Karnataka High Court
Smt Gayathri vs Smt S Soujanya on 1 July, 2025
-1-
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W.P. No.111/2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.111/2019 (GM-CPC)
BETWEEN:
SMT. GAYATHRI
D/O LATE H.M. JAVARAYAPPA GOWDA
AGED ABOUT 50 YEARS
R/AT NO.142, 14TH CROSS
9TH MAIN, WILSON GARDEN
Digitally signed BANGALORE-560030.
by RUPA V ...PETITIONER
Location: High
Court of (BY SRI. K.R. NAGARAJA, ADV., FOR
karnataka SRI. V. VISWANATHA SETTY, ADV.,)
AND:
1. SMT. S. SOUJANYA
W/O S. PRASAD
AGED ABOUT 44 YEARS
R/AT NO.46/2, 8TH MAIN
MUTYALA NAGAR
BANGALORE-560054.
2. KUM. T. NAGARATHNA SEETHA
D/O LATE VENKATA REDDY
NO.775, 15TH B MAIN ROAD
GOKULA EXTENSION
BANGALORE-560054.
...RESPONDENTS
(BY SRI. S. SARAVANA, ADV., FOR R1
R2 SERVED)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE
RECORDS ON THE FILE OF THE XXX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BANGALORE CITY IN EX.NO.2643/2010. ISSUE A
WRIT OF CERTIORARI BY QUASHING THE ORDER DT.14.6.2018 ON
-2-
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APPLICATION PASSED BY THE XXX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE CITY IN EX.NO.2643/2010 VIDE
ANNEXURE-J AND FURTHER BE PLEASED TO ALLOW THE
APPLICATION FILED BY TEH PETITIONER UNDER ORDER XXI RULE 97
R/W SECTION 151 OF CPC, PENDING DISPOSAL OF THE ABOVE
WRIT PETITION & ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
This petition is filed seeking following reliefs:
"a) Call for the entire records on the file
of the XXX Additional City Civil & Sessions
Judge, Bangalore City in Ex.No.2643/2010;
b) Issue a Writ of Certiorari by quashing
the order dt.14.06.2018 on application
passed by the XXX Additional City Civil &
Sessions Judge, Bangalore City in
Ex.No.2643/2010 vide Annexure-J and
further be pleased to allow the application
filed by the petitioner under Order XXI Rule
97 r/w Section 151 of CPC, pending disposal
of the above writ petition;
c) To grant such other relief/s as deems
fit in the circumstances of the case, in the
interest of justice and equity."
2. Sri.K.R.Nagaraja, learned counsel appearing on
behalf of Sri.V.Viswanatha Setty, learned counsel for the
petitioner submits that the petitioner has filed an
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application as an obstructer to come on record and contest
the case in Ex.No.2643/2010 and also filed an application
under Order XXI Rule 97 r/w Section 151 of Civil
Procedure Code, 1908 stating that the obstructer is the
General Power of Attorney (GPA) holder of the mother of
the judgment debtor and she has authorized the
obstructer to deal with item No.2 of the suit schedule
property and without considering any of the aspects, the
executing Court rejected the application of the obstructer.
It is submitted that even the third party to the
proceedings can be an obstructer in the execution, and his
objection needs to be considered. In support of his
contentions, he placed reliance on the decision of this
Court in the case of Shri.J.Kumar and Another v.
Shri.Muniyappa and Others1. It is submitted that the
executing Court without conducting an enquiry as provided
under Order XXI Rule 97, proceeded to reject the
application at the threshold. Hence, he seeks to allow the
WP.No.5556/2024 dated 26.02.2024
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petition by directing the executing Court to consider the
application of the obstructer by holding an enquiry and
thereafter take the decision in accordance with law.
3. Per contra, Sri.S.Saravana, learned counsel
appearing for respondent No.1/decree holder, supports the
impugned order of the trial Court and submits that the
decree holder obtained the decree on 01.09.2010.
Thereafter, the execution proceedings were initiated and in
execution all three properties were put up for auction. At
that time, the petitioner filed an application as an
obstructer claiming that in relating to item No.2 of the
property she has executed a sale deed in favour of the
mother of the judgment debtor and the said sale deed is a
sham document and she has not received any sale
consideration. Considering these aspects, the mother of
the judgment debtor has executed a GPA in favour of the
obstructer by permitting her to sell the properties. The
trial Court recorded the clear finding that the filing of the
application by the obstructer is highly belated and no
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documents were placed on record to show that the
obstructer has any subsisting right with regard to item
No.2 of the property. He seeks to dismiss the petition.
4. I have heard the arguments of the leaned
counsel for the petitioner, the learned counsel for
respondent No.1 and meticulously perused the material
available on record. I have given my anxious
considerations to the submissions advanced by both sides.
5. Respondent No.1 filed OS.No.4623/2009
against respondent No.2 for recovery of money. The said
suit came to be decreed vide judgment and decree dated
01.09.2010. To execute the aforesaid judgment and
decree, respondent No.1 filed an execution petition in
Ex. Case No.2643/2010. The records indicate that the
three properties referred in the execution petition were
attached during the proceedings and put up for auction.
The petitioner filed an application to contest the
proceedings. The said application was opposed by
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respondent No.1/decree holder. The trial Court considering
the same rejected the application. The petitioner mainly
contended that she has executed a registered sale deed
dated 14.06.2007 in favour of Smt.Sanjeeva Kumari, the
mother of respondent No.2/judgment debtor and the said
instrument is a sham instrument as no sale consideration
was passed to her and the mother of the judgment
debtor/respondent No.2 herein in turn has executed a
Power of Attorney to deal with the said property.
Admittedly, the mother of respondent No.2 died long back.
Thereafter, the property was succeeded by respondent
No.2/judgment debtor, which has been rightly observed by
the trial Court under the impugned order.
6. The trial Court has further rightly recorded the
finding that the obstructer has not placed any cogent and
legally acceptable material before it to establish
substantive rights or the interests over the item No.2
property to consider her application. The trial Court has
also recorded the finding that the filing of the obstructer's
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application is a belated one, after the property was put up
for auction and rejected the said application. I do not find
any error in the finding recorded by the trial Court under
the impugned order calling for interference. The judgment
relied on by the learned counsel for the petitioner has no
application to the facts and circumstances of the case. It is
the case on hand that the petitioner has failed to place on
record the material to show that she has some semblance
of right over the suit schedule property. The registered
sale deed executed by the obstructer in favour of the
mother of respondent No.2/judgment debtor is dated
14.06.2007 and from the said date no steps have been
taken by the petitioner. If the said document is sham as
alleged, then the petitioner would not have kept quite for
all these years. It is evident that the obstructer has not
approached the executing Court with a clean hand and the
executing Court has rightly rejected the said application,
which does not call for any interference in this petition. For
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the aforementioned reasons, I proceed to pass the
following:
ORDER
The writ petition is devoid of merits and
the same is rejected.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
ABK
