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Judgment
M. Nagaprasanna, J
The petitioner is before this Court calling in question an order of the Executing Court which directs issuance of delivery warrant with police assistance, to break open the lock in respect of the schedule property in Execution Case 1141 of 2014.
Heard Sri M G Mahantesh, learned counsel appearing for petitioner and Sri H C Shivaramu, learned counsel for respondents 1 and 2.
The history of the issue dates back to 1993, when the petitioner and two others institute a suit in OS No. 3113/1993 seeking declaration and permanent injunction. The suit comes to be dismissed in terms of an order of the concerned Court dated 27-01-2014, the dismissal of which is challenged by the present petitioner and another before this Court in RFA No.802/2014. The first appellant therein is the present petitioner. The Regular First Appeal comes to be rejected. The rejection of which is questioned by this very petitioner before the Apex Court in SLP 4751 of 2024, only to be rejected. Therefore, the finding rendered by the concerned Court in OS 3113 of 1993 gets an imprimatur from the hands of the Apex Court by rejection of the SLP. The findings rendered therein have thus become final, as they were affirmed by the Co-ordinate Bench in RFA 802/2014.
The learned counsel for the petitioner now submits that a review is pending before the Apex Court seeking review of the order rejecting the aforesaid SLP. Be that as it may. The issue now is, as observed hereinabove, the 2nd respondent/decree holder now seek to execute the decree by issuance of a delivery warrant. The concerned Court passes an order of issuance of delivery warrant that is now challenged.
The application filed by the petitioner/father comes to be rejected for its non prosecution on the observations made therein. The observations are:
“Learned Counsel for Objector files I.A. No. 3 under Order 17 Rule 1 of CPC stating that, the RFA No.802/2014 filed by the Objector was reserved for judgment.
Advocate for DHr submitted that, assigning one or other reasons, the Objector took time for all these days. Since, there is no any stay against the, judgment and decree passed in the corresponding suit, there is no impediment to pass order on I.A. No. 2.
It is forthcoming that, RFA No.802/2014 was filed by the Objector herein against some third party challenging the judgment and decree passed in Ο.S.3113/1993 on the file of III Addl. City Civil and Sessions Judge, (CCH-25), Bengaluru. As such, no justification in granting further time.
One more thing for consideration is that, inspite of repeated opportunities, the Learned Counsel for Objector did not come forward to address his arguments on I.A. No. 2. Today, the matter is reserved to hear the arguments of Learned Counsel for DHr. As such, I.A. No. 3 is not sustainable, hence, rejected.
Accordingly, heard the arguments of Learned Counsel for DHr.
For orders on I.A. No. 2, call on 03-06-2023.
Sd/-
(12-04-2023)
XI Addl. C. C.& S. Judge,
Bengaluru, (CCH-8)”
The petitioner was the plaintiff and the suit filed by him comes to be dismissed. The plaintiff who had lost the suit, the appeal and the special leave petition before the Apex Court, is now wanting to stall the execution proceedings. On that basis, the Concerned Court has rejected the application filed by the father under Order XXI Rule 97. With the history of the case being thus, in the light of the judgment of the Apex Court in the case of RAHUL SHAH v. JINENDRA KUMAR GANDHI reported in (2021) 6 SCC 418, the order of the concerned Court does not warrant interference, in the peculiar circumstances. Though it is rejected for its non prosecution, it ought to have met its dismissal on its merit as well.
Petition stands dismissed. Interim order, of any kind operating shall stand dissolved.