IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.6352 OF 2017 (GM-CPC) & WRIT PETITION NO.6732 OF 2017 (GM-CPC) BETWEEN:
SRI. C.RUDRAIAH, S/O DHARMARAJ, AGED ABOUT 51 YEARS, RESIDING AT NO.42, 9TH CROSS, SWIMMING POOL EXTENSION, MALLESHWARAM, BENGALURU – 560 003.
PRESENT ADDRESS:
NO.14, 11TH CROSS, SWIMMING POOL EXTENSION, MALLESHWARAM, BENGALURU – 560 003.
... PETITIONER (BY SRI. BHADRINATH.R, ADVOCATE) AND:
1. THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, VIKAS SOUDHA, BENGALURU – 560 001.
2. THE BRUHATH BENGALURU MAHANAGARA PALIKE, REPRESENTED BY ITS COMMISSIONER, N.R.SQUARE, BENGALURU – 560 002.
3. THE KARNATAKA SLUM DEVELOPMENT BOARD, NO.55, RISALDAR STREET, SESHADRIPURAM, BENGALURU – 560 001. REPRESENTED BY ITS COMMISSIONER.
... RESPONDENTS (BY SRI. K.V.MOHAN KUMAR, ADVOCATE FOR R2; GOVERNMENT ADVOCATE FOR R1 SERVED; SMT. B.P.RADHA, ADV0CATE FOR R3) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH IMPUGNED ORDER DATED 09.01.2017 IN EXECUTION PETITION NO.2857/2013 PASSED BY THE 19TH ADDITIONAL CITY CIVIL JUDGE, BENGALURU VIDE ANNEXURE-A TO THE WRIT PETITION AND CONSEQUENTLY ALLOW EXECUTION PETITION NO.2857/2013 FILED BY THE PETITIONER ON THE FILE OF 19TH ADDITIONAL CITY CIVIL JUDGE AND SESSIONS JUDGE, BENGALURU CITY; DIRECT THE R-2 ALLOT THE ALTERNATIVE SITE AS PER MEMO OF UNDERTAKING GIVEN BY THE R-2 AND ORDER DATED 17.06.1999 IN EX.PET.NO.1019/1997 PASSED BY THE XXVII ADDITIONAL CITY CIVIL JUDGE AT BENGALURU CITY VIDE ANNEXURE G AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the decree holder in Execution Petition No.2857/2013 is invoking the writ jurisdiction of this Court for assailing the order dated 09.01.2017, a copy whereof is at Annexure-A, made by the XIX Additional City Civil & Sessions Judge, Bengaluru, whereby, the Execution Petition is dismissed for want of certified copy of judgment & decree.
2. After service of notice, respondents having entered appearance through their counsel resist the Writ Petition inter alia contending that it is a cardinal principle of law of execution that the production of judgment & decree is a sine qua non for maintaining the Execution Petition and this having not been done, impugned order cannot be faltered.
2. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court grants indulgence in the matter because:
a. admittedly, the petitioner is a decree holder and he had put the decree in Ex.No.2857/2013 by producing a photostat copy thereof; it is true that ordinarily execution lies only when the certified copy of the decree is produced along with the petition; for some reason although no such certified copy was produced, it is not in dispute that the petitioner had produced a photostat copy of the decree; and b. the Executing Court being a Court of justice too, could not have dismissed the Execution Petition on the sole ground that the certified copy of the decree was not produced especially when the issue as to the authenticity of the decree in question had not cropped up, the photostat copy of the decree being on record. At the most the learned Judge of the Court below ought to have directed by a peremptory order or the like for the production of certified copy of the decree; this having not been done, there is error of law and justice warranting indulgence of this Court.
In the above circumstances, these Writ Petitions succeed; impugned order is set at naught; the matter is remanded to the Executing Court for consideration afresh; liberty is reserved to the petitioner to produce the certified copy of the judgment & decree before the Executing Court forthwith; all contentions of the parties are kept open.
The parties through their counsel are put to notice to appear before the Executing Court on 05.11.2019 without any further notice.
The Executing Court is requested to accomplish the execution proceedings preferably within a period of nine months.
No costs.
Sd/- JUDGE DS