Karnataka High Court
Mr. Ali Ahamed vs Sri. V E Venugopal on 22 March, 2017
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MARCH 2017
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NO.11909/2017 (GM-CPC)
BETWEEN:
MR. ALI AHAMED
AGED ABOUT 32 YEARS
S/O LATE SARVER SAHEB SYED,
PRESENTLY R/AT NO 11,
GROUND FLOOR, AYYAPPANAGAR,
2ND BLOCK, 5TH MAIN
HOODI, K R PURAM HOBLI
BENGALURU 560016
... PETITIONER
(BY SRI. H.S.SANTHOSH, ADV. FOR
SRI NARAYANA, ADV.)
AND
1. SRI. V. E. VENUGOPAL
AGED ABOUT 55 YEARS
S/O SRI V G EALUMALAI
R/AT NO 318 MBK NILAYA,
2ND CROSS, 32ND MAIN,
BTM FIRST STAGE,
BENGALURU - 560068
2. SRI B V SRINIVAS
S/O SRI B VENKATA RAO,
2
AGE ABOUT 53 YEARS,
R/AT NO 11, NISARGA,
5TH MAIN, HOODI
K R PURAM HOBLI,
BENGALURU 560016
... RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD.25.2.2017 VIDE ANNEX-A ON
I.A.NO.14 PASSED BY THE LEARNED XI ADDL. CITY
CIVIL AND SESSIONS JUDGE, BANGALORE CITY IN
EX.NO.891/2009 AS ILLEGAL, ARBITRARY, ULTRA
VIRES AND UNSUSTAINABLE. AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The obstructor filed the present writ petition against the order dated 25.2.2017 passed by the learned XI Addl. City Civil & Sessions Judge, Bangalore allowing I.A.14 made in Exe.No.891/2009 and issued delivery warrant as prayed for in PF memo.
2. Respondent No.1 herein who is the plaintiff before the trial court filed O.S.890/2006 for the relief of specific performance against Sri.B.V.Srinivas-respondent 3 No.2 herein to enforce agreement of sale executed by him in the year 2006. After contest, the suit came to be decreed on 19.1.2009 directing respondent No.2 to execute registered sale deed in favour of respondent No.1 in terms of the agreement of sale. Respondent No.2 has not filed any appeal against the said judgment and decree passed by the trial court. Thereafter, the respondent No.1/decree holder-V.E.Venugopal filed Exe.891/2009 to execute the decree dated 19.1.2009 passed in O.S.890/2006 against the judgment debtor- B.V.Srinivas. The present petitioner had filed an application under Order 21 Rule 97 read with Section 151 of CPC before the trial court obstructing to execute the judgment and decree of the trial court. The trial court by an order dated 30.6.2015 dismissed the said application which was the subject matter of the appeal before this Court in RFA 1080/2015 filed by the present petitioner.
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3. This Court after hearing both the parties has dismissed RFA 1080/2015 as devoid of merits and thereafter the decree holder filed I.A.14 under Order 21 Rule 35 read with Section 151 of CPC in Exe.891/2009. The judgment debtor has not filed any objections. The trial court by the impugned order dated 25.2.2017 allowed I.A.14 and issued delivery warrant as prayed for in the PF memo. Aggrieved by the said order, the present writ petition is filed by the petitioner, who is the obstructor in Exe.891/2009.
4. I have heard the learned counsel for the petitioner.
5. The learned counsel for the petitioner/obstructor vehemently contended that the impugned order passed by the trial court allowing I.A.14 issuing delivery warrant is erroneous and contrary to the materials on record. He further contended that the trial court failed to notice that there was an interim order 5 against the decree holder in the suit filed by the petitioner and trial court ought to have noticed that the present execution petition came to be filed by the respondent No.1 after he tendering appearance in the suit filed by the petitioner much earlier and after being fully aware of the interim order of status-quo granted by the trial court in the said connected suit filed by the petitioner, which has now made absolute. He further submits that the suit filed by him in O.S.25365/2009 for declaration and injunction is still pending. If the impugned order is allowed to implement, the suit filed by the petitioner becomes infructuous. Therefore, he prays for allowing the petition by setting aside the impugned order.
6. In view of aforesaid submissions of the learned counsel for the petitioner, the only point that arises for my consideration in the present writ petition is: 6
"Whether the trial court is justified in allowing I.A.14 filed under Order 21 Rule 35 read with Section 151 of CPC filed by the decree holder.?"
7. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and perused the entire materials on record carefully.
8. It is undisputed fact that respondent No.1, who is the plaintiff in O.S.890/2006 filed for relief of specific performance to enforce the agreement of sale executed by respondent No.2 in the year 2006. After contest, suit came to be decreed on 19.1.2009. The defendant/respondent No.2 has not challenged the said decree and it has attained finality. It is not in dispute that the decree holder filed Exe.891/2009. The present petitioner, who was the obstructor in the said execution petition filed an application under Order 21 Rule 97 of CPC on the ground that he purchased the property under a registered sale deed from judgment debtor B.V.Srinivas 7 on 5.12.2008. The Executing Court after adjudication of the application and after hearing the parties, by an order dated 30.6.2015 rejected the application filed by the obstructor.
9. The present petitioner filed RFA 1080/2015 before this Court and this Court after hearing both the parties by judgment and decree dated 3.11.2015 dismissed the appeal and recorded a specific finding as follows:
"11. At this stage, learned Counsel appearing for the appellant / obstructor submits now the obstructor has sought for amendment permitting him to seek an appropriate relief of declaration. If that is so, it is open for the appellant to pursue his remedy in the said suit and that he cannot prevent the decree holder from executing the decree that he has obtained against the judgment debtor".
12. This Court and the Hon'ble Apex Court in the judgments cited supra have held that pendency of proceedings in respect of a 8 property itself is a notice to the purchaser of such property during the pendency of litigation in respect of said property. Therefore, there is no merit in the contention of the learned Counsel for the obstructor that agreement executed by the judgment debtor in favour of the decree holder being an unregistered agreement, the obstructor had no knowledge of the said agreement and he is a bonafide purchaser of the suit property.
13. Considering the above aspect of the matter, the Executing Court was justified in dismissing the application of the appellant."
10. Admittedly, the said judgment and decree passed by this Court made in RFA 1080/2015 has reached finality. It is also not in dispute that the decree holder filed I.A.14 under Order 21 Rule 35 read with Section 151 of CPC to issue delivery warrant against the obstructor or any persons/tenants in occupation of the schedule property to vacate the same and to deliver the suit schedule property to the decree holder as per the 9 decree dated 19.1.2009 made in O.S.890/2006. The said application was not at all objected by the judgment debtor. The trial court by impugned order has allowed I.A.14 and issued delivery warrant as prayed for in the PF memo .
11. In view of the provisions of Order 21 Rule 102 of CPC, the obstructor has no right to hold possession of the suit property and he is liable to be evicted so as to deliver the possession to the decree holder in terms of the decree and he is entitled to get possession free from all encumbrances. If the delivery warrant is not issued against the obstructor, he will be put to hardship and injury. The trial court considering the entire material on record passed the impugned order. The same is in accordance with law.
12. It is the contention of the learned counsel for the petitioner that the present petitioner filed O.S.25365/2009, suit for declaration and injunction 10 against the present decree holder and there is interim order of status quo in respect of suit property. Therefore, the executing court cannot proceed with issuing the delivery warrant. The said contention cannot be accepted for simple reason that admittedly the obstructor had purchased the suit property on 5.12.2008 from the judgment debtor during the pendency of the suit which is hit by the provisions of Section 52 of Transfer of Property Act and admittedly the suit came to be decreed on 19.1.2009 and the said judgment and decree passed in favour of the decree holder has reached finality. The obstructor has not challenged the said decree till today. Status quo passed by the trial court in the suit filed by the obstructor is only with regard to possession and not with regard to decree passed. The petitioner has not produced any material before this court regarding decree passed in O.S.890/2009 is stayed by any of the higher courts. It is also not in dispute that this court in RFA 1080/2015 has already confirmed the judgment and 11 decree passed by the trial court by dismissing the appeal filed by the obstructor.
13. The act and conduct of the petitioner, in obstructing to execute the judgment and decree which has reached finality even though he purchased the suit property during the pendency of the suit is nothing but daring raid on the court which cannot be encouraged at this stage.
14. For the reasons stated above, the point raised in the writ petition has to be answered in the affirmative holding that the trial court is justified in allowing I.A.14. The petitioner has not made out any prima-facie case to interfere under supervisory writ jurisdiction of this Court.
15. Accordingly, the writ petition is dismissed.
Sd/-
JUDGE DM