Respondent

No.1

had

filed

a

case

in

H.R.C.

No.10049/2013 for directing the respondent No.2 to handover

vacant possession of the property shop No.1, Property

No.352/649/75/1, Ward No.51, situated at Ramamurthy Nagar

Main Road, K.R. Puram Hobli, Bengaluru measuring 9 X 12 feet.

The Jurisdictional Court allowed

the petition,

directing the respondent No.2 herein to hand over vacant

possession of the schedule property. The respondent No.2

having not handed over vacant possession of the schedule

property, the respondent No.1 filed Ex. No.15164/2014, and in

the said execution proceedings, the respondent No.2 was

placed ex-parte and delivery warrant was issued to take

possession of the subject property by breaking open the lock

with the help of the police. The respondent No.1 having filed a

memo stating that she has taken possession of the schedule

property, the execution case was closed.

3.

The petitioner herein contending that she was

dispossessed by virtue of the delivery warrant filed an

application under Order 21 Rules 99 to 101 of CPC to recall the

delivery warrant and put up her in possession of the schedule

property. The Execution Court rejected the application, against

which the present petition is filed.

4.

Learned counsel for the petitioner submits that the

impugned order passed by the Execution Court is contrary to

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the evidence on record, which establishes that the petitioner

was in possession of the subject property as a tenant under one

Sri Venkataramanappa and she has been dispossessed illegally

by executing the delivery warrant which was issued against

respondent No.2. Hence he submits that the impugned order

passed by the Execution Court is not sustainable in law.

5.

On the other hand, the learned counsel for

respondent No.1 submits that the petitioner is claming to be a

tenant under Sri V.Ashwath S/o Sri. Venkataramanappa who

was permitted to retain 400 sq.feet and the petitioner was not

in possession of the schedule property as tenant under the

respondent No.1.

6.

She further submits that the material on record

clearly discloses that respondent No.2 was in possession of the

subject property as tenant. Hence she submits that the

impugned order passed by the Execution Court is perfectly legal

and does not warrant interference.

7.

Considered the submissions of the learned counsel

for the parties.

8.

The respondent No.2 having not vacated the

schedule property, the respondent No.1 filed Execution Case for

executing the order of eviction passed against the respondent

No.2. In the said execution proceedings, the bailiff returned

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delivery warrant stating that the subject property was locked,

and thereafter the delivery warrant was issued authorizing the

bailiff to execute the order by breaking open the lock.

9.

The petitioner contends that under the said delivery

warrant, the petitioner was illegally dispossessed from the

schedule property. The petitioner to substantiate her claim

that she was in possession of the schedule property as tenant

under one B.Ashwath has produced copies of the Electricity

Bills, the order of temporary injunction passed in O.S

No.5294/2012, the lease agreements dated 02.07.2007 and

01.01.2012 and also the communication issued by the

Tahasildar dated 17.07.2014 and tax paid receipts in all 32

documents.

10.

The Execution Court rejected the application filed by

the petitioner herein for the following reasons:

21. "The above order sheets and orders reveals

that, in MFA No.926/07, both parties i.e., legal

representatives of Sri. Venkataramanappa and this

decree holder Rukminiamma have amicably settled the

matter and entered into a compromise. As per the said

terms and conditions of the compromise petition, the

'A'

schedule

property

belongs

to

the

legal

representatives of late Venkataramanappa measuring

400 sq.ft. and the 'B' schedule property measuring

1000 sq.ft. belongs to this decree holder. The

judgment and decree passed in terms of compromise

petition. As per the sai