IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 28536 OF 2019 (GM-CPC) BETWEEN:
SMT. REGINA I W/O AHAMED KHAN M, AGED ABOUT 48 YEARS, R/AT NO.30-H, 2ND CROSS, MAGADI ROAD, BANGALORE-560023 (BY SRI. MOHAMED KHAN A, ADVOCATE) AND:
1. SRI. G. RAMESH S/O LATE GNANOBA, AGED ABOUT 39 YEARS, R/AT NO.58, 6TH CROSS, SAMPANGI RAMNAGAR, BANGALORE-560027.
2. M G NARAYAN SA S/O LATE GANGADHAR SA, AGED ABOUT 53 YEARS, R/AT NO.44, 5TH CROSS MAIN ROAD, MAGADI ROAD, BANGALORE-560023.
… PETITIONER … RESPONDENTS (BY SMT. H V VASANTHALAKSHMI, ADVOCATE FOR R1; SRI. G S VENKAT SUBBARAO, ADVOCATE FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 13.03.2019 AT ANNEX-G PASSED BY THE PRINCIPAL CIVIL JUDGE (JR.DVN) BANGALORE RURAL DISTRICT, AT BANGALORE IN EXECUTION CASE NO.1/2016, ON I.A.NO.3.
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 Petition No.1/2016 is invoking the writ jurisdiction of this Court complaining against the execution proceedings being dragged on by the Judgment Debtor and the Obstructor who has bought the subject property pendente lite. The respondents have entered appearance through their counsel and resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, relief needs to be granted to the petitioner inasmuch as the Executing Court could not have posted the matter for consideration of the case of the 1st respondent herein who has structured his Obstruction to the execution on the ground that he has bought the property for valuable consideration and without notice. The pendente buyer of the property suffers the judgment & decree as if he is a Judgment Debtor in view of sec. 52 of the Transfer of Property Act, 1882, regardless of notice and his bona fide.
3. The provisions of Order XXI Rule 98 of CPC, 1908 are not invokable for obstructing the execution of a decree when the Obstructor is none other than the pendente buyer because of the prohibition enacted in Rule 102. Therefore the Executing Court could not have adjourned the matter for consideration of the version of the 1st respondent.
4. The contention of the 1st respondent-Obstructor that he has discharged the loan that had encumbered the subject property does not constitute a ground for obstructing execution; however, if the said loan is a charge, the same continues with the property and it is open to the 1st respondent to avail his remedy elsewhere.
In the above circumstances, this writ petition succeeds; the impugned order intending to hear the Obstructor ie., the 1st respondent is quashed; a direction issued to the learned Judge of the Executing Court to accomplish the execution proceedings so that the fruits of decree reach the hands of the victorious Decree Holder forthwith, if necessary by ordering the police assistance.
Learned Judge to report compliance to the Registrar General of this Court within three months.
Bsv Sd/- JUDGE