Karnataka High Court
Mohammad Akram vs Bhaurao And Anr on 7 June, 2022
Author: S. Vishwajith Shetty
Bench: S. Vishwajith Shetty
1 W.P.No.201266/2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE S. VISHWAJITH SHETTY
WRIT PETITION No.201266/2022 (GM-CPC)
BETWEEN
Mohammad Akram
S/o Mohammad Khaja Mashyalkar,
Age: 58 years, Occ: Business & Secretary
Of Motor lines Association, Vijayapura
R/o Station by pass road,
Near APMC, Vijayapur-586101.
...Petitioner
(By Sri. Liyaqat Fareed Ustad, Advocate)
AND
1. Bhaurao S/o Eknath bandi,
Age: 83 years, Occ: Agriculture,
R/o Shikar Khana,
Vijayapur-586101.
2. Shabbir S/o Babusab Byakod,
Age: 48 years, Occ: Scrap & Hotel Business,
R/o: Rahim Nagar, Bagawan Colony,
Vijayapur-586101.
...Respondents
2 W.P.No.201266/2022
This Writ Petition is filed under Article 227 of the
Constitution of India, praying to issue the writ in nature of
certiorari and quash the order dated 01.06.2022 passed by
the Court of IVth Additional Civil Judge & JMFC at Vijayapura
in EX C. 27/2022, vide Annexure-E in respect of IA No.II &
consequently allowed the IA No.1 application filed U/o XXI
Rule 97, 99, 103 & U/O 1 Rule 10 (2) R/w Section 151 of CPC
and permit the petitioner to implead in the above execution
proceedings and etc.
This petition coming on for preliminary hearing this
day, the court made the following:
ORDER
The petitioner being aggrieved by the order dated 01.06.2022 passed by the IV Additional Civil Judge and JMFC at Vijayapur in Execution Petition No.27/2022 insofar as it relates to rejection of his application filed under Order 21 Rules 97, 99, 103 and under Order 10(2) read with Section 151 of CPC, has preferred this writ petition with a prayer to quash the said order.
2. Respondent No.1 herein had filed O.S.No.67/2015 before the Court of IV Additional Civil Judge and JMFC at Vijayapur (hereinafter referred to as 'the Trial Court') as against the respondent No.2 herein 3 W.P.No.201266/2022 seeking for a decree of possession of the suit schedule property. The said suit was decreed vide judgment and decree dated 25.08.2021 and undisputedly, the said decree has attained finality. Respondent No.1 has now filed E.P.No.27/2022 for execution of the said decree. In the said proceedings, the petitioner herein has filed an application under Order 21 Rules 97, 99, 103 and under Order 10(2) read with Section 151 of CPC with a prayer to implead him as respondent No.2 and consider his objections for execution of the decree passed in O.S.No.67/2015.
3. It is the case of the petitioner in the said application that M/s. Motor Lines Association, Vijayapur (for short 'Association') had earlier entered into an agreement for sale in respect of the suit schedule property with respondent No.1 herein and since he had not executed the registered sale deed, the Association had filed a suit for specific performance, which was 4 W.P.No.201266/2022 dismissed by the Trial Court and confirmed by the first appellate Court and as against the same, the Association has preferred regular second appeal before this Court, which is pending consideration. In the mean while, since respondent No.1, who allegedly is the vender of the Association has obtained a decree for possession and has filed an execution petition. The petitioner, who claims to be the Secretary of the Association has field the present application in his individual capacity and sought to be impleaded in the execution proceedings. The Trial Court vide the order impugned has dismissed the said application and being aggrieved by the same, the petitioner has preferred this writ petition.
4. The learned counsel for the petitioner contends that since there is a suit for specific performance filed by the Association in respect of the very same property, the petitioner is required to be heard in the mater and the Trial Court without 5 W.P.No.201266/2022 adjudicating the application has erred in dismissing the application. He submits that the Trial Court has dismissed the application on the very same day after receiving the same and no reasons have been assigned by the Trial Court for rejection of the application.
5. Undisputedly, the suit for specific performance in respect of the land in question has been filed by the Association against respondent No.1 herein. If respondent No.1 herein who is the vender of the said Association is granted possession of the suit schedule property, the Association will not be effected in any manner. No prejudice would be caused to the case of the Association in the event of its vendor being put in possession of the land, which is the subject of the suit for specific performance. Further, undisputedly, the suit for specific performance is between the Association and respondent No.1 herein, the application under Order 21 Rules 97, 99, 103 and under Order 10(2) read with 6 W.P.No.201266/2022 Section 151 of CPC has not been filed by the Association but it is filed by the petitioner, who claims to the Secretary of the Association. A reading of the cause title would go to show that the said application has been filed by the petitioner in his personal capacity and not on behalf of the Association, which admittedly is a registered body.
6. Under the circumstances, since the petitioner has not made out any prima facie case to implead him in his individual capacity in the execution case, the Trial Court has rightly rejected the application. I find no illegality or infirmity in the said order of the Trial Court. Accordingly, I decline to entertain the petition.
Accordingly, the writ petition stands dismissed.
Sd/-
JUDGE Srt CT-SMP