IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.47200 OF 2015 (GM-CPC) BETWEEN:
SRI.M.THIMMEGOWDA S/O MUTTEGOWDA AGED ABOUT 68 YEARS PROP.SURESH BAR AND RESTAURANT NO.281, CHICKPET MAIN ROAD BANGALORE-560053 (BY SRI.VIVEK HOLLA, ADVOCATE … PETITIONER FOR SRI.SANTOSH S.GOGI, ADVOCATE) AND:
1. SMT.R.KRITHIKA DEVI D/O LATE T.G.RAGHAVENDRA AGED ABOUT 45 YEARS RESIDING AT NO.14, NORTH VELI ST., MADURAI-625 001 2. SRI.T.G.SUBHAKAR S/O LATE T.K.GOPAL CHETTY AGED ABOUT 68 YEARS RESIDING AT NEW NO.21 (OLD NO.12) 11TH A CROSS, VYALIKAVAL EXTN., BANGALORE CITY-560003 3. SRI.T.G.GIRIKUMAR S/O LATE T.K.GOPAL CHETTY AGED ABOUT 57 YEARS RESIDING AT PARSEE LAYOUT, VYALIKAVAL EXTN., BANGALORE CITY ALSO AT 20/1, TANK BUND ROAD, BRINDAVAN NAGAR SBM COLONY, MATHIKERE BANGALORE-560090 4. SRI.NIRMALA V. JAIN S/O LATE VIJAYRAJ JAIN AGED ABOUT 45 YEARS RESIDENT OF NO.H-1303 ETA GARDENS BINNYSTON GARDEN NO.9 MAGADI ROAD BANGALORE-560023 5. SRI.KISHOR KUMAR S/O LATTE UTTAIN CHAND AGED AOBUT 48 YEARS RESIDING AT NO.50 APPU ROAD MAIN ROAD 6TH MAIN, CHAMARAJPETE BANGALORE-560018 … RESPONDENTS (BY SRI. SUMANTH L.B., ADVOCATE FOR C/R4 & 5) (BY SRI.PRADEEP S/ SAWKAR, ADVOCATE FOR R3) (VIDE ORDER DATED 13.07.2018, R2 H/S) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN F.D.P.NO.28/2002, ON THE FILE OF XI ADDL.CITY CIVIL JUDGE & SESSIONS JUDGE, BANGALORE AND TO QUASH THE ORDER DT.15.10.2015 (ANNX-E) IN F.D.P.NO.28/2002, ON THE FILE OF XI ADDL.CITY CIVIL JUDGE & SESSIONS JUDGE, BANGALORE BY DISMISSING THE APPLICATION AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Sri Vivek Holla, for Sri Santosh S.Gogi, learned counsel for the petitioner.
Sri G.R.Mohan, learned counsel for respondent No.1.
Sri Pradeep S.Sawkar, learned counsel for respondent No.3.
Sri Sumanth L.B., learned counsel for caveator – respondents 4 and 5.
2. Petition is admitted for hearing. With the consent of the parties, same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner inter alia has assailed the validity of the order dated 15.10.2015 passed by the Executing Court by which delivery warrant has been directed to be issued against the petitioner who is admittedly the tenant in respect of premises in question.
4. When the matter was taken up today, learned counsel for the petitioner submitted that petitioner is tenant in respect of the premises in question and in final decree proceedings, no order can be passed directing his dispossession. It is further submitted that the Executing Court could only have directed delivery of symbolic possession.
5. On the other hand, learned counsel for the respondents have fairly not disputed the aforesaid proposition and have invited the attention of this Court to Order XXI Rule 96 CPC.
6. Learned counsel for the petitioner fairly submitted that in fact the Executing Court ought to have taken recourse to the procedure prescribed under Order XXI Rule 96 CPC.
7. In view of the submissions made and bearing in mind the provisions contained in Order XXI Rule 96 CPC, the impugned order dated 15.10.2015 is hereby quashed and further the Executing Court is granted liberty to proceed in the matter in accordance with Order XXI Rule 96 CPC.
Accordingly, writ petition is disposed of.
Sd/- JUDGE PKS