IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.31605/2014(GM-CPC) BETWEEN:
C.KRISHNAN S/O CHINNATHAMBI AGED ABOUT 64 YEARS R/AT NO.31, INDIRA GANDHI STREET 7TH CROSS, II MAIN, UDAYANAGAR BANGALORE – 560 016 …PETITIONER (BY SRI P.H.VIRUPAKSHAIAH, ADVOCATE) AND :
T.C.SUBRAMANIAN S/O CHINNAPPAN AGE : MAJOR R/AT NO.51/3/213, NEW KARKANA STREET, THIRUVANNAMALAI TAMIL NADU – 606 601 …RESPONDENT (BY SRI H.R.ANANTHAKRISHNA MURTHY, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER VIDE ANNEXURE-F DATED 31.07.2012 PASSED BY THE LEARNED XIX ADDITIONAL CITY CIVIL JUDGE, BANGALORE (CCH-18) IN EXE.NO.1369/2007.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The judgment debtor in EP.No.1369/2007 on the file of City Civil Court, Bengaluru, has come up in this writ petition impugning the order dated 31.7.2012 vide Annexure-F, which is in allowing the application filed by the decree holder in the said proceedings for attachment under Section 151 r/w Order 21 Rule 54 of CPC.
2. Brief facts leading to this writ petition are as under:
The respondent herein is said to be the holder of judgment and decree for recovery of a sum of Rs.2,31,200/- against the petitioner herein pursuant to a judgment and decree passed in OS.No.117/2006 on the file of the Principal Subordinate Judge, Tiruvannamalai, Tamil Nadu State. Subsequently, he has got the said decree transferred to the jurisdiction of City Civil Court, Bengaluru and is pursuing the same for recovery of money due to him under the said judgment and decree in EP.No.1369/2007 on the file of City Civil Court, Bengaluru, where it is seen that there was objection to the execution petition by PNB Housing Finance Limited on the premise that said Bank has a charge over the property in question. In this background, an application filed by the said Bank under Order 21 Rule 97 of CPC was decided by order dated 24.4.2009 (in the cause title the date of order is mentioned as 25.4.2009), where the Executing Court has observed the right of respondent herein, who was decree holder in aforesaid execution proceedings, which reads as under:
“Objector is at liberty to take necessary steps under the Securitization Act and after auction if any surplus amount remains in the hands of the Objector, Decree holder is at liberty to create charge.”
3. It is seen that pursuant to said order dated 24.4.2009, the respondent herein has filed an application seeking attachment of very property on the basis of observation made by the Executing Court in its order dated 24.4.2009. The said application of the respondent herein was allowed by order dated 31.7.2012 in attaching the very same property in favour of respondent herein in pursuance to the earlier order passed in the pending Ex.P.1369/2007 for satisfying the judgment and decree obtained by the decree holder/respondent herein. The said order is sought to be challenged by the petitioner in this proceedings.
4. In the meanwhile, it is also seen that on the very same day i.e., on 31.7.2012 PNB Housing Finance Limited, the objector in the afore said execution proceeding, has also filed an application in IA.I under Section 151, CPC in the very same proceedings which is under Order 21 Rule 54 of CPC. Therefore, this Court is of the opinion that challenge to the order impugned cannot be entertained, inasmuch as the application of the objector will have to be decided on its merits. It is after satisfying the amount due to the objector in the said proceedings, the decree holder in the said proceedings, who is respondent herein would be entitled to recover the amount. In any event, the petitioner herein cannot take advantage of the dispute between the objector and decree holder, to stall the sale of said property for realization of the dues to the objector and as well as respondent – decree holder. As he has already suffered a decree against the respondent herein in a suit filed in Tiruvannamalai Court, question of re-considering the same and also the right of the objector in execution proceedings does not arise for re-consideration in this writ proceedings.
With such observations, this writ petition is dismissed.
Sd/- JUDGE nd/-