The obstructer in execution proceedings must establish an independent right over the property and comply with the mandatory provisions of Order 21 Rule 54 and 66 for proclamation and sale of property.

JUDGMENT

1. These two writ petitions arise out of the order passed in Ex.C.No.2637/2018 pending on the file of Additional City Civil and Sessions Judge, Bengaluru (CCH-67) and therefore they are heard together and disposed of by a common order with the consent of the learned counsel appearing for the parties.

2. Facts leading to filing of these two petitions narrated in brief are, the petitioner in W.P.No.19363/2019 had filed Ex.C.No.2367/2018 before the Additional City Civil and Sessions Judge, Bengaluru (hereinafter referred to as execution Court) to execute the award dtd. 6/12/2016 passed by the Deputy Registrar, Cooperative Societies, Chamrajpet, Bengaluru against respondents no.1 and 2 herein.

3. In the said proceedings the third respondent who is the wife of the first respondent herein had filed two separate applications under Order 21 Rule 59 read with Sec. 151 of CPC and under Order 21 Rule 97 and 98 read with Sec. 151 of CPC. The said applications were opposed by the decree holder/petitioner herein. However, executing Court had allowed the application filed under Order 21 Rule 59 read with 151 of CPC and proceeded to hold an enquiry on the applications filed by respondent no.3 herein under Order 21 Rule 97 and 98 of CPC and being aggrieved by the said order dtd. 2/3/2019, the decree holder has filed W.P.No.19363/2019.

4. W.P.No.9880/2019 has been filed by the first judgment debtor challenging order dtd. 22/1/2019/23/1/2019 in execution case No.2637/2018 by the executing Court as per Annexure -B, on the ground that the said order issuing proclamation and sale warrant of the mortgaged property has been passed without fixing the valuation and without passing order of attachment in respect of the said property.

5. Learned counsel for the petitioner in W.P.No.19363/2019 submits that the third respondent is none other than the wife of the first respondent who is the judgment debtor no.1 and she has not claimed any independent right over the mortgaged property, in respect of which she has raised obstruction before the execution court under Order 21 Rule 97 of CPC. He submits that unless the obstructer has got an independent right over the property of which possession is sought to be taken by the decree holder, the executing Court was not justified in entertaining such an application. He submits that the third respondent who is none other than wife of the first respondent has not placed any material before the execution Court to show that she has got independent right over the property, which is sought to be brought for sale. In support of his contentions he has relied upon the judgment of coordinate Bench of this Court in case of SULOCHANA W/O. RAMARAY VERNEKAR AND OTHERS VS. DEVAPPA BADIGEPPA HUDELAKOPPA AND OTHERS reported in 2021 (2) KLR 310 and in the judgment passed by the coordinate Bench of this Court on 5/4/2016 in RFA No.1412/2011.

6. Per contra, learned counsel appearing for respondent no.3 has raised preliminary objection with regard to the maintainability of this writ petition on the ground that petitioner ought to have preferred revision under Sec. 115 of CPC and writ petition as against the impugned order is not maintainable. He has relied upon the judgment in the case of SHIV SHAKTI COOP.HOUSING SOCIETY, NAGPUR VS. SWARAJ DEVELOPERS AND OTHERS reported in 2003 (6) SCC 659, in support of his arguments. He further submits that the award passed in favour of the petitioner is a collusive award and execution has now been filed only with a sole intention to dispossess the third respondent to whom the property in question has been given by her husband/judgment debtor no.1 for her maintenance purpose. He submits that the third respondent's rights are to be adjudicated before the executing Court in an enquiry as provided under Order 21 Rule 97 and 98 of CPC. Therefore, the executing Court was justified in passing the order impugned.

7. Learned counsel for the petitioner in W.P.9880/2019 has referred to the order dtd. 22