C. HANUMEGOWDA Vs. LAKSHMAMA AND ORS.

JUDGEMENT

(1.) This writ petition is filed by the judgment debtor/appellant challenging the correctness of the order passed by the Senior Civil Judge & JMFC at Doddaballapura in R.A.(Ex) No. 45/12 dated 17.11.2012 wherein I.A. No. 2 filed by the petitioner under Order 41 Rule 5 read with Section 151 CPC was rejected.

(2.) The brief facts of the case are:

(3.) The learned counsel Sri Seshagiri Rao appearing for the petitioner argued that the Executing Court had no jurisdiction to entertain the application under Order XXI Rule 97 CPC and the appellate judge also erred in not exercising the jurisdiction under Order 41 Rule 5 CPC while rejecting the I.A. for stay of the order passed by the Executing Court under Order XXI Rule 97 CPC. The main contention of the learned counsel is that the Executing Court was not empowered to entertain an application under Order XXI Rule 97 CPC so as to adjudicate as regards the possession, in a proceeding under Order XXI Rule 32 CPC. It is contended that the power under Order XXI Rule 97 can be invoked in a proceeding either under Order XXI Rule 35 CPC or under Order XXI Rule 95 CPC and not under Order XXI Rule 32 CPC. The appellate court ignoring these provisions, has failed to exercise the jurisdiction vested in it by rejecting the application for stay and accordingly prayed to exercise the superintending powers of this Court.