Mahadev vs Shakilahmed & Ors.

Short grievance of the petitioner is that he had filed an application under Order XXI Rules 97 to 101 read with Section 47 of the Code of Civil Procedure in Execution Proceedings in Ex.P.No.55/2026 seeking adjudication of his right in respect of the property which is subject matter of decree passed in O.S.No.114/2021, which is sought to be executed in the said execution proceedings.

Learned counsel for the petitioner drawing attention to this Court to the daily order sheet of the Execution Petition submit that, petitioner who was not party either in the original proceedings nor in the execution proceedings learnt that by order dated 29.09.2026 the Executing Court had issued delivery warrant and had also directed the jurisdictional police to render assistance in executing the warrant and posted the matter to be listed on 29.10.2026.

That on learning about the same, petitioner had made an application on 30.09.2026 seeking advancement of the matter. Though the matter was advanced since there was no representation on behalf of the petitioner, the matter was directed to be called on hearing date.

Again the petitioner moved an advance application on 03.10.2026 on which date the above application under Order XXI Rules 97 to 101 of CPC was filed. That without considering the said application, the Executing Court has posted the matter to the regular hearing date before which date the warrant is expected to be executed in terms of the previous order of the Executing Court dated 29.09.2026.

Learned counsel for the petitioner submits that the whole exercise would be rendered infructuos as the petitioner is in possession of the property subject matter of the execution in terms of registered deed of sale which was executed in his favour by the vendor of the property as far back as in the year 1987. If an opportunity is not granted the petitioner would be rendered remediless.

Since no adverse orders are sought, notice to the respondents is dispensed with.

Heard and perused records.

The daily order sheet of the Executing Court indicates that by order dated 29.09.2026, the Executing Court has directed issuance of delivery warrant with an intimation to the Police Inspector, Suburban Police Station, Dharwad, to render assistance to the Court Bailiff in executing the possession warrant.

Bailiff is also directed to execute the possession warrant and if necessary, by breaking open the lock. This order has remained unaltered and effective.

In the meanwhile, on 30.09.2026 and on 03.10.2026, attempt has been made by the petitioner herein to seek advancement of the matter and has filed an application under Order XXI Rules 97 to 101 of CPC.

The Executing Court has not passed any order on the said application instead, has listed the matter to be heard on 29.10.2026 without staying or recalling the order of delivery possession.

There is substance in the submission made by learned counsel for the petitioner. If the delivery warrant is executed, the petitioner's application filed under Order XXI Rules 97 to 101 could be rendered infructuous.

In that view of the matter, the following;