IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY WRIT PETITION No. 30419 OF 2015 (HRC) BETWEEN SRI T.GOPAL S/O LATE T MEDA GAVAIAH SETTY AGED ABOUT 62 YEARS R/AT NO.536/11, 2ND FLOOR KOLLA COMPLEX, AVENUE ROAD BANGALORE – 2. …PETITIONER (BY SRI N.MANOHAR, ADVOCATE) AND 1. SRI K.K. SHEKAR S/O LATE K S KRISHNAN AGED ABOUT 58 YEARS R/AT M/S SANKAR SILK HOUSE KOLLA COMPLEX, AVENUE ROAD BANGALORE – 2.
2. SMT.N.LAKSHMI GUPTHA W/O V.NAGARAJ GUPTHA ADVOCATE NO.157, 11TH CROSS, NRUPTHUNGA NAGAR NGEF LAYOUT, NAGARABHAVI ROAD BANGALORE – 72 … RESPONDENTS (BY SRI GOWTHAM DEV C.ULLAL, ADVOCATE FOR R1; SRI R.RAJU GUPTA, ADVOCATE FOR R2) THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 23.03.2015 PASSED BY LEARNED CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, VIDE ANNEXURE-B, IN EX-NO.1945/2014 AND ALLOW THE APPLICAION AND PETITION TO CONTEST MATTER BEFORE TRAIL COURT AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER In this writ petition, the petitioner has prayed for a writ in the nature of certiorari quashing the order dated 23.03.2015 passed by the Chief Judge, Court of small Causes at Bangalore in Ex.case No.1945/2014 and to allow the application and the petition and to contest he matter.
2. The petitioner filed application under Order XXI Rule 96 to 101, r/w 151 of C.P.C. and obstructed for the execution of the decree and it is the case of the petitioner the he is in possession of the suit schedule property for the last 12 years. Without he being made a party in the proceedings either before the Executing Court or in the suit and without giving an opportunity Decree holder and Judgment Debtor have obtained decree. Hence he is before this Court in this writ petition.
3. Learned counsel for the petitioner submits that when the application is filed under the provisions referred above the Executing Court should have examined the application filed by the objector and without doing so the executing Court has rejected the application filed under Order XXI Rule 96 to 101 of CPC. He further submits that Executing Court has referred the fact of possession of 12 years by the petitioner which was also admitted by the Judgment Debtor which is discussed in paragraph 3 of the order. When such admission is made by the Judgment Debtor that the objector is in possession it is deemed that the petitioner is in possession of the property. Hence the application filed by the petitioner under the said provision is valid and it should have been considered by Executing Court and he further submitted that when some piece of document or evidence is placed on record to show that the petitioner is in possession of the property in question that aspect has to be examined by the Executing Court by considering the application filed by the petitioner. Learned counsel submits that the Executing Court has committed an error by rejecting the said application. Hence, the learned counsel requests to consider the prayer made by the petitioner to set aside the order and to remand the matter with the direction to the Executing Court to examine the application filed by the petitioner under the said provision of C.P.C.
4. Learned counsel for the respondent submits that except filing the application under the provision referred to above, the petitioner has not produced any exhibits or any piece of evidence or documents to show that the petitioner is in possession for the last 12 years before the Court below. He further submits that for the rent collected by the respondent there is no evidence and the petitioner has not produced any proof of material to show that he had paid the rent or deposited the rent. If at all it is the case of the petitioner he should have produced the evidence through which mode he has paid the rent by cheque or by cash or by some other mode. He has failed to prove the same. Unless such documents, evidence or specific pleadings, it is not for the Executing Court to examine the application filed by the petitioner. Under these circumstances, the writ petition fails and it is accordingly rejected.
Sd/- JUDGE HR