G. RAMESH Vs. K. S. SHYAMALA

JUDGEMENT

(1.) The short question that arises for consideration in this petition is whether the executing Court could have issued delivery warrant deferring an application filed by the petitioner under Order XXI Rule 97 of the Code of Civil Procedure 1908 (for short, 'CPC). The impugned order is dtd. 26/9/2022 in Execution No.79/2010 on the file of the II Additional Senior Civil Judge, Bengaluru Rural District (for short, 'the executing Court').

(2.) This Court must record that the contesting Respondent - Decree Holder does not dispute that the petitioner's application under Order XXI Rule 97 of CPC is yet to be decided, but her contention is that similar application is rejected and therefore the executing Court is justified in issuing the delivery warrant notwithstanding the pendency of the petitioner's application. This contention is called in question on behalf of the petitioner by his learned counsel, Sri K.V.Narasimhan, relying upon the settled position that the application under Order XXI Rule 97 of CPC will have to be decided before further proceedings are continued in the execution proceedings to enable complete adjudication, and the petitioner must have an opportunity to say on the maintainability of the application which now remains foreclosed.

(3.) Sri Harsha Kumar Gowda H.R., the learned counsel who appears for the first Respondent, submits that any delay in delivery of warrant would enable the petitioner to transfer the subject property and further delay the execution of the proceedings. Sri.K.V.Narasimhan in rejoinder, submits that this Court could record the petitioner's undertaking that he will not create any third party interest in the subject property until his pending application under Order XXI Rule 97 of CPC is decided.