Madhuvana House Building Co-Operative Society vs Lao And Assistante Commissioner Mysore Sub Division Mysore & Others

B. M. Shyam Prasad, J

The petitioner, who is the second Judgment Debtor in Ex. No.259/2009 on the file of the I Additional Senior Civil Judge and CJM, Mysuru, [for short 'the executing Court'], has filed this petition impugning the executing Court's order dated 20.07.2021. The original second respondent has succeeded in its application under Section 18 of the Land Acquisition Act, 1894 as also in the subsequent proceedings and thereafter, has commenced the aforesaid execution proceedings. The execution Court by the impugned order has dismissed the first respondent's application under Section 47 of the Code of Civil Procedure, 1908 [for short, 'the CPC'] objection to execution proceedings.

Sri. S.P. Shankar, learned senior Counsel is heard on behalf of the learned counsel for the petitioner, and the learned senior Counsel submits that the petitioner is constrained to approach this Court impugning the rejection of the application filed by the first respondent under Section 47 of the CPC as follows:

[a] The subject lands are notified for the benefit of the petitioner, and the petitioner being a beneficiary of the acquisition, should have been heard in the reference proceedings. But the petitioner is not even made a party in the reference proceedings and only the first respondent was arrayed as a party in such proceedings;

[b] The petitioner is impleaded in the execution proceedings for the first time and that too without seeking any relief against the petitioner. In the executing proceedings, the second respondent has sought for the relief of attachment only against the first respondent. Nevertheless, the executing Court has issued warrant for attachment of movables belonging to the petitioner;

[c] The petitioner is entitled to question the initiation of enforcement proceedings against the petitioner not only on the ground that the enforcement proceedings would not lie against the petitioner without the petitioner being impleaded in the reference and that the entire proceedings are vitiated by fraud resulting in miscarriage of justice.

[d] The petitioner is not a party to any of the proceedings either in the reference or in the subsequent appeal. The petitioner must have the liberty to canvass his case before the executing Court. However, the petitioner, because of bonafide circumstances, has not filed objection statement in the execution proceedings and the petitioner would be prejudiced if precipitous action are taken against the petitioner because of the rejection of the first respondent's application.

The learned senior Counsel submits that this Court, in the exercise of jurisdiction under Article 227 of the Constitution of India, must intervene and pass appropriate orders to protect the petitioner's interest in the light of the grounds urged with the executing Court issuing attachment warrant against movables belonging to the petitioner.

However, in the light of the grounds urged, especially that the petitioner has not filed any Statement of Objections, it would suffice for this Court to dispose of the petition with the observation that if the petitioner has not filed statement of objections contesting the execution proceedings urging grounds that would be unique and specific to the petitioner and if the petition was being contested only by the first respondent, the petitioner must have the liberty to contest the execution proceedings. If the attachment warrant is issued, the petitioner could also file necessary application for recall of such attachment warrant. The merits of the grounds urged by the petitioner for the first time in this petition will not be considered by this Court without prior consideration thereof by the executing Court.

For the foregoing, the petition stands disposed of with liberty to the petitioner, subject to all just exceptions, to file statement of objections and also the application for recall of attachment warrant, if issued, with the observation that if such statement of objections and application are filed, the executing Court must take appropriate decision in the interest of justice with all reasonable opportunity to the petitioner before any precipitous action is taken against any of the petitioner's assets.