Aravind Kumar, J.

1. Judgment debtor in Execution No. 1094/2015 is seeking for quashing of the order dated 15.10.2015 -Annexure-F, whereunder the Executing Court has ordered for issuance of delivery warrant.

2. I have heard the arguments of Sriyuths S Shaker Shetty, learned Advocate appearing for writ petitioner - judgment debtor and H.S. Dwarakanath, learned Advocate appearing for respondent - decree holder.

3. Parties are referred to as per their rank before the Executing Court.

4. Decree holder filed the execution petition in question i.e., Execution Case No. 1094/2015 for the relief of issuance of delivery warrant in respect of the property bearing No. 35-A, situated at Kengal Hanumanthaiah Road, Bengaluru, morefully described in the schedule to the Execution Petition contending inter alia that as per the compromise decree, judgment debtor had not vacated the property and undertaking given has been violated and hence, in order to enjoy the fruits of the compromise decree, execution case as noticed herein above, came to be laid by the decree holder before the City Civil Court, Bengaluru (CCH-9).

5. The Executing Court by order dated 26.05.2015 issued cause notice to the judgment debtor. Subsequently by order dated 24.08.2015 cause notice was ordered to be issued to the judgment debtor through special Bailiff. On 04.09.2015 Executing Court permitted the decree holder to take notice to judgment debtor through Registered Post Acknowledgment Due and by Courier service. Thereafter, by order dated 09.10.2015 held notice of service sufficient and after hearing the learned Advocate appearing for decree holder posted the matter for orders to 15.10.2015 and on 15.10.2015 ordered for issuance of delivery warrant. On the same day, learned Advocate appearing for judgment debtor filed an application under Section 47 of CPC for which opportunity was extended to the decree holder to file objections and the Executing Court reiterated the issuance of delivery warrant as per order already passed.

6. Thereafter wards, matter has been preponed by Executing Court and after receiving the application filed by the Objector under Order 21 Rule 27 CPC, adjourned the matter for pronouncing orders, after hearing the arguments of advocates. On the next date i.e., on 31.10.2015, an application under Order 21 Rule 97 CPC was filed by the Objector and matter was adjourned from time to time. In the meanwhile, the judgment debtor has filed the present petition calling in question the impugned order dated 15.10.2015 - Annexure-F whereunder Executing Court has issued delivery warrant.

7. It is the contention of Sri Shaker Shetty, learned Advocate appearing for the judgment debtor that order passed by this Court in C.P. No. 60/2011 dated 12.11.2011-Annexure-E would create a new tenancy. He would also contend that earlier notice of termination issued by the decree holder terminating the tenancy is wiped out on account of new tenancy created and thereby a fresh lease had been created. Therefore, execution proceedings is bad in law. He would also submit when an application under Section 47 CPC is filed before Executing Court, a duty is cast on the Executing Court to examine the said application and consider all questions raised therein and without adjudicating the said application, delivery warrant could not have been issued and Executing Court would have no jurisdiction to issue delivery warrant in such circumstances.

7.1 He would also elaborate his submission by contending that a new lease came to be created under the doctrine of Novatio since earlier contract had come to an end i.e., on 30.04.2015 and after expiry of two years from 01.05.2011, petitioner having started to pay enhanced rent of 5% over and above Rs. 1,50,000/- per month and till the said new lease created after 01.05.2011 and continued till 30.04.2015 is terminated by issuance of fresh notice, the decree for ejectment obtained would not be executable. He would further submit that affidavit of unde