DATED

22.01.2019/23.01.2019

(ANNEXURE-D) PASSED IN EXECUTION CASE NO.2637/2018, ON

THE FILE OF 66TH ADDL.CITY CIVIL JUDGE AND SESSIONS

JUDGE, BANGLORE (CCH-67) BY SETTING ASIDE THE ORDER OF

SALE.

THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS

COURT MADE THE FOLLOWING:

ORDER

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

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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 dated 06.12.2016

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

Section 151 of CPC and under Order 21 Rule 97 and 98 read

with Section 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

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herein under Order 21 Rule 97 and 98 of CPC and being

aggrieved by the said order dated 02.03.2019, 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

dated

22.01.2019/23.01.2019 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

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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 05.04.2016 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 Section 115 of CPC and writ petition as against the

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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

re