SUSHEELA V. SHETTY Vs. SAROJINI AND ORS.

JUDGEMENT

(1.) Heard the learned Counsel appearing for the Writ Petitioner and also the learned counsel appearing for the respondent - plaintiff.

(2.) This Writ Petition is filed by the Writ petitioner - obstructer challenging the order passed by the trial Court dated 04.04.2015 on the application I.A. No. 2 (Annexure -E) and also to quash the judgment and order dated 06.01.2016 passed by the Principal Senior Civil Judge, D.K. in M.A. No. 13/2015 (Annexure -H).

(3.) The learned Counsel appearing for the Writ Petitioner made the submission that earlier husband of the present Writ Petitioner was the tenant of the suit schedule property. After demise of her husband, the present Writ Petitioner continued in the suit schedule property and continued the hotel business, which was run by her husband. The learned Counsel further made the submission that the respondent -plaintiff filed the suit against the sons of the present Writ Petitioner without arraying the present Writ Petitioner as a party in the suit seeking possession of the suit schedule property. Hence, the learned Counsel submitted that the judgment and decree was obtained behind her back though she continued in possession and she was not arrayed as a party. He also made the submission that as the judgment and decree was not challenged before the Appellate Court, the respondent - plaintiff filed the Execution Petition and looking to the order passed by the Executing Court, it was observed that since the decree is within two years, notice was dispensed with to the Judgment Debtor and delivery warrant was issued. The learned Counsel submitted that when the Court Ameena came to execute the delivery warrant, then only the present Writ Petitioner came to know about the suit and judgment and decree passed in the said suit. Immediately, thereafter, she filed an application I.A. No. 2 under Order XXI Rule 97 of CPC. The learned Counsel submitted that when such an application was filed by the Writ Petitioner, the Executing Court was supposed to conduct an enquiry but without such enquiry, the Executing Court proceeded to pass the order on the application I.A. No. 2 and the said application was rejected which procedure is illegal and hence, learned Counsel submitted that even in the order which was passed by the Executing Court wherein it was referred that the licence to run the hotel business is in the name of present petitioner. Inspite of that, no proper enquiry was conducted in the matter and hence, it is his submission that to avoid multiplicity of proceedings, it is necessary to set aside the order passed by the trial Court on the application I.A. No. 2 and to direct the Executing Court to conduct enquiry on the application filed by the Writ Petitioner and then to proceed in the matter in accordance with law. In support of his contentions, the learned Counsel appearing for the Writ Petitioner relied upon two decisions reported in : AIR 1998 SC 1827 and : ILR 1991 KAR 254 (DB).