LATHEEF Vs. HOSDURG SERVICE CO-OP BANK

JUDGEMENT

(1.) This appeal is filed challenging the order dated 17.02.2024 in E.A.No.93 of 2023 in E.P.No.138 of 2011 of the Subordinate Judges Court, Hosdurg. Appellant herein was the petitioner in the E.A. and judgment debtor in the E.P. Respondent herein was the respondent in the E.A. and decree holder in the E.P.

(2.) Appellant is aggrieved by the dismissal of an application filed by him under Order 21 Rule 97 of the Code of Civil Procedure (CPC) resisting delivery of possession to the auction purchaser. E.A.No.60 of 2023 had been filed by the auction purchaser to pass an order of delivery of possession of the property purchased by him in court auction. Appellant filed E.A.No.93 of 2023 contending that he has been residing with his wife and children in his house situated in a relevant property which was a land having an extent of 30 cents. He contended that he came to know about the delivery proceedings only when Amin came to take possession of the property. He resisted delivery contending that the said property had already been subjected to forfeiture by the Judicial First Class Magistrate Court-I, Hosdurg and the learned Magistrate after attaching the said property had directed the District Collector, Kasaragod to act as Administrator of the same. Thereafter, the appellant had sought permission from the JFCM to permit him and his family to stay in the said property and the said permission was granted. Pursuant to the same, the appellant and his family have been residing there. He had thus validly obstructed the execution and had filed the EA. The execution court, however, without clearly understanding the scope of Order 21 Rule 97, dismissed the application preferred by him vide the impugned order without affording him an opportunity to adduce evidence. Hence this appeal.

(3.) Heard Sri. Saneesh Kumar K. Advocate, for the appellant and Smt.Narayani Harikrishnan, Advocate for the respondent.