DATED

23.04.2021

IN

ALLOWING

IA

NO.2

CONSEQUENTLY, QUASH THE DELIVERY WARRANT ISSUED IN EP

NO.73/2014 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE,

CHIKKODI, VIDE ANNEXURE-J.

THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING

BEEN RESERVED FOR ORDERS ON 20.4.2022, THIS DAY, THE COURT

THROUGH VIDEO CONFERENCE PRONOUNCED THE FOLLOWING:

ORDER

The petitioner is before this Court seeking for the

following reliefs:

a.

Issue a writ or direction in the nature of Certiorari

quashing the Order dated 23.04.2021 in allowing IA

No.2. Consequently, quash the delivery warrant

issued in EP No.73/2014 on the file of Principal Senior

Civil Judge, Chikkodi, vide Annexure-J.

b.

Issue any other writ or direction which this Hon9ble

deems fit to meet the ends of justice.

Brief facts of the case are:

2.1. The

petitioners

are

Judgment

debtors

and

respondents are decree holders in Execution

Petition No.73/2014 pending on the file of the Prl.

Senior Civil Judge, Chikodi.

2.2. The respondents who are plaintiffs had filed a suit

against the petitioners in O.S.No.65/2010 before

the Senior Civil Judge, Chikodi seeking for a decree

- 3 -

of specific performance and a direction to the

petitioners herein to execute a sale deed in respect

of the suit land as per the agreement of sale dated

29.03.2008.

2.3. Though

the

petitioners

entered

appearance

through their counsel, the petitioners allege that

due to the mistake on part of the counsel, written

statement on behalf of petitioners was not filed, the

suit proceeded to trial and the trial Court decreed

the suit vide Judgment dated 26.06.2013 in

pursuance of which a decree was drawn up.

2.4. The petitioners filed Mis. No.60/2014 under Order

9 Rule 13 of CPC seeking for setting aside the

Judgment and decree dated 26.06.2013 which also

came to be dismissed for non-prosecution on

9.08.2017. Prior to the dismissal of Mis. Petition

No.60/2014, the respondents filed Execution

proceedings in E.P.No.73/2014. The petitioners

thereafter filed first appeal in RFA No.100033/2021

- 4 -

on 12.01.2021 challenging the judgment and

decree passed in O.S No. 65/2010. Though the said

RFA is pending, there is no stay of the execution

proceedings ordered in the said appeal.

2.5. The petitioners on being served in the execution

proceedings, entered appearance through their

counsel,

petitioner

No.1

filed

statement

of

objections to the execution petition which came to

be adopted by petitioner No.2 by filing a memo.

Petitioner No.1 had also filed additional objections

subsequently.

2.6. In the Statement of objections, petitioner No.1 has

contended as under:

2.6.1. The advocate engaged by the petitioners earlier

in O.S No.65/2010 had colluded with the

respondents herein. The said advocate failed to

file written statement and the suit came to be

decreed ex-parte which came to the knowledge

of the petitioners only on 05-09-2014, as they

are illiterates and relied on the advocate.

- 5 -

2.6.2. The respondents are in money lending business

under the style and name M/s Dhanalaxmi

Finance Corporation and M/s Laxmi Finance

Corporation. The petitioners have borrowed

money from these business and has no intention

of selling the suit property.

2.6.3. The present valuation of the suit property is

more than a crore rupees.

2.6.4. Since there is no specific prayer for relief of

possession, the right to possession does not

accrue to the respondents.

2.6.5. The suit land is in the name of one Marudevi who

has not been impleaded in the suit as such she

is not bound by the decree consequently the

respondents are not entitled to the suit

property.

3.

Respondents

filed

IA-1

in

the

said

execution

proceedings

seeking

appointment

of

Court

Commissioner to execute a registered sale deed in

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favour of respondents. The said application came to be

allowed on 30.08.2018.

4.

The Execution Court taking note of the fact that a draft

sale deed has been furnished and no objections have

been filed by the petitioners was of the opinion that in

terms of the