WRIT PETITION NO.58838/2013 (GM-CPC)

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4 th DAY OF JANUARY, 2016 BEFORE THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA WRIT PETITION NO.58838/2013 (GM-CPC) AND WRIT PETITION NOS /2014(GM-CPC) BETWEEN: M/S TECHNOCON BUILDERS SF-9, KARUNA COMPLEX, 337, SAMPIGE ROAD, MALELSWARAM, BANGALORE REPRESENTED BY ITS PROPRIETOR, SRI M. K.KRUPAKARA RAO AGED ABOUT 52 YEARS (By Sri: UDAY HOLLA, SENIOR COUNSEL FOR SRI: G K V MURTHY, ADV.)... PETITIONER AND 1. MRS K SUDARSHANA (SINCE DECEASED) REPRESENTED BY HER LEGAL HEIR, MR. VENKATESH DUTT, MAJOR S/O LATE K.S. DATTATREYA,

2 2 MUNICIPAL NO.3, SHIVANANJAPPA LAYOUT, BRUNTON CROSS ROAD, CIVIL STATION, BANGALORE MR.K.V. VIKRAM MAJOR, S/O MR. VENKATESH DUTT, MUNICIPAL NO.3, SHIVANANJAPPA LAYOUT, BRUNTON CROSS ROAD, CIVIL STATION, BANGALORE MR. VENKATESH DUTT MAJOR, S/O LATE K.S. DATTATREYA, MUNICIPAL NO.3, SHIVANANJAPPA LAYOUT, BRUNTON CROSS ROAD, CIVIL STATION, BANGALORE MRS. SRILATHA PRAKASH AGED ABOUT 57 YEARS, D/O LATE K.S. DATTATREYA, BARLIE STREET, SHANTHINAGAR, BANGALORE (By Sri: GANESH KUMAR R, ADV/ FOR R2 & R3 SRI: A.S. PONNANNA, ADV FOR R4 SERVICE OF NOTICE TO R1)... RESPONDENTS

3 3 THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED ON I.A.1, 2 AND 4 IN EXECUTION CASE NO.971/2013 PASSED BY THE LEARNED XIV ADDL. CITY CIVIL JUDGE, BANGALORE VIDE ANN-R AND AS A CONSEQUENCE THEREOF RESTORE THE SAID EXECUTION CASE TO FILE GRANT AN INTERIM ORDER TO RESTRAIN ALL THE RESPONDENTS FROM ALIENATING OR CREATING ANY CHARGE ON THE IMMOVABLE PROPERTY BEARING NO.3 [OLD NO.11] SHIVANANJAPPA LAYOUT, BRUNTON CROSS ROAD, CIVIL STATION, BANGALORE - 52 THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, A.V.CHANDRASHEKARA, J., MADE THE FOLLOWING: ORDER The decree holder of Execution Petition bearing No.971/2013 which was pending on the file of the Court of the XXXI Additional City Civil Judge, Bangalore City (CCH-14) has filed these petitions under Article 227 of the Constitution of India challenging the common order passed on I.A.Nos.1, 2, 4 and 5. The impugned order is dated under which the very execution petition filed by the decree holder is dismissed. Learned Judge has dismissed the execution petition essentially on the

4 4 ground that the compromise decree obtained by the decree holder in O.S.No.4093/2009 on is inexecutable. 2. The parties will be referred to as plaintiff and defendants as per their ranking given in the original suit filed before the trial Court in O.S.No.4093/ An application had been filed under Order XXI Rule 54 read with Section 151 of CPC vide I.A.No.1 and another interlocutary application was filed under Order XXI Rule 64 read with Section 151 of CPC vide I.A.No.2. These two applications filed by the decree holder have been dismissed. The application filed by Smt.Srilatha Prakash 4 th respondent herein under Order XXI Rule 58 of CPC is allowed and an ex parte order of attachment of the schedule property passed on is recalled. The application filed under Order XXI Rule 26 of CPC by Smt.Srilath Prakash for staying operation of the

5 5 compromise decree obtained in O.S.No.4093/2009 is dismissed. The execution petition filed under Order XXI Rule 11 of CPC in terms of the compromise decree dated is held to be inexecutable. It is these orders which are called in question on various grounds as set out in the memorandum of writ petitions. 4. As already stated, petitioner was a decree holder in the said case. The first respondent herein was the first defendant in the original suit bearing O.S.No.4093/2009. The second respondent is the grand son of the deceased first respondent and third respondent is the son of the deceased first respondent. The fourth respondent Smt.Srilatha Prakash is the daughter of the first respondent and sister of third respondent herein. 5. During the pendency of the suit filed for recovery of money, the first defendant died and her son and grand

