Karnataka High Court
Thammanna vs Mrs Nasreen Asif on 20 August, 2014
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WP.Nos.39635-39636/2014
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE MR. JUSTICE H.G.RAMESH
WRIT PETITION NOS.39635-39636/2014 (HRC)
BETWEEN:
THAMMANNA
S/O LATE A.H. MANJUNATH
AGED ABOUT 37 YEARS
RESIDING AT OLD NO.12
NEW NO.16, GROUND FLOOR
5TH MAIN ROAD
JAYAMAHAL EXTENSION
BANGALORE - 560 046 ... PETITIONER
(BY SRI PADMANABHA MAHALE, SR. COUNSEL FOR
SRI SAMPATH KUMAR M, ADVOCATES)
AND:
1. MRS. NASREEN ASIF
W/O MR. SYED ASIF
AGED ABOUT 47 YEARS
RESIDING AT NO.5
ROCK HOUSE, 4TH FLOOR
1ST MAIN ROAD
JAYAMAHAL EXTENSION
BANGALORE - 560 046
2. MR. A.H. VISHWANATH
S/O LATE HUTCHE GOWDA
AGED ABOUT 66 YEARS
GALIGEKERE POST
HOSAHAGRA HOBLI
K.R.NAGARA TALUK
MYSORE DISTRICT - 570 004 ... RESPONDENTS
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WP.Nos.39635-39636/2014
THESE WRIT PETITIONS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE ENTIRE RECORDS PERTAINING TO THE EXECUTION
PETITION BEARING NO.922/2014 ON THE FILE OF THE PRL.
SMALL CAUSES JUDGE AT BANGALORE AND SET ASIDE THE
ORDER DTD.11.8.2014 PASSED IN RESPECT OF THE
APPLICATION FILED BY THE PETITIONER UNDER ORDER 21 RULE
97 & 98 READ WITH SECTION 151 OF CPC, IT IS MARKED AS
ANNEX-K AND DIRECT THE HON'BLE PRL. SMALL CAUSE JUDGE
AT BANGALORE TO HOLD ENQUIRY IN RESPECT OF APPLICATION
FILED UNDER ORDER 21 RULES 97 & 98 READ WITH SECTION
151 OF CPC IN EXECUTION CASE NO.922/14 PENDING ON THE
FILE OF PRL. SMALL CAUSES JUDGE, BANGALORE ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
H.G.RAMESH, J. (Oral):
1. These writ petitions by the objector are directed against the order dated 11.08.2014 passed by the Executing Court in Ex.Case No.922/2014. By the impugned order, the Executing Court has dismissed the application filed by the petitioner under Order 21 Rules 97 & 98 r/w Section 151 of the CPC with costs of Rs.5,000/-.
2. I have heard Sri Padmanabha Mahale, learned Senior Counsel appearing for the petitioner and perused the impugned order.-3-
WP.Nos.39635-39636/2014
3. Learned Senior Counsel, in support of the writ petitions, relied on a judgment of this Court in Sri Venkatarayappa vs. Sri G.Muniyappa & Ors. [ILR 2008 KAR 3553] and referred to Order 21 Rules 97, 98 & 101 of the CPC.
4. As could be seen from the impugned order, the eviction order dated 1.3.2014 passed in HRC No.174/2013 was put to execution in Ex.Case No.922/2014. The aforesaid eviction order was obtained against respondent No.2 (JDR) who is admittedly a former Member of Parliament. He appeared before the trial court and was represented by an Advocate. It is stated that he had also filed objections to the eviction petition.
