IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION Nos.75-78/2014 (GM - CPC) BETWEEN:
Smt. T.K. Nandini, D/o. Sri. T.P. Krishna Murthy, W/o. Sri. P.N. Kedarnath, Aged about 30 years, No.1096, 7th Cross, Banashankari II Stage, II Block, Bengaluru – 560 050. …Petitioner (By Sri. K. Suresh, Advocate) AND:
Sri. B.V. Venkatasubbaiah, S/o. Sri. B.S. Venkateshaiah, Aged about 92 years, No.1130, 8th Cross, Ashok Nagar, Banashankari I Stage, II Block, Bengaluru – 560 050.
Since deceased by his LRs 1 (a) Smt. B. V. Jamuna, Aged about 58 years, D/o. late B.V. Venkatasubbaiah, 1(b) Sri. B.V. Raghunath, Aged about 61 years, S/o. late B.V. Venkatasubbaiah, 1(c) Sri. B.V. Sreenath Aged about 64 years, S/o. late B.V. Venkatasubbaiah, All residing at:
No.1130, 8th Cross, Banashankari I Stage, II Block, Ashok Nagar, Bengaluru – 560 050. ...Respondents (By Sri. Y. Hari Prasad, Advocate) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to set aside the orders passed on I.A.Nos.6 to 9 in Execution Petition No.133/2001 on the file of the XXVII Addl. City Civil & Sessions Judge, Bengaluru, dated 11.09.2013 as per Annexure – L by allowing the interim application I.A.Nos.6 to 9 by the petitioner.
These Writ Petitions coming on for Preliminary Hearing in ‘B’ Group this day, the Court made the following:
O R D E R The petitioner who is the judgment debtor has assailed the order passed by the Executing Court whereby I.A.Nos.VI to IX have been dismissed. The petitioner is the judgment debtor and has suffered a decree in O.S.No.8235/1999. Execution petition No.133/2001 has been filed seeking execution of the judgment. During the pendency of the said proceedings, the Executing Court has passed an order appointing a Commissioner and allowed the application filed under Order 26 Rule 9 by the decree holder. The following applications were filed:
a) I.A.No.VI filed by the judgment debtor seeking to recall the Commissioner Warrant issued.
b) I.A.No.VII filed seeking to set aside the order dated 20.08.2011 allowing I.A.No.4 filed under Order 26 Rule 9 of CPC and to permit the judgment debtor to file objections to the said application.
c) I.A.No.VIII filed under Section 151 of CPC seeking to set aside the order dated 17.09.2005 closing the evidence of the decree holder and permitting the judgment debtor to cross-examine the decree holder.
d) I.A.No.IX seeking permission to permit the judgment debtor to file objections to the Execution petition.
2. It is noted that the application for setting aside the order passed appointing the Commissioner has been filed after a delay of about 16 months. Taking note of the disputes that have arisen between the parties and the contentions raised entertaining the request of the judgment debtor at the belated stage may not be appropriate and accordingly, insofar as the request of the petitioner to reopen the proceedings as regards to the order appointing a Commissioner is not liable to be interfered with. Accordingly IA.No.VII is rejected. Consequently, IA.No.VI is also rejected.
3. However, insofar as the request of the petitioner seeking permission to file objections to the main Execution Petition, taking note that the execution petition has still not reached finality nor has been concluded, in the interest of justice, it would be appropriate looking into the nature of claims and counter claims made by the parties to permit the judgment debtor to file Statement of objections to the main Execution petition. Consequent to such filing of the statement, it is open to the respondent now represented through his legal representatives to lead fresh evidence if it is found so necessary. If the respondents lead fresh evidence, it is open for the petitioner to cross-examine the said respondents. After furnishing of the Commissioner Report it is always open to the judgment debtor to file objections to the commissioner report. Accordingly, I.A.Nos.VIII and IX are allowed.
4. Taking note that the execution petition relates to the year 2001 and the judgment in O.S.No.8235/1999 has been passed on 11.01.2000, the Execution proceedings to be concluded expeditiously within a period not later than eight months from the receipt of certified copy of the order. Taking note that the petitioner is being permitted an opportunity despite closure of the earlier stage in the execution proceedings, petitioner to pay cost of Rs.5,000/- to the respondents. The application of the judgment debtor filed asserting that the Execution petition is not maintainable will also be taken and considered in accordance with law.
Accordingly, petitions are disposed off, subject to the above observations.
Sd/- JUDGE SV