6 6 son who were defendant Nos.2 and 3, who were already on record were treated as LR s. During the pendency of the execution petition, Smt.Srilatha Prakash came on record as respondent No.4 on the ground that the compromise decree obtained was behind her back that too in collusion with her brother and nephew and that the compromise decree so passed is inexecutable. 6. The facts leading to the filing of the execution petition and dismissal thereof are as follows: The immovable property bearing Municipal No.3, Ward No.76, Richmond Road, Shivananjappa Layout, Brunton Cross Road, Civil Station, Bangalore had been purchased by Sri.K.S.Dattatreya, the husband of the deceased first defendant and grand father of the second defendant on through a registered sale deed. After the death of Sri.K.S.Dattatreya, his wife Smt.Sudarshana and grand son Vikram mortgaged the

7 7 above schedule property in favour of the plaintiff on for availing loan of Rs.6 crores through simple mortgage deed. Mr.Venkatesh Dutt - son of deceased Smt. Sudarshana and Late.Sri.K.S.Dattatreya is the consenting witness to the simple mortgage deed executed on An affidavit was executed by Venkatesh Dutt in favour of the plaintiff stating that the original sale deed dated obtained by his father was lost as it was misplaced many years ago and that he had undertaken to produce original sale deed, if he were to lay hands on the same. He had also referred to the property being earlier mortgaged to M/s.Sobha Developers and has also referred to the original will executed by K.S.Dattatreya and the same being handed over to M/s.Sobha Developers. Since the defendants did not pay the loan, suit for recovery of money to an extent of Rs.14 crores was filed in O.S.No.4093/2009 on

8 8 7. Defendant No.3 had filed the written statement denying all the material averments and had requested the Court to dismiss the suit with heavy cost. In the meantime, first defendant died and a compromise was entered into between the plaintiff and defendant Nos.2 and 3 by filing a compromise petition dated The decree was drawn on the basis of the compromise petition. The said compromise petition consists of 11 clauses containing reciprocal promises. 8. In the meantime, a criminal case had been filed by the defendant No.3 in C.C.No.18379/10 for the offence punishable under Section 138 of N.I. Act. A compromise had been entered into by the plaintiff and defendants before the ACMM Court at Bangalore, under which defendant No.3 / accused had agreed to pay Rs.7 crores within 15 months from the date of the order and in default to undergo simple imprisonment for two years. As per the

9 9 compromise, amount was not paid and hence execution petition was filed under Order XXI Rule 11 of CPC in Execution No.971/2013 seeking recovery of Rs.11,82,19,713/- inclusive of accrued interest. The relief of attachment and sale of the property bearing Municipal No.3, Ward No.76, Richmond Road, Shivananjappa Layout, Brunton Cross Road, Civil Station, Bangalore was also sought. An ex parte order of attachment was granted by the Executing Court. 9. Judgment Debtor No.2 Vikram chose to file detailed objections to the execution petition invoking Section 47 of CPC on the ground that the very compromise decree is inexecutable because of the lapse of the decree holder in complying with certain mutual obligations. 10. During the pendency of the said case, 4 th defendant herein Smt.Srilatha Prakash, daughter of the deceased first defendant and sister of the third defendant

10 10 chose to come on record on the ground that she had not been brought as L.R. in the suit, after the death of her mother and therefore, execution petition was not maintainable. She had filed separate application under Order XXI Rule 58 r/w.section 151 of CPC on requesting the Court to release the schedule property from the attachment and to pass suitable orders. 11. According to her, the property in question had been jointly purchased by her mother and father on through a registered sale deed and that her father died on and her mother died on leaving behind her and Judgment Debtor No.3 i.e., her brother as the LR. She is stated to have succeeded to the property jointly as a coparcener and during his life time, her father had executed a will dated bequeathing half of the share in the suit schedule property in favour of the second Judgment

11 11 Debtor i.e., her niece and her father had bequeathed self acquired agricultural property in Arasikere in favour of second Judgment Debtor. Subsequent to the death of her father, second Judgment Debtor herein had succeeded to the properties mentioned in the will and that her father and mother had left 50% of rights in the schedule property. According to her, defendant Nos.2 and 3 without the knowledge of her mother, had availed a mortgage loan from one M/s.Sobha Developers Ltd., on There was no necessity for any financial requirement by her mother. According to her, mortgage deed executed on by Judgment Debtor Nos.2 and 3 was in collusion with the plaintiff. Her brother is stated to have filed a memo that her mother had no legal representative except Judgment Debtor No.3 and decree holder was very much aware of the deceased first defendant leaving her daughter as also one of the heirs.

