IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 24^TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE R.NATARAJ WRIT PETITION NO.201000 OF 2024 (GM-CPC)

BETWEEN:

MR. RAMESH YADAV S/O MANIK PRABHU AGED ABOUT 67 YEAR R/AT MAIN BAZAR, LINGASUGUR-584122 DIST. RAICHUR …PETITIONER (BY SRI.ABDUL MUQHTADIR, ADVOCATE)

AND:

LATE HANUMANTAPPA MADIKAR SINCE DECEASED REP. BY HIS LRS 1. MRS. NINGAMMA @ LINGAMMA W/O LATE HANUMANTAPPA AGED ABOUT 66 YEARS R/AT VILLAGE KARADKAL, LINGASUGUR-584122 DIST. RAICHUR

2. MR. BASALINGAPPA S/O LATE HANUMANTAPPA AGED ABOUT 51 YEARS, RESIDING AT VILLAGE KARADKAL, LINGASUGUR-584122 DIST. RAICHUR

3. MR. NAGARAJ S/O LATE HANUMANTAPPA AGED ABOUT 49 YEARS R/AT VILLAGE KARADKAL, LINGASUGUR-584122 DIST. RAICHUR

4. MR. GUNDAPPA S/O LATE HANUMANTAPPA AGED ABOUT 47 YEARS R/AT VILLAGE KARADKAL LINGASUGUR-584122 DIST. RAICHUR

5. MRS. SHARANAMMA W/O SHIVARAYPPA AGED ABOUT 46 YEARS R/AT VILLAGE KARADKAL, LINGASUGUR-584122, DIST. RAICHUR

6. MRS. SHANKRAMMA W/O DEVAPPA AGED ABOUT 45 YEARS, R/AT VILLAGE KARADKAL LINGASUGUR-584122 DIST. RAICHUR …RESPONDENTS (BY SRI.D.P. AMBEKAR, ADVOCATE FOR R2 TO R6)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE AN APPROPRIATE ORDER/DIRECTION/WRIT IN NATURE OF CERTIORARI TO QUASH THE COMMON ORDER DATED 27.03.2024 ON I.A 1 AND 3 PASSED IN EP NO. 56/2023 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC AT LINGASUGUR VIDE ANNEXURE-G .

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE R.NATARAJ ORAL ORDER The petitioner, a Judgment Debtor in EP No.56/2023 pending consideration before the Additional Senior Civil Judge and JMFC, Lingasugur has filed this petition challenging an order dated 27.03.2024 by which, the Court entertained an application filed by the DECREE HOLDER under Order XXI Rule 35 (3) of CPC and issued a possession warrant. He has also challenged the rejection of his application under Order XXI Rule 29 of CPC.

2. A suit in O.S.No.147/2001 was filed for declaration of title and recovery of possession of the suit schedule property. The said suit was decreed on 28.07.2005. The Judgment Debtor filed RA No.85/2005 and RSA No.7197/2009 which were dismissed. The decree holder filed EP No.56/2023 to execute the decree. The Judgment Debtor filed objections to the execution petition contending that the measurement of the decreed property was not mentioned. The executing Court issued a delivery warrant which was entrusted to the bailiff for execution. The bailiff visited the property and submitted his report stating that the warrant could not be executed as the judgment debtors objected the execution on the ground that boundaries of the property were mentioned incorrectly and that the measurement of the property was not mentioned in the delivery warrant. Following this, an application was filed by the Decree holder under Order XXI Rule 35 (3) of CPC, which was entertained by the executing Court and a delivery warrant was issued. In the meanwhile the Judgment Debtor filed O.S.No.79/2024 against defendants for declaration of his title and for perpetual injunction in respect of property bearing No.2-9- 210/A. He therefore filed an application under Order XXI Rule 29 of CPC to stay the execution until disposal of O.S.No.79/2024. The said application was rejected in terms of the impugned order. Being aggrieved by the said order, the judgment debtor is before this Court.

3. The learned counsel for the Judgment Debtor submitted that once a bailiff submitted a report that the delivery warrant could not be executed in view of the objection raised by the judgment debtor that the boundaries did not tally and the measurement of the property was not mentioned in the decree, it was the duty of the Court under Section 47 of CPC to adjudicate the said issue and thereafter issue a possession warrant. He therefore contends that the impugned order passed by the executing Court issuing a possession warrant wi