D. JAYACHANDRAN Vs. SAVITHA

JUDGEMENT

(1.) This writ petition is by the petitioner/Objector in Ex.No.2933/2018 on the file of the XL Additional City Civil & Sessions Judge at Bengaluru City (CCH-41) (for short, 'Trial Court') under Article 227 of the Constitution of India questioning the correctness of order dtd. 18/7/2023 on I.A.Nos.8 and 9 by which petitioner/Objector's request to call the Decree Holder for cross-examination is rejected.

(2.) Heard the learned counsel Sri.Y.P.Gokul for the petitioner and learned senior counsel Sri.A.G.Shivanna for Sri.Amar Gowda.K.S., for respondent No.1/Decree Holder. Perused the Writ Petition papers.

(3.) Learned counsel for the petitioner/Objector would submit that in the Execution filed to execute the decree of specific performance in O.S.No.1898/2017, the petitioner/Objector filed application under Order XXI Rule 90 of CPC as Objector. On completion of his evidence, the petitioner/Objector filed I.A.Nos.8 and 9 under Order XIX Rule 2 of CPC read with Sec. 94(e) of CPC seeking direction to the Decree Holder to subject herself for cross- examination. The Executing Court on consideration, rejected the application under impugned order. Learned counsel would submit that the petitioner/Objector is a lessee under Judgment Debtors under a registered lease. The Judgment Debtors by playing fraud, entered into an agreement with the Decree Holder. The suit in O.S.No.1898/2017 filed by the Decree Holder for Specific Performance was decreed. Learned counsel would submit that to cross-examine the Decree Holder, the petitioner/Objector filed applications which are rejected and the Trial Court committed grave error in rejecting the applications filed by the petitioner/Objector. Learned counsel in that regard, places reliance on the decision of the Division Bench of Nagpur High Court in the case of KANHAIYALAL S. DADLANI, SUPDT., CENTRAL EXCISE NAGPUR VS. MEGHRAJ RAMKARANJI (AIR 1954 NAG 260). Learned counsel would further contend that the respondents have acted collusively i.e., Judgment Debtors and Decree Holder to defraud and snatch the property to which the petitioner/Objector was entitled to. In order to unearth the fraud played by the parties, it would be necessary for the petitioner/Objector to cross- examine the Decree Holder.