O R D E R
These petitions are filed by the BDA through its Commissioner challenging the legality and correctness of the order dated 29.1.2015 vide Annexure 'K' and to set aside the said order and consequently, direct the Court below to entertain the application filed by the petitioner authority as per Annexure 'F' and thereupon adjudicate upon question raised by the petitioner authority in accordance with Section 47 read with Order
3
XXI Rule 97 of CPC and to grant such other reliefs in favour of the petitioner-authority.
2. Brief facts leading to filing of these petitions are, petitioner had filed two applications I.A.Nos.1 and 2, both under Order 21 Rule 97 r/w Section 151 of CPC in Ex.Case No.2713/2012 for impleadment and deferring the execution proceedings filed by respondent No.1 against respondent No.2 in respect of the property in Sy.No.12/2 of Geddalahalli village which was acquired by the Government for formation of layout called Gokul II Stage, Rajamahal Vilas, II Stage layout and handed over to petitioner till the disposal of the suit filed by them in O.S.No.2070/2013, on the ground that the decree sought to be executed by the respondent No.1 is null and void and hit by Section 3 of Karnataka Land (Restriction on transfer) Act 1991 etc., The respondent No.1 has filed objections to the said applications and the learned City Civil Judge without holding any enquiry as contemplated under law, rejected the same
4
by its order dated 29.1.2015. Before filing the instant petition, petitioner under the bonafide mistake called in question the above said order of the Court below dated 29.1.2015 by filing RFA No.242/2015. Now the petitioner having realized that under the facts and circumstances of the case only course open to the petitioner is to file the instant petition by invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India, has filed this petition..
3. Heard the arguments of learned Senior counsel appearing for the petitioner-BDA and also learned counsel for respondent No.1-Decree holder.
4. Learned senior counsel for the petitioner during the course of his arguments submitted that the trial Court without conducting proper enquiry in the matter, has summarily rejected the applications filed by the BDA. Learned counsel also submitted that the land in question including the area wherein the decree holder is
5
claiming his right has been acquired by issuing 4(1) Notification and ultimately, the subsequent notifications were issued and award has been passed and even possession has been taken. In spite of these things, the respondent No.1 decree holder has sought for execution. Hence, petitioner filed applications before the trial Court. Learned counsel further submitted that when such applications have been filed it was the bounden duty of the Executing Court to conduct detailed enquiry in the matter and then to decide about the rights of the parties. All these procedures were not at all followed by the trial Court and the trial Court has hurriedly considered the applications and ultimately rejected the same. Hence, it is submitted that the order of the trial Court is patently illegal and it is not sustainable in law. That the matter requires remand to the Executing Court with a direction to conduct detailed enquiry and thereafter to take decision in the matter.
6
5. Per-contra, learned counsel for respondent No.1-decree holder during the course of his arguments submitted that the trial Court has properly appreciated and considered the contentions of the petitioner- applicant and has rightly rejected the applications. Though the contention of the petitioner herein that the land in question has been acquired by issuing necessary notifications, award has been passed and possession has been taken is accepted, but the entire acquisition proceedings were quashed by the order of this Court dated 2.9.2011 passed in W.P.Nos.16074- 100/2010. It is also his contention that to invoke Order
21 Rule 97 of CPC and to get the relief at the hands of the Executing Court petitioner has to establish its case that it is in actual possession and enjoyment of the suit schedule property. Learned counsel has submitted that it is only the contention of the petitioner herein that symbolic possession has been taken and not the actual possession. In this connection, learned counsel has drawn the attention of this Court to the relevant
7
paragraphs of the decision of this Court dated 20.4.1995 rendered in Regular Second Appeal in the case of Akkatai Vs. Baburao Sattappa Angol and submitted that to invoke protection under Order 21 Rule 97 of CPC it is the actual possession which is to be established by the party who is filing such application. Learned counsel also submitted that the present petitioner also filed application in the RFA seeking impleadment in the said appeal. But the said application also came to be rejected by this Court by its order. In view of these developments the question of allowing the applications filed by the BDA seeking protection will not arise at all. Hence, the writ petitions having no merits, the same may be rejected.
6. Learned senior counsel for the petitioner further submitted that the BDA has also filed the suit in O.S.No.2070/2013 before the City Civil Court, Bengaluru, seeking relief of declaratory decree that the lease agreement between respondent No.1 and 2 herein in respect of the suit schedule property is violative of
8
Section 3 of the aforesaid Act and the petitioner authority has also sought for consequential relief of permanent injunction. He has submitted that in the said suit status-quo order has been passed by the said Court.
7. I have perused the grounds urged in this petition, impugned order passed by the Court below, which is challenged in this writ petition, the documents produced by the petitioner along with the petition, so also the decisions relied upon by the learned counsel for respondent No.1-decree holder, which are referred above and also the decisions relied upon by the learned senior counsel for the petitioner, which are as follows:
i. (2010) 10 SCC 405 in the case of Anwarbi vs. Pramod D.A.Joshi and others.
ii. AIR 2002 SC 3083 in the case of Tanzeem-e- Sufia vs. Bibi Haliman and others
iii. 2014 AIR SCW 6552 in the case of Sameer Singh and Anr. Abdul Rab and Ors.
9
I have perused the relevant paragraphs in the said decisions about which learned senior counsel for the petitioner drew the attention of this Court to the said paragraphs.
8. As it is submitted by the learned counsel for the respondent No.1-decree holder, to maintain the application filed before the executing Court, the petitioner has to show the actual and physical possession in respect of the property on which the decree has been obtained by respondent No.1. Looking to this contention, the petitioner-authority has not placed any material before the Trial Court to show that they are in actual possession and enjoyment of the said property, therefore, unless and until the actual possession is shown, the protection under Order 21 Rule 97 of CPC cannot be given in favour of such party. As submitted by the learned counsel for respondent No.1-decree holder, the acquisition proceedings have already been quashed by the order of this Court, but the
10
learned counsel for the petitioner has submitted that it is not in respect of the entire acquisition proceedings but it is only with regard to some portion of the property, and he has also submitted that the writ appeal has been preferred against the said order, which is pending.
9. It is an undisputed fact that the petitioner also filed an application under Order 1 Rule 10(3) of CPC in the Regular First Appeal proceedings contending that he is also a necessary party to the said RFA, but ultimately this Court rejected the said application filed by the petitioner herein. Persuing the decisions relied upon by the learned senior counsel for the petitioner in respect of the case of the petitioner, which are referred above, and perusing the relevant paragraphs in the said decisions, it is no doubt true, when such applications are filed before the executing Court, they are to be heard on merits by giving an opportunity to both sides as if the application is an independent suit, then only the
11
application is to be disposed of. But, in the case on hand, when the application was filed by the petitioner herein before the Trial Court, the respondent No.1- decree holder filed the objection statement to the said application, ultimately, the matter was heard, and after hearing the matter and considering the contentions raised by both sides, the executing Court passed the considered order rejecting the said application.
10. Therefore, looking to the order passed by the Trial Court, it cannot be said that no opportunity has been given to the petitioner herein while hearing the said application. The order passed by the executing Court is a well-reasoned order and no illegality has been committed by the executing Court in passing such order. Hence, there are no justifiable and valid grounds for this Court to interfere into the order passed by the executing Court on the said applications. Accordingly, petitions are hereby rejected.
12
However, the observation made by this Court in the body of this order is only for the purpose of disposal of this petition and the executing Court shall not be influenced by the said observations while considering the other aspect of the matter.
Sd/-
JUDGE
bkp/BSR