil and session judge at Bangalore, (CCH 29). Viz- Annexure-

2. The material on record indicates that the

petitioner is the Judgment Debtor in the instant execution

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proceedings in Ex. No.25091/2019 which is currently

pending before the City Civil Court, Mayohall Unit,

Bengaluru [for short, 'the executing Court'] and has been

posted on 28.06.2024. In the instant execution

proceedings, the respondent herein is the decree holder.

3. The learned counsel for the petitioner has filed

a memo seeking withdrawal of prayer No.[b] sought for in

the present petition and submits that the petitioner herein

unconditionally withdraws prayer No.[b] in the present

petition. The said memo which is duly signed by the

petitioner as well as the learned counsel for the petitioner

reads as under:

"The undersigned counsel herewith submits that the petitioner will not press the prayer 'b' sought to set aside ex parte Judgment and decree in O.S. No.26573/2013 CCH-29, to meet the ends of justice."

The memo is placed on record and prayer No.[b] sought for

in the present petition is dismissed as not pressed.

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4. The material on record disclosed that the

respondent herein instituted the aforesaid execution

proceedings to execute the Judgment dated 22.03.2014

passed in O.S. No.26573/2013 on the file of the XXVIII

Additional City Civil and Sessions Judge, Bengaluru. In the

said execution proceedings, the executing Court

proceeded to pass the impugned order dated 05.12.2022

directing issuance of delivery warrant as against the

petitioner/Judgment debtor. On 19.01.2023, this Court

passed the following interim order.

"Issue notice to the respondent.

Petitioner is permitted to serve the learned counsel appearing for the respondent before the trial Court.

Petitioner is also permitted to serve the respondent or his learned counsel on the next date of hearing before the trial Court by way of hand summons.

The learned Presiding Officer to facilitate such service of hand summons. The learned counsel for petitioner submits that fraud has been played on the petitioners insofar as decree is

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obtained in O.S.No.26573/2013 by showing the wrong address.

It is submitted that there was no notice served on the petitioner in the proceedings before the trial court.

It is further submitted that subsequently on the basis of exparte decree obtained, Execution No.25091/2019 has been filed after a lapse of more than five years and in such execution proceedings as well, no notice has been served as is required in terms of Order XXI Rule 22 CPC, as execution was filed after a lapse of two years.

It is further submitted that even in the execution proceedings, notice was taken at the wrong address.

It is submitted that though notice has been ordered, without service of notice, proceedings have been progressed in the Execution Proceedings and apart from sale deed having been executed through Commissioner, delivery warrant has been issued.

It is submitted that though there is observation that despite service of notice, JDR had not appeared. The said observation may not be correct as notice is not served.

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In light of assertion of fraud, there would be stay of further proceedings in Execution No.25091/2019 till the next date of hearing."

5. According to the learned counsel for the

respondents, the said delivery warrant was executed by the

Court Bailiff/Ameen with Police help on 18.01.2023. It is

also contended that subsequently after obtaining the

interim order in the present petition on 19.01.2023, the

petitioner has dispossessed the respondent from the suit

schedule property by breaking open the lock.

6. Per contra, the learned counsel for the

petitioner submits that on 18.01.2023, the Court Bailiff did

not execute the delivery warrant and did not handover

possession of the suit schedule property to the respondent

and consequently the petitioner continues to remain in

occupation/possession of the suit schedule property even

till today. It is also submitted that on 19.01.2023, this Court

passed the interim order of stay which continues to subsist

even as of today.

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7. In view of the aforesaid facts and

circumstances and dispute between the parties as to

execution of the delivery warrant by the Court Bailiff on

18.01.2023, without expressing any opinion on the

merits/de-merits of the rival contentions, I deem it just and

appropriate to dispose of this petition by providing an

opportunity to the petitioner to appear before the executing

Court by preponing the proceedings from 28.06.2024 to

22.01.2024 and file objections to the execution petition and

contest the same in accordance with law. In the result, the

following:

ORDER

[a] The petition is hereby disposed of without

interfering with the impugned order dated

05.12.2022 in Ex. No.25091/2019 on the file of

the XXVIII Additional City Civil and Sessions

Judge, Bengaluru.

[b] The parties are directed to get the execution

proceedings in Ex. No.25091/2019

preponed/advanced from 28.06.2024 to

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22.01.2024 by filing appropriate application in

this regard.

[c] The petitioner is directed to file her statement

of objections to the execution petition on

22.01.2024.

[d] Liberty is reserved in favour of the

respondent/decree holder to file his

rejoinder/reply to the statement of objections