Karnataka High Court

Mr Akram Pasha vs Mr Syed Ziaulla on 27 June, 2025

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                                                       WP No. 16534 of 2017


                    HC-KAR




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 27TH DAY OF JUNE, 2025

                                              BEFORE
                         THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
                          WRIT PETITION NO. 16534 OF 2017 (GM-CPC)
                   BETWEEN:
                   MR AKRAM PASHA
                   S/O LATE HYDER PASHA,
                   AGED ABOUT 45 YEARS ,
                   R/AT NO.4, 6TH CROSS,
                   SOMESHWAR NAGAR,
                   JAYANAGAR 1ST BLOCK,
                   BENGALURU - 560 011.
                                                                ...PETITIONER
                   (BY SRI. PRABHUGOUD B TUMBIGI.,ADVOCATE)

                   AND:

                   1.    MR SYED ZIAULLA
                         S/O LATE H.SYED ABBAS,
                         AGED ABOUT 64 YEARS,
Digitally signed
by SUMA B N              R/AT NO. 710/63,
Location: HIGH
COURT OF                 30TH A CROSS, THILAKNAGAR,
KARNATAKA
                         BENGALURU - 560 041.

                   2.    ASLAM
                         S/O ABDUL SATTAR,
                         V CROSS, SOMESHWAR NAGAR, J
                         AYANAGAR, 1ST BLOCK,
                         BENGALURU - 560 011.
                                                              ...RESPONDENTS
                   (R1 PETITION ABATED VIDE COURT ORDER DATED 21.01.2023
                   R2 SERVICE OF NOTICE IS DISPENSED WITH VIDE COURT ORDER
                   DATED 08.08.2024)
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                                                   NC: 2025:KHC:22626
                                               WP No. 16534 of 2017


HC-KAR




      THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 01.04.2017 PASSED BY XXII ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE IN EX.NO.496/2009 ON I.A.NOS.1
TO 3/2016 AT ANNEX-A TO W.P. AND ETC.

     THIS PETITION, COMING ON FOR ORDERS, 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:

''i) Issue a writ in the nature of certiorari thereby quashing the impugned order dated 01.04.2017 passed by the XXII Additional City Civil and Sessions Judge, Bangalore CCH.No.7 in Ex.No.496/2009 on I.A.No.1 to 3/2016 produced wide Annexure-A to the writ petition, in the interest of justice and equity.

ii) Issue a writ in the nature of mandamus thereby allowing the I.A.Nos.1 to 3/2016 filed by the petitioner produced wide Annexure-R, S and T, in the interest of justice and equity.

iii) Pass any other order or direction as this Hon'ble court deems fit in view of the facts and circumstances of the case, in the interest of justice and equity.''

2. Sri. Prabhugoud B. Tumbigi, learned counsel for the

petitioner submits that the respondent No.1 filed a suit for

declaration, permanent injunction and possession in respect of

the suit schedule property mentioned in O.S.No.7883/1999

making a stranger as a defendant. It is submitted that the

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defendant in the said suit has taken stand that one Syed

Ghouse is the owner of the suit schedule property, the Trial

Court passed the judgment and decree in favour of the

respondent No.1 on 27.10.2007 and to execute the said

decree, respondent No.1 filed an Execution Petition in

Ex.P.No.496/2009. The said Court issued delivery warrant to

take possession against the judgment debtor- Sri.

Aslam/respondent No.2 and officials of the Court and Police

came to the property of the petitioner and tried to dispossess.

On verification of the record, the Officials intimated the

respondent No.1 to approach the Court as the petitioner herein

had possessed the suit schedule property as per the registered

sale deed. It is further submitted that the petitioner filed

applications to recall the delivery warrant, stay all further

proceedings in the execution case and to adjudicate the rights

of the applicant. The trial Court under the impugned order

rejected the applications without any adjudication, contrary to

the provisions of law solely on the ground that similar

application was filed by the erstwhile vendor of the present

petitioner. It is also submitted that the Trial Court is duty

bound to consider the objector's application under Order XXI

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Rule 97 read with Section 101 of code of Civil Procedure,

1908 (for short 'CPC') as the scope in the said Rule is very

wide, the rejection is contrary to law. It is contended that the

petitioner purchased the property which is distinct from the

property shown in the said judgment and decree and he is in

settled possession in the said premises. Hence, he seeks to

allow the petition by setting aside the impugned order by

directing the Executing Court to consider the objector's

application.

3. No representation for the other side on 03.06.2025,

20.06.2025 and today also.

4. I have heard the arguments of learned counsel for the

petitioner and meticulously perused the material available on

record. I have given my anxious consideration to the

submissions advanced.

