Karnataka High Court
Smt Shakunthala vs Smt. Arati Kamble on 7 February, 2020
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO. 51402 OF 2019 (GM-CPC)
BETWEEN:
SMT SHAKUNTHALA
AGED ABOUT 73 YEARS,
W/O T. MARKANDAIAH NAIDU,
R/A KODIVALA VILLAGE,
VIA ATHIMANJERIPET, PALLIPET TALUK,
TAMILNADU-626127.
(BENEFIT OF SENIOR CITIZEN NOT CLAIM)
... PETITIONER
(BY SRI. D R RAVISHANKAR, ADVOCATE)
AND:
1. SMT. ARATI KAMBLE
W/O SUNIL HAVANNAVAR,
AGED ABOUT 38 YEARS,
2. SUNIL HAVANNAVAR
S/O ASHOK HAVANNAVAR,
AGED ABOUT 40 YEARS,
R/AT NEW 8, OLD NO.54,
6TH MAIN, SARAKKI,
J P NAGAR, 1ST PHASE,
BENGALURU-560078.
3. V NARASIMHA
AGED ABOUT 59 YEARS,
S/O LATE VENKATASWAMY NAIDU,
R/AT NO.11, 11TH CROSS,
2ND MAIN ROAD, PADMANABHANAGAR,
BENGALURU-560070.
... RESPONDENTS
(BY SRI. KAMALESHWARA POOJARY, ADVOCATE FOR C/R1 &
R2;
NOTICE TO LRS OF R3 IS D/W
V.C.O DATED 27.01.2020)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDERS AT ANNEXURE-G PASSED BY THE LVI ADDL CITY
CIVIL AND SESSIONS JUDGE, BANGALORE IN EXECUTION
NO.4777/2018 ON IA NO. 5 DATED 25.11.2019.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Petitioner being the decree-holder in Execution No.4777/2018 is invoking the writ jurisdiction of this Court for assailing the order dated 25.11.2019, a copy whereof is at Annexure-G, whereby the learned Judge of the Executing Court having favoured respondent- obstructors application in I.A.No.5 has directed restoration of possession to them.
2. After service of notice, the respondent- obstructors 1 & 2 having entered appearance through their counsel, vehemently resist the writ petition making submission in justification of the impugned order.
2. Having heard the learned counsel for the parties and having perused the petition papers, reprieve needs to be granted to the petitioner for the following reasons:
(a) the obstructors having been dispossessed pursuant to judgment & decree put in execution had 3 made the obstruction application under Order XXI Rule 97 of CPC, 1908; during the pendency of the said application they had moved another application in I.A.No.5 dated 25.11.2019 seeking immediate restoration of possession of the property pending disposal of their obstructions; this the Judge of the Court below could not have favoured in view of the long settled position of law;
(b) the contention of the learned counsel for the obstructors that the possession having not been taken by the petitioner-decree holder from the judgment debtor, removal of the obstructors from the subject premises does not amount to their dispossession according to due process of law and therefore they should be presumed to be continued in the possession and consequently the impugned order cannot be faltered, is bit difficult to countenance at this stage; and,
(c) this court does not express any opinion either on facts or law urged by both the parties inasmuch as expression of one is likely to cast a shadow or light on the consideration of the obstructions of Respondent Nos.1 & 2 by the Court below in the execution proceedings; this apart, they have some flavour of mixed questions of law 4 and facts which the Court below has to decide, after holding enquiry.
In the above circumstances, this writ petition succeeds in part; the impugned order is set at naught; the Executing Court shall accomplish the trial and hearing of obstructors application filed under Order XXI Rule 97 within an outer limit of four weeks.
All contentions of the parties have been kept open. It is needless to mention that the observations made herein above being confined to the disposal of writ petition shall not influence the decision making on the obstructors application.
No costs.
Sd/-
JUDGE Snb/