5. The petitioner-objector is stated to be none other than his brother's son. The Executing Court, on a detailed consideration of the matter, has found that the judgment debtor had set up the petitioner who is his brother's son to defeat the fruits of the eviction decree and that the application filed by the petitioner was an abuse of the process of Court. It is relevant to refer to the following -4- WP.Nos.39635-39636/2014 reasoning of the executing court in the impugned order in dismissing the petitioner's application:
"11. ..................................................................... ....................................................... It is important to note that I have secured the original file in HRC No.174/2013 and in this HRC proceedings, the respondent who is an ex-member of parliament appeared through counsel and filed statement of objections before the Court and thereafter, did not proceed in the case and an eviction order has been passed and now the objector, who claims right, stating that he has been in possession of the property after the death of his grand mother. On perusal of Ex.P1 to P.17, they clearly go to show that legal heirs of original owner has sold the property in favour of the decree holder and thereafter, the katha has been changed in favour of the decree holder and the judgment debtor claims that the documents are created and this Court cannot go into the question as to whether the documents are created or not. The documents available in HRC case also disclose that notice issued against the judgment debtor was served on him and he gave reply also. On perusal of reply which is marked as Ex.P.17, it clearly discloses that he took the contention that after the demise of his mother Smt. Rammamma, his elder brother Manjunath was residing in the schedule premises and after his death, his son is residing in the aforesaid premises. It is further contended on the other hand that the name of the said judgment debtor is only exhibited in the premises in question for the purpose of correspondence and hence, it is clear that he has put his name plate in the building and if really hew was not residing in the schedule premises, what made him to put his name board in the said house is not explained by the objector and the objector has filed documents before the Court i.e., only electricity bills and water supply bills and those documents will not create any independent right in favour of objector as claimed by him and -5- WP.Nos.39635-39636/2014 there is not dispute that the original allottee was smt. Ramamma. After her death, it is the contention of the decree holder that the judgment debtor was in possession of the property and further, it is important to note that there is no dispute with regard to fact that the premises was in possession of the judgment debtor since the judgment debtor himself claims his name plate was put in the said building and claims only for communication purpose, it was put and this has to be proved and the present objector is none other than the nephew of the judgment debtor and the objector is claiming any right and that he claims possession of the property, he has not produced any documentary proof regarding the payment of rent after the death of original tenant Smt. Ramamma, he has paid the rent and no piece of paper is produced for having the objector paid the rent after the death of Smt. Ramamma, who is the grand mother of objector and it is claimed by the judgment debtor that his brother Manjunath was in possession and to prove the said fact, no evidence is placed before the Court and now the Objector has filed a Membership Card issued by the Cooperative Society and the said card does not bear any date and only address of the petition schedule premises is mentioned and no date is mentioned and there is no evidence to show as to on what date, the same was issued and here, it has to be noted that as I have already pointed out, the present Objector who is claiming right, who is none other than the nephew of the judgment debtor and claiming right and the judgment debtor is none other than his uncle and it is rightly pointed out by the counsel for the decree holder that on perusal of the endorsement made by the Bailiff, which clearly goes to show that when they went to execute the warrant, the present Objector made telephone to the judgment debtor and he contacted him over the phone and when they were in the process of executing the warrant, an Assistant Commissioner of Police by name Omkarapppa came there and caused obstruction in execution of the delivery warrant and thereafter, the present objector has -6- WP.Nos.39635-39636/2014 come up with the present application and on perusal of the application also, it is very bald, wherein, except claiming that the documents are created by the decree holder and he contended that the description of the property is different and on perusal of the schedule and also on perusal of the sale deed, there is no discrepancy as contended by the judgment debtor and as I have pointed out above, the objector is not claiming any independent right in respect of the petition schedule premises and no document is produced before the Court that either himself or his father was paying rent in favour of the original owner after the death of grand mother and admittedly, the objector claimed that the house was allotted in favour of Ramamma on rent of Rs.2,000/- and if really, they were in possession of the premises, they would have produced the documents before the Court regarding the payment of rent after the death of Ramamma and no documents are placed before the Court regarding the payment of rent either by objector or by his father and hence, it is a clear case of setting up of his brother's son by the judgment debtor and also judgment debtor categorically admits in his reply statement that name plate is put only for communication purpose and if he is not in possession of the property, what made him to put his board in the petition schedule premises has not been explained and he has also not contested the case when eviction petition has been filed against him and he is not a layman and he is an ex-member of parliament and he did not contest the case in HRC proceedings and now he has set up his brother's son as objector before the Court and the objector is also not claiming any independent right before the Court and having taken not of all these facts into consideration, the objector is not claiming any independent right in respect of the petition schedule premises and on the other hand, the decree holder has produced documents for having purchased the property and thereafter filed eviction petition against the judgment debtor under due process of law, she obtained an order of eviction before the Court, all -7- WP.Nos.39635-39636/2014 these materials discloses that it is nothing but an abuse of process of court by the judgment debtor by setting up his brother's son as an objector and hence, the application filed by the objector is liable to be dismissed with exemplary costs, as the objector has no independent right and he is claiming through his uncle and no document has been placed before the Court to show that he is having any independent right and hence, the application deserves to be dismissed without holding any enquiry as required for the reason that the objector is not claiming any independent right and he is the son of judgment debtor's brother and the judgment debtor has suffered an order of eviction and now he set up his brother's son as an objector and hence, I answer point No.1 in the negative".
(Underlining supplied)
6. I have examined the matter in the light of the judgment of this court relied on by the learned Senior Counsel in support of the writ petitions. In my opinion, on the facts of the case, the dismissal of the petitioner's application by the Executing Court on the ground that the petitioner was not claiming any independent right to the property cannot be said to be erroneous to warrant interference under the extraordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India. The writ petitions are accordingly dismissed. In view of -8- WP.Nos.39635-39636/2014 dismissal of the writ petitions, I.A.No.1/2014 also stands dismissed.
Petitions dismissed.
Sd/-
JUDGE hkh.