12 12 According to her, the decree was obtained by playing fraud and therefore it was not executable. 12. Judgment Debtor No.3 had filed objection under Section 47 read with Section 151 of CPC to the execution petition contending that the clauses found in the compromise decree are ambiguous and hence, cannot be given effect to. Reciprocal promises have not been complied with by the decree holder and hence decree is non est in law. No relief could be obtained over the immovable property mortgaged in favour of the plaintiff without having recourse to Order 41 of CPC and therefore decree was invalid. 13. Learned counsel for the parties have submitted elaborate arguments supported by many decisions. Learned Judge has chosen to frame the following points for consideration has found in Page No. 5 of the impugned Order.

13 13 1. Whether the Decree Holder has made out a case under Order XXI Rule 54 CPC seeking attachment of the execution schedule property as prayed in I.A.No.1? 2. Whether the Decree Holder has made out a case under Order XXI rule 64 CPC to order for the sale of the property attached by an exparte order dated as prayed in I.A.No.2? 3. Whether the objector (Smt.Srilatha Prakash) has made out a case under Order XXI Rule 58 CPC to raise / recall exparte attachment order dated as prayed in I.A.No.4? 4. Whether the objector (Smt.Srilatha Prakash) has made out a cause under Order XXI Rule 26 CPC to stay operation and the execution of the compromise decree passed in O.S.No.4093/2009 dated as prayed in I.A.No.5?

14 14 5. Whether the Execution Petition filed under Order 21 Rule 11 to execute the terms of compromise decree in O.S.No.4093/2009 dated are executable? 6. What order? 14. Point Nos.1, 2, 4 and 5 have been answered in the Negative and Point No.3 in the Affirmative. It is ultimately held that the compromise decree is inexecutable and that ex parte order of attachment to the immovable property needs to be recalled having regard to the several decisions which had been relied by the learned counsel for the parties. 15. Sri.Uday Holla, learned Senior counsel representing decree holder / petitioner has submitted that the trial Court has adopted wrong approach to the real state of affairs without looking to the fact that Order XXI Rule 58 read with Section 151 of CPC requires a detailed

15 15 enquiry and that the rights of the parties will have to be decided as if it is a suit. The Executing Court is stated to have lost of the sight of the fact of earlier mortgage made by defendant Nos.1, 2 and 3 in favour of the State Bank of India to secure loan for the Partnership Firm and that they did not pay the dues to the plaintiff. The decree holder had misrepresented to him by stating that the objector had pre-decreased her mother and that subsequent to compromise, tried to save the property sought to be auctioned by the Bank by negotiating with the Bank and succeeded in persuading the Bank to accept a sum of Rs.5 crores by way of one time settlement as against the dues of Rs.28 crores. According to the learned Senior counsel, defendant Nos.2 and 3 have sufficiently represented the estate of the deceased. Hence, reliance is placed upon a judgment of the Hon ble Supreme Court in the case of N.K.MOHD. SULAIMAN VS. N.C.MOHD., ISMAIL SAHEB AND OTHERS AIR 1966

16 16 SC 792. It is further argued that Order XXI Rule 58 provides for holding an enquiry as though it is a suit in order to decide the right, title and interest of the objector. Therefore, learned Judge should have conducted a full fledged trial to ascertain the share of respondent No.4 and after ascertaining her share, petitioner should have been permitted to proceed against remaining three persons. 16. It is further argued that Rules 14 or 15 of Order 34 of CPC are not applicable to the facts of the case and that the relief sought for is by way of attachment of property in a decree obtained for money. The trial Court is stated to have adopted wrong approach to the real state of affairs. 17. Per contra, learned counsel appearing for respondent Nos.2 and 3 has argued that the decree is vague and it cannot be meaningfully executed. According to the learned counsel representing respondent Nos.2 and