5. The respondent No.1 filed O.S.No.7883/1999 against

the respondent No.2 seeking relief of declaration of title,

permanent injunction and possession of the suit schedule

property. The suit schedule property shown in the plaint is the

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property bearing house site No.1-A, comprised in Sy.No.13/5,

Corporation katha No.2, C.T.S.No.821/05, situated at 6th Cross,

Someshwaranagar Extension, Siddapura, 36th Division,

Bangalore City Corporation and boundaries mentioned therein.

The said suit came to be allowed vide judgment and decree

dated 27.10.2007. The respondent No.1 initiated the execution

proceedings in Ex.P.No.496/2009, in the said proceedings the

Executing Court issued a delivery warrant against the judgment

debtor-respondent No.2 herein. Records indicate that the

Court Amin and Police came to the house of the petitioner and

tried to execute the delivery warrant. On noticing that the

petitioner is the owner of the house property bearing No.4,

Municipal No.6, PID No.61-43-06, new PID No.144-122-33

situated at 6th Cross, Someshwaranagar, Bangalore measuring

East to West: 20 Feet, North to South: 54 Feet totally

measuring 1080 Sq.Ft., together with 12 Squares house,

consisting of 6 Squares in ground floor and 6 Squares in the

first floor of RCC Roofing, Red-oxide flooring, reporting back to

the Executing Court the said fact. The material on record

further indicates that the petitioner filed an application for

seeking to recall the delivery warrant issued by the Executing

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Court on 13.08.2015, an application seeking a stay of all

further proceedings in Ex.P.No.496/2009 and an application

filed under Order XXI Rule 97 read with Section 101 of CPC

seeking to adjudicate the right of the applicant on the ground

that the applicant/petitioner is the owner of the property

referred to supra and by virtue of the decree of the Court the

respondent No.1 with the help of Police tried to dispossess the

petitioner. The said applications came to be rejected solely on

the ground that the vendor of the petitioner filed similar

applications. Hence, the later applications filed by the

petitioner were rejected. In my considered view, the Trial

Court has committed a grave error in rejecting the said

applications solely on the aforesaid grounds.

6. The petitioner/objector has invoked Order XXI Rule 97

read with Section 101 of CPC, as the scope of the said provision

is very wide and executing Court is required to adjudicate the

aforesaid applications in accordance with the provisions

contained in the said chapter. Rejection of the said applications

solely on the ground that his vendor application was rejected,

may not be correct. The petitioner has produced the registered

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sale deed dated 24.07.2014, Khata, encumbrance certificate,

tax paid receipts and photographs to indicate that he is in

possession of the premises and he has let out the said premises

to the tenants. Hence, these materials are placed before the

Court, the Executing Court is required to consider the same as

per the provisions of law.

7. It would be useful to refer to the decision of the hon'ble

Supreme Court in the case of Noorduddin Vs. Dr. K.L. Anand

reported in (1995) 1 SCC 242 at paragraph Nos.8 and 9 has

held as under:

''8. Thus, the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree- holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme

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of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution.

9. Adjudication before execution is an efficacious remedy to prevent fraud, oppression, abuse of the process of the court or miscarriage of justice. The object of law is to mete out justice. Right to the right, title or interest of a party in the immovable property is a substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right.

The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Any weakening like in the judicial process would rip apart the edifice of justice and create a feeling of disillusionment in the minds of the people of the very law and courts. The rules of procedure have been devised as a channel or a means to render substantive or at best substantial justice which is the highest interest of man and almameter (sic) for the mankind. It is a foundation for orderly human relations. Equally the judicial process should never become an instrument of oppression or abuse or a means in the process of the court to subvert justice. The court has, therefore, to wisely evolve its process to aid expeditious adjudication and would preserve the possession of the property in the interregnum based on factual situation. Adjudication under Order 21, Rules 98, 100 and 101 and its successive rules is sine qua non to a finality of the adjudication of the right, title or interest in the immovable property under execution.''

(Emphasis supplied)

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8. This Court in the case of K. Gajendran Vs. Smt.

Munilakshmi and others in W.P.No.9566/2011 decided on

11.04.2011 has held as under:

''It is the contention of the petitioner that the court has not considered the existence of prima facie case for holding an enquiry. Therefore the order is bad in law. The contention of the petitioner is untenable. The proceedings under order 21 Rule 97 CPC is in the nature of a suit which calls for determination of point on issue on the basis of the pleadings and mandatorily allowing the parties to adduce oral and documentary evidence. The disposal of IA No.4 and 5 only on the basis of affidavit averment and to consider the existence of prima facie case is not the correct procedure for determination of application filed under order 21 rule 97 of CPC. The order of the trial court is sound and proper does not call for interference. Accordingly the petition is dismissed.''

9. Keeping in mind the enunciation of law laid down in the

aforesaid decision and taking note of the scope of Order XXI

Rule 97 read with Section 101 of CPC, I am of the considered

view that the Trial Court is required to consider the applications

filed by the petitioner afresh on merits and in accordance with

law.