A.B. SURYA Vs. C. SATHYANARAYANA

JUDGEMENT

(1.) THESE writ petitions assail the orders dated 04/12/2013 (Annexure "S" and "T"), passed on I.A. No. XII, in F.D.P. No. 114/2008.

(2.) THE relevant facts of the case are that the respondent herein had filed O.S. No. 6908/2000 and that suit ended in a compromise on 18/10/2001, a copy of the compromise petition filed under Order XXIII Rule 3 of the Code of Civil Procedure (CPC) is produced as Annexure "C" to the writ petitions. Thereafter, the respondent herein filed F.D.P. No. 114/2008. Several orders have been passed in the said proceeding. Ultimately, the Additional Commissioner (South), B.B.M.P., Bangalore, was appointed as Commissioner to submit his Report with reference to the implementation of the compromise decree. He submitted his Report on 16/01/2010 (Annexure "H"). The respondent herein filed his objections to the said Report, while the petitioner herein did not file any objection to the Report. Thereafter, applications I.As. VII and VIII were filed by the petitioner herein seeking various relief's before the trial Court. I.A.IX was filed by the obstructionist under Order XXI Rule 97 r/w Section 151 of CPC. Those applications were considered and by order dated 06/09/2013, the trial Court while dismissing the said applications directed reissuance of commission warrant to the Additional Commissioner (Revenue), B.B.M.P., Koramangala Ward, Mayo Hall, Bangalore, to identify and demarcate the share of the respondent herein as per the compromise decree dated 18/01/2001 and to submit his Report along with sketch to the Court on or before 26/10/2013 (Annexure "P"). At this stage itself, it can be stated that the Court Commissioner could not execute the commission warrant on or before 26/10/2013. In fact, the Commissioner visited the premises subsequently on 12/11/2013. It is stated that there were obstruction on the part of the petitioner herein in execution of the commission warrant and in that regard, the Report was submitted. In these circumstances, respondent herein filed I.A. No. 12, seeking assistance of the jurisdictional police for breaking open the locks of the premises and for taking all necessary steps for the due execution of the commission warrant. Objections were filed by the petitioner herein to the said application. By the impugned orders dated 04/12/2013, the applications filed by the respondent herein was allowed permitting the assistance of the jurisdictional police for the purpose of executing the commission warrant in case there was necessity. Further directions were also issued with reference to the execution of warrant. Those orders at Annexure "S" and "T", are assailed in these writ petitions.

(3.) THE scope of this writ petition is in a narrow compass inasmuch as the appointment of the second Commissioner to implement the compromise decree has not been assailed. The crux of the matter is with reference to the order dated 06/09/2013, wherein the second Commissioner i.e., the Joint Commissioner (Revenue), was directed to execute the commission warrant on or before 26/10/2013. On a perusal of the Report of the Commissioner dated 12/11/2013 (Annexure "P"), it becomes apparent that the commission warrant was not executed by 26/10/2013. No material is also brought to my notice to state that there was any extension of time by the trial Court for execution of the commission warrant. After the expiry of the date fixed by the Court for execution of the commission warrant, the Court Commissioner visited the premises on 12/11/2013. To this, there was objection on the part of the petitioner and the commission warrant could not be executed. The objection raised by the petitioner to the second Commissioner visiting the premises on 12/11/2013 was justified inasmuch as the Court Commissioner had visited the premises after the expiry of the date fixed by the Court for filing of the Report after due execution of the commission warrant. Because there was obstruction and objection raised by the petitioner on 12/11/2013, the respondent filed an application seeking assistance of the jurisdictional police for the execution of the commission warrant. That application was allowed on 04/12/2013. The trial Court while allowing that application has lost sight of the fact that the petitioner herein was justified in objecting to the Commissioner executing their commission warrant after expiry of the date fixed by the trial Court for execution of commission warrant. In the absence of there being any fresh date given by the trial Court for the execution of the commission warrant, the Court Commissioner had no jurisdiction to visit the premises in question on a subsequent date. Therefore, the objection raised by the petitioner on 12/11/2013 was justified. If that was so, the trial Court ought not to have allowed the application filed by the respondent herein, seeking assistance of the jurisdictional police for breaking open the locks on the premises in case of necessity. Therefore, the trial Court was not right in allowing the application filed by the Respondent herein. The impugned order is liable to be quashed.