17 17 3 there were mutual obligations and reciprocal promises and the same was not kept up by the plaintiff / decree holder in strict sense and hence the decree was wholly inexecutable and that non-impleading of Smt.Srilatha Prakash is fatal to the case of decree holder. Order XXXIV Rule 14 of CPC does not allow any relief to be granted on the mortgaged property. The decree obtained must have been compulsorily registered is his argument. 18. Learned counsel representing respondent No.4 has argued that the compromise decree is the outcome of fraud practiced by the decree holder as well as the Judgment Debtors and that the property sought to be attached was a property of the Hindu undivided family of which the 4 th respondent was a sharer. She is stated to have filed suit in O.S.No.2678/2013 against the Judgment Debtors 2 and 3 seeking her share. The decree is stated to have become inexecutable as she was not brought on

18 18 record as legal representative pursuant to the death of her mother and the suit has abated in its entirety and hence there is no executable decree. Decision rendered in the case of N.K.MOHD. SULAIMAN VS. N.C.MOHD., ISMAIL SAHEB AND OTHERS AIR 1966 SC 792 would be applicable, only when the decree holder had made bonafide enquiry and provided the collusion was absent. Therefore, these decisions are not applicable is his argument. It is submitted that the averments of the decree holder that he came to know the public notice dated issued by the State Bank of India about the mortgage is utterly false and the citation taken out in the newspaper against respondent No.4, would disclose that even before institution of the suit, the plaintiff / petitioner had the knowledge of existence of respondent No.4. In the light of no bonafide enquiry being made prior to the filing of the memo in the original suit, the decision rendered in N.K.MOHD. SULAIMAN s case is not applicable. In the

19 19 light of 4 th respondent being not brought as legal representative, the whole suit has abated in its entirety and the decree so obtained out of the compromise is not severable in law. 19. After going through the arguments of the learned counsel appearing for the parties, the following points arise for consideration. 1. Whether the Executing Court is justified in dismissing the execution petition on the ground of 4 th respondent being not brought on record in the Original suit bearing No.4093/2009 when her mother died? 2. Whether the Executing Court has disclosed the facts of the case with reference to the decisions rendered in paragraph Nos.24 and 25 of the impugned order? 3. Whether any interference is called for by this court and if so, to what extent?

20 20 REASONS 20. Point No.1: Smt.Srilatha Prakash had chosen to file an application under Order XXI Rule 58 of CPC with the execution petition essentially on the ground that she was not brought on record as legal representative of her mother i.e., first defendant. Her mother died during the pendency of the original suit bearing No.4093/2009. Of course, she is not a signatory to the mortgage deed executed in favour of the plaintiff by the deceased first defendant and third defendant. If one were to accept that fourth defendant has a right in the schedule property, Order XXI Rule 58 of CPC enables the Court to hold an enquiry to determine the rights of the parties. Application under Order XXI Rule 58 of CPC came to be filed by the objector Smt.Srilatha Prakash on and it is supported by an sworn affidavit. The gist of the said affidavit is that she had been left out to be brought as defendant in the suit after the death of her mother and

21 21 that was done by the plaintiff in collusion with defendant Nos.2 and 3 and therefore the judgment and decree do not bind her. 21. Order XXI Rule 58 of CPC provides for Adjudication of claims to, or objections to attachment of property. Sub Rule (2) of Rule 58 states that all questions including right, title or interest in the property attached arising between the parties to a proceedings or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. 22. Rules 58 and 59 deal with adjudication of claims preferred to property attached in execution of a decree and of objections to the attachment of such property. The scheme has been substantially changed in A claim or objection by a third party, if filed, must

22 22 be investigated and adjudicated unless the case falls within the proviso. 23. Proviso to Sub Rule (1) of Rule 58 of Order XXI states that no claim is preferred or objection shall be entertained if the property is attached had been sold before the claim or whether the claim or objection was designed or unnecessarily delayed. Any now this provision is not applicable to the facts of the case. 24. Instead of holding an enquiry in terms of Order XXI Rule 58 of CPC, the learned Judge has chosen to dismiss the execution petition on the ground of not bringing the 4 th respondent as a legal representative of her deceased mother during the pendency of the suit. 25. The learned Judge has not given any opinion as to whether the defendant Nos.2and 3 had really represented the entire estate of the deceased and therefore

