BY SRI. K.R. NAGARAJA, ADV., FOR SRI v. VISWANATHA SETTY
Case Details
- 1 - NC: 2025:KHC:23314 W.P. No.111/2019 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.111/2019 (GM-CPC) Digitally signed by RUPA V Location: High Court of karnataka BETWEEN: SMT. GAYATHRI D/O LATE H.M. JAVARAYAPPA GOWDA AGED ABOUT 50 YEARS R/AT NO.142, 14TH CROSS 9TH MAIN, WILSON GARDEN BANGALORE-560030. (BY SRI. K.R. NAGARAJA, ADV., FOR SRI. V. VISWANATHA SETTY, ADV.,) AND: 1. SMT. S. SOUJANYA W/O S. PRASAD AGED ABOUT 44 YEARS R/AT NO.46/2, 8TH MAIN MUTYALA NAGAR BANGALORE-560054. 2. KUM. T. NAGARATHNA SEETHA D/O LATE VENKATA REDDY NO.775, 15TH B MAIN ROAD GOKULA EXTENSION BANGALORE-560054.
Legal Reasoning
(BY SRI. S. SARAVANA, ADV., FOR R1 R2 SERVED) …PETITIONER …RESPONDENTS THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE RECORDS ON THE FILE OF THE XXX ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY IN EX.NO.2643/2010. ISSUE A WRIT OF CERTIORARI BY QUASHING THE ORDER DT.14.6.2018 ON - 2 - NC: 2025:KHC:23314 W.P. No.111/2019 HC-KAR APPLICATION PASSED BY THE XXX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY IN EX.NO.2643/2010 VIDE ANNEXURE-J AND FURTHER BE PLEASED TO ALLOW THE APPLICATION FILED BY TEH PETITIONER UNDER ORDER XXI RULE 97 R/W SECTION 151 OF CPC, PENDING DISPOSAL OF THE ABOVE WRIT PETITION & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking following reliefs: "a) Call for the entire records on the file of the XXX Additional City Civil & Sessions Judge, Bangalore City in Ex.No.2643/2010; Judge, Issue a Writ of Certiorari by quashing b) the order dt.14.06.2018 on application passed by the XXX Additional City Civil & Sessions in Ex.No.2643/2010 vide Annexure-J and further be pleased to allow the application filed by the petitioner under Order XXI Rule 97 r/w Section 151 of CPC, pending disposal of the above writ petition; Bangalore City To grant such other relief/s as deems c) fit in the circumstances of the case, in the interest of justice and equity." 2. Sri.K.R.Nagaraja, learned counsel appearing on behalf of Sri.V.Viswanatha Setty, learned counsel for the petitioner submits that the petitioner has filed an - 3 - NC: 2025:KHC:23314 W.P. No.111/2019 HC-KAR application as an obstructer to come on record and contest the case in Ex.No.2643/2010 and also filed an application under Order XXI Rule 97 r/w Section 151 of Civil Procedure Code, 1908 stating that the obstructer is the General Power of Attorney (GPA) holder of the mother of the judgment debtor and she has authorized the obstructer to deal with item No.2 of the suit schedule property and without considering any of the aspects, the executing Court rejected the application of the obstructer. It is submitted that even the third party to the proceedings can be an obstructer in the execution, and his objection needs to be considered. In support of his contentions, he placed reliance on the decision of this Court in the case of Shri.J.Kumar and Another v. Shri.Muniyappa and Others1. It is submitted that the executing Court without conducting an enquiry as provided under Order XXI Rule 97, proceeded to reject the application at the threshold. Hence, he seeks to allow the 1 WP.No.5556/2024 dated 26.02.2024 - 4 - NC: 2025:KHC:23314 W.P. No.111/2019 HC-KAR petition by directing the executing Court to consider the application of the obstructer by holding an enquiry and thereafter take the decision in accordance with law. 3. Per contra, Sri.S.Saravana, learned counsel appearing for respondent No.1/decree holder, supports the impugned order of the trial Court and submits that the decree holder obtained the decree on 01.09.2010. Thereafter, the execution proceedings were initiated and in execution all three properties were put up for auction. At that time, the petitioner filed an application as an obstructer claiming that in relating to item No.2 of the property she has executed a sale deed in favour of the mother of the judgment debtor and the said sale deed is a sham document and she has not received any sale consideration. Considering these aspects, the mother of the judgment debtor has executed a GPA in favour of the obstructer by permitting her to sell the properties. The trial Court recorded the clear finding that the filing of the application by the obstructer is highly belated and no - 5 - NC: 2025:KHC:23314 W.P. No.111/2019 HC-KAR documents were placed on record to show that the obstructer has any subsisting right with regard to item No.2 of the property. He seeks to dismiss the petition. 4. I have heard the arguments of the leaned counsel for the petitioner, the learned counsel for respondent No.1 and meticulously perused the material available on record. I have given my anxious considerations to the submissions advanced by both sides. 5. Respondent No.1 filed OS.No.4623/2009 against respondent No.2 for recovery of money. The said suit came to be decreed vide judgment and decree dated 01.09.2010. To execute the aforesaid judgment and decree, respondent No.1 filed an execution petition in Ex. Case No.2643/2010. The records indicate that the three properties referred in the execution petition were attached during the proceedings and put up for auction. The petitioner filed an application to contest the proceedings. The said application was opposed by - 6 - NC: 2025:KHC:23314 W.P. No.111/2019 HC-KAR respondent No.1/decree holder. The trial Court considering the same rejected the application. The petitioner mainly contended that she has executed a registered sale deed dated 14.06.2007 in favour of Smt.Sanjeeva Kumari, the mother of respondent No.2/judgment debtor and the said instrument is a sham instrument as no sale consideration was passed to her and the mother of the judgment debtor/respondent No.2 herein in turn has executed a Power of Attorney to deal with the said property. Admittedly, the mother of respondent No.2 died long back. Thereafter, the property was succeeded by respondent No.2/judgment debtor, which has been rightly observed by the trial Court under the impugned order. 6. The trial Court has further rightly recorded the finding that the obstructer has not placed any cogent and legally acceptable material before it to establish substantive rights or the interests over the item No.2 property to consider her application. The trial Court has also recorded the finding that the filing of the obstructer's - 7 - NC: 2025:KHC:23314 W.P. No.111/2019 HC-KAR application is a belated one, after the property was put up for auction and rejected the said application. I do not find any error in the finding recorded by the trial Court under the impugned order calling for interference. The judgment relied on by the learned counsel for the petitioner has no application to the facts and circumstances of the case. It is the case on hand that the petitioner has failed to place on record the material to show that she has some semblance of right over the suit schedule property. The registered sale deed executed by the obstructer in favour of the mother of respondent No.2/judgment debtor is dated 14.06.2007 and from the said date no steps have been taken by the petitioner. If the said document is sham as alleged, then the petitioner would not have kept quite for all these years. It is evident that the obstructer has not approached the executing Court with a clean hand and the executing Court has rightly rejected the said application, which does not call for any interference in this petition. For - 8 - NC: 2025:KHC:23314 W.P. No.111/2019 HC-KAR the aforementioned reasons, I proceed to pass the following:
Decision
ORDER The writ petition is devoid of merits and the same is rejected. Sd/- (VIJAYKUMAR A. PATIL) JUDGE ABK List No.: 1 Sl No.: 30