IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.51697 OF 2014 (GM-CPC) BETWEEN:
1. SMT. C.L. PRAMEELA AGED ABOUT 66 YEARS W/O C. LAKSHMAIAH SETTY NO.11-4,-29C RAMAR KOIL STREET CHITTOR, ANDHRA PRADESH.
2. VIJAYA LAKSHMI AGED ABOUT 60 YEARS W/O B.K. GANGARAJ RESIDING AT NO.127/2, “SKANDA NILYAYA” GANESH MANDIR ROAD II BLOCK, THYAGARAJANAGAR BANGALORE-28.
3. T. GAYATHRI AGED ABOUT 54 YEARS W/O T. THAYAMANAVAN RESIDING AT NO.70, FLAT NO.BT-3 G.R. GRAND RESIDENCY, KANAKAPURA ROAD, J.P. NAGAR VI PHASE BANGALORE-78.
4. PADMA KODANDARAM AGED ABOUT 64 YEARS W/O L.M. KODANDARAMA SETTY RESIDING AT NO.1554, 5TH CROSS 2ND BLOCK, BANASHANKARI I STAGE BANGALORE.
(By Mr. K.S.NAGARAJA RAO, ADV.) ... PETITIONERS AND:
1. B. NAGARAJA GUPTA AGED ABOUT 70 YEARS S/O LATE B.L. BETTAIAH SETTY NO.108, GROUND FLOOR 1ST MAIN, 3RD CROSS, ARIKERE MICO LAYOUT I STAGE BANNERGHATTA ROAD BANGALORE-76.
2. B. LAKSHMANA GUPTA AGED ABOUT 62 YEARS S/O LATE B.L. BETTAIAH SETTY RESIDING AT NO.511 2ND CROSS, II PHASE 6TH BLOCK, BSK III STAGE HOSAKEREHALLI, BANGALORE-85.
3. B. KRISHNA MURTHY AGED ABOUT 58 YEARS S/O LATE B.L. BETTAIAH SETTY RESIDING AT NO.410 7TH MAIN, 50 FEET ROAD HANUMANTHANAGAR BANGALORE-560 019.
4. B. SRIDHAR MRUTHY AGED ABOUT 56 YEARS S/O LATE B.L. BETTAIAH SETTY RESIDING AT NO.11, ARSHITHA APARTMENTS, KALAPPA BLOCK GANDHIBAZAR, BANGALORE-4.
(By Mr. GIRIDHAR S.V. ADV., FOR R1 & R2 R4 SERVED … RESPONDENTS V/O DTD:28/9/2018 SERVICE OF NOTICE IN R/O R3 HELD SUFFICIENT) - - -
This Writ Petition is filed under Articles 226 & 227 of the constitution of India, praying to call for records from the file of the Hon'ble XXII Addl. City Civil & Sessions Judge, Bangalore in Ex. No. 2371/2012. Quash the Order dated 17.9.2014 passed by the Hon'ble XXII Addl. City Civil & Sessions Judge, Bangalore in Ex. Pet. No. 2371/2012 at Ann-A by directing delivery of actual possession of the first floor of the premises bearing no. 17 [formerly no.111/2] situated in 5th cross, New Kalasipalyam layout, Bangalore by the R-3 to th petitioners/ decree holders in execution petition no. 2371/2012 and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ group this day, the Court made the following:-
ORDER Sri.K.S.Nagaraja Rao, learned counsel for the petitioners. Sri.Giridhar S.V., learned counsel for the respondent Nos.1, 2 and 4. None for the respondent No.3.
2. The petition is admitted for hearing. With consent of the parties, the same is heard finally.
3. In this petition under 227 of the Constitution of India, the petitioners have assailed the validity of the order dated 17.09.2014 passed by the Executing Court, by which the Executing Court has directed delivery of symbolic possession of the first floor of the premises in question. In order to appreciate the petitioners’ challenge to the impugned order, few facts need mention which are stated infra.
4. The petitioners, some time in the year 1996, filed a suit seeking relief of partition. The aforesaid suit was decreed in favour of the petitioners by judgment and decree dated 28.11.2006. Being aggrieved, the respondents filed an appeal namely RFA No.2411/2006. During the pendency of the aforesaid regular first appeal, the parties entered into a compromise and agreed to sell B schedule property by way of public auction and respondent Nos.1 to 4 agreed to retain A schedule property by paying consideration to the petitioners and other sisters. The petitioners have purchased B schedule property in an auction by depositing the bid amount on 30.05.2011 and the sale certificate was issued in their favour in respect of the property in schedule B. Thereafter, on 05.09.2012, the petitioners filed execution petition for issuance of delivery warrant directing them to deliver the vacant possession. The Executing Court, however by an order dated 17.09.2014, directed delivery of symbolic possession of the first floor of the premises in question and did not order for actual possession. In the aforesaid factual background, the petitioners have approached this Court.
5. Learned counsel for the petitioners submitted that respondent No.3 has not produced any material even in final decree proceedings that he is in possession of first floor as tenant and in the final decree proceedings, a direction has been issued to the respondent Nos.1 to 4 to quit and deliver vacant possession of the B schedule property. Therefore, the Executing Court was under a legal obligation to deliver vacant possession of the B schedule property and could not have traveled beyond the decree.
6. On the other hand, learned counsel for the respondent Nos.1, 2 and 4 have submitted that they have handed over the possession of ground floor of B schedule property and they are not in possession of first floor of the property. However, learned counsel for the respondent Nos.1, 2 and 4 has invited the attention of this Court to the provisions under Order XXI Rule 36 of the Code.
7. I have considered the submissions made on both sides and perused the record. In the petition which has been filed by the petitioners under Order XXI Rule 11(2) of the Code, which is duly supported by an affidavit, filed by the petitioners, it has been asserted that the judgment debtors are in possession of the suit property and the judgment debtors are liable to deliver the vacant possession of the suit property to the decree holders. In the final decree proceedings also, a direction has been issued in the following terms:
“It is directed to respondents 1 to 4 to quit and deliver vacant possession of ‘B’ schedule property to the petitioners 2 to 5 before they withdraw the amount of their share pertaining to ‘B’ schedule property.”
8. Thus, it is evident that even in final decree proceedings, respondent Nos.1 to 4 have been directed to quit and deliver vacant possession of ‘B’ schedule property to petitioner Nos.2 to 5 before the amount of their share pertaining to the property in question.
9. From perusal of the order passed in the final decree proceedings, it is evident that respondent No.3 has not produced any material in final decree proceedings to show that he is in possession of the first floor as a tenant. The Executing Court, in a cryptic and cavalier manner, has relied on the statement of the judgment debtors and without holding any enquiry and without assigning any reasons, has directed issuance of delivery warrant for symbolic possession. There is no material on record to show that the respondent No.3 is in possession of the first floor as tenant. Therefore, the provisions of Order XXI Rule 36 of the Code have no application to the fact situation of the case. It is well settled in law that the Executing Court cannot travel beyond the decree. The impugned order therefore suffers from error apparent on the face of record and cannot sustain in the eye of law. Accordingly, the same is quashed and set aside. The Executing Court is directed to issue warrant for delivery of vacant possession of the first floor of the premises in question to the petitioners.
Accordingly, the writ petition is allowed.
Sd/- JUDGE RV