23 23 non-bringing of Smt.Srilatha Prakash is fatal to the case. The learned Judge has referred some of the clauses found in the compromise petition. On the basis of which a compromise decree came to be passed. Clause No.10 of the compromise petition speaks as follows:- The defendants in the event execute a joint development agreement with any third party shall repay the plaintiff, a sum of Rs.7,32,000,00/- (Rupees Seven Crores Thirty Two Lakh Only) along with any additional sums that are paid by the plaintiff to the State Bank of India with a view to compromise the loan account of Intercorp Associates at the rime of execution of the joint development agreement. 26. Learned Judge has referred to this Clause in paragraph No.17 of the impugned order is as follows: The contents of para No.10 of the compromise petition reveals that judgment debtors contemplated dealing with third party

24 24 and had time implications as the essence of whole process. Admittedly the Joint Development Agreement with 3 rd party as referred in para 10 of the compromise petition was not materialized. In my view, when there are obligations which are reciprocal and interlinked, such decree can not be unilaterally executed. In the case on hand both the parties to compromise decree dated are defaulters. 27. A plain reading of Clause No.10 of the compromise petition referred to above discloses that what should happen in the event of defendant Nos.2 and 3 executing a Joint Development Agreement about the amount to be paid to the plaintiff. Just because no Joint Development Agreement came into existence, it cannot be held that the decree is inexecutable. Clause No.10 states that in case defendant Nos.2 and 3 had entered in Joint Development Agreement with the third party, the plaintiff

25 25 will have to pay a sum of Rs.7,32,000,00/- alongwith additional sum to the State Bank of India. It is not a condition precedent for executing the decree. Infact, learned Judge has virtually misunderstood the scope of Clause -10 while making discussion in paragraph No Whether the 4 th respondent had any share in the undivided schedule property and if so what exactly is her share and whether the transaction entered into between defendant Nos.2 and 3 with the plaintiff was to save the schedule property, should have to be looked into by the trial Court. No such attempt has been made. On the other hand, the learned Judge has made a common discussion of clubbing all the five points formulated for consideration. There should have a separate discussion on each of the points framed. It is not as though all the points are inter-related and therefore the learned Judge was expected to take up each point separately for

26 26 discussion. Infact, learned Judge has not assigned any reasons as to why he had to take up all the points together for common discussion. The clubbing of all the points for common consideration is improper and incorrect and that can be done by assigning valid and proper reason. 29. What is held in paragraph No.12 of the impugned order is that not bringing Smt.Srilatha Prakash as a defendant in O.S.No.4093/2009 is a very serious mistake and hence it is a fatal defect. The said observation is made without looking to the provisions of proviso to Rule 58 of Order XXI of CPC. Whether there was any difficulty to proceed with the undivided share of defendant Nos.2 and 3 is not discussed, except stating that the there was no difficulty in not bringing Smt.Srilatha Prakash defendant in original suit. Whether there was collusion between the plaintiff and

27 27 defendant Nos.1 and 2 or whether the defendant Nos.2 and 3 had colluded with the objector and whether defendant Nos.2 and 3 really represented the estate adequately in order to bind the share of the objector, could have been found out only after a full fledged enquiry was held in the execution petition. 30. In paragraph No.15 of the impugned order, it is observed that one of the clauses in the compromise petition provides for imposing a liability on Venkatesh Datt Judgment Debtor No.3 to pay Rs.7 crores within , otherwise he shall undergo a simple imprisonment for two years in C.C.No.18379/10 which was pending before ACMM, Bangalore. Admittedly, compromise order dated passed in C.C.No.18379/10 have been set aside by FTC-IV on and therefore compromise petition has become infructuous. Whether the criminal case has got revived,

28 28 because of the lapse committed by the defendant No.3 will have to be ascertained and no such attempt is made. Nothing is placed on record to show that the order passed in C.C.No.18379/10 was set aside and the criminal case was got revived because of the lapse committed by the Judgment Debtor No It is not the case of the respondent Nos.2 and 3 herein that execution petition is not maintainable in view of the revival of the criminal case. Therefore, the trial Court has adopted wrong approach to the real state of affairs. Thus, the learned Judge of the trial Court is not justified in dismissing the execution petition. Hence, point No.1 is answered in the Negative. 32. Point No.2: Both the parties had relied upon several decisions in support of their respective arguments. Paragraph Nos.24 and 25 of the impugned order at Page

29 29 13 deals about the decisions relied upon by the learned counsel in paragraph Nos.24 and 25 are as follows: 24. The learned advocate for the decree holder during the course of his arguments has relied upon the decisions reported in (i) AIR 1966 SC 792, (ii) AIR 1975 SC 733, (iii) AIR 2008 Delhi 51, (v) 1997 (2) KLJ 354, (v) AIR 1972 Mysore 321, (vi) AIR 1974 Rajasthan 168, (vii) AIR 2005 Rajasthan 161, (viii) 1971(3) SCR 301, (ix) AIR 1987 Kar 60, (x) AIR 1967 AP 148, (xi) AIR 1990 SC 119. The learned advocate for the judgment debtors during the course of his arguments has relied upon the decisions reported in (i) AIR 2010 Kar 104, (ii) AIR 1966 SC 792, (iii) 1997(2) KLJ 354, (iv) AIR 1972 SC 726 (v) AIR 1956 SC The learned advocate for the Objector during the course of his arguments has relied upon the decisions reported in (i) ILR 2013 Kar 6026, (ii) AIR 1938 Calcutta 445, (iii) AIR 1966 Allahabad 278, (iv) AIR 1994 SC 1292, (v) ILR 1995 Kar 1810, (vi) 1999 (2) KLJ 384, (vii) 2002(3) KCCR 1586, (viii) AIR 2003 NOC 22 (Kar).

30 The facts of the case will have to be discussed in the light of the principles enunciated in these decisions. What is enunciated in the decision referred to is not discussed, except stating that he had gone through the facts and ratio laid down in the above cases and agreed with the law laid down in the above case. AIR 1966 SC 792 deals about the Abatement of a suit and also about the Doctrine of Estate. The decision reported in AIR 1975 SC 733 also speaks about the same and earlier decision in AIR 1966 SC 792 referred to follows. These decisions had been relied upon by the learned counsel for the decree holder. The normal approach of the Court should be to look into these decisions and to say whether the decisions are applicable to the facts of the case and if not, how. No such attempt is made what exactly is the ratio of all these decisions is not at all discussed, except stating that he has gone through the facts and ratio laid

31 31 down in the above cases. Paragraph No.26 of the impugned order is relied and is extracted below: 26. I have carefully gone through the facts and the ratio laid down in the above quoted cases. I respectfully agree with the law laid down in the above quoted cases, I have borne in mind the ratio laid down in the above quoted cases while appreciating rival contentions and coming to final conclusion. 34. On going through the contents of Paragraph Nos.24 and 25 of the impugned order, this Court is of the opinion that the learned Judge has not taken any pain to discuss about the decisions referred by the learned counsel appearing for the parties and applicability of the same to the facts of the case. Such approach cannot be considered as a proper approach. Whether the compromise was inexecutable in its entirety on the ground that the 4 th respondent being not brought on record or whether the compromise decree was executable against

32 32 the other defendants is not at all discussed, except stating that the compromise petition dated is not properly drafted and that the parties have not expressed intention properly in the compromise petition and that there is an element of ambiguity. 35. Number of documents had been relied upon by the plaintiff / decree holder in the Executing Court and they have not been referred to while making discussion. The learned Judge has come to the conclusion that there are reciprocal promises and plaintiff has not complied with certain obligations. What are those obligations which the plaintiff should have to complied with, to get the decree executed are not spelt out in any manner. Even if the party is not brought in a suit and if that party has some right, Rule 58 of Order XXI provides for holding a detailed enquiry as if `in a suit to decide the right, title

33 33 and interest. Hence, Point No.2 is answered in the Negative. 36. Point No.3: Sri.Uday Holla, learned counsel has argued that the matter may not be remanded, since this Court can correct the wrong steps taken by the Executing Court in terms of Article 227. But the same cannot be applied by this Court as if sitting in an appeal when the Executing Court has not held a full fledged enquiry as per the mandate of Rule 58 of Order XXI of CPC. In view of the answers on the above points, impugned order will have to be set aside and the matter is remanded to the trial Court to dispose of the same in accordance with law and at the earliest. Hence, the following: ORDER Writ petitions are allowed and impugned order passed by XXXI Additional City Civil Judge, Bangalore City in

34 34 Ex.No.971/2013 on is set aside. The matter is remitted to the trial Court to dispose of the matter at the earliest preferably, within six months from the date of receipt of copy of the order. Parties and Advocates to co-operate with the Executing Court to dispose of the matter in accordance with law. All contentions urged have are kept open to be urged before the Executing Court. Parties shall appear before the Executing Court on without fail and the case shall be disposed of within six months from Registry to send a copy of this order to the Executing Court. Parties to bear their own costs. Sd/- JUDGE VMB