M.T. Lingaiah vs Madivalara R. Janaki

A.S. Bopanna, J.

The petitioner is before this Court assailing the order dated 9.4.2014, passed in Execution case No. 32/2012.

The petitioner herein is the judgment-debtor in O.S. No. 138/2001. In respect of the decree granted in favour of respondent herein in the said suit, the execution petition has been filed. The delivery warrant had been issued on the earlier occasion but had been returned by the Process Nazar by making endorsement that it is difficult to execute without proper identification of the property. Subsequent thereto, the Executing Court has passed the order impugned herein dated 9.4.2014. The order directs issue of fresh delivery warrant and the Process Nazar is permitted to take assistance of the surveyor only to ensure that the warrant is executed as per the decree. The judgment-debtor claiming to be aggrieved by such order is before this Court.

Heard the learned Counsel for the petitioner and the learned counsel who has entered caveat for the respondents. In the light of the contentions put-forth, I have perused the writ papers including the order impugned herein.

Learned Counsel for the petitioner refers to delivery warrant which had been issued on the earlier occasion and endorsement that had been made by the Process Nazar. A perusal of the same, no doubt, indicates that Process Nazar has made endorsement that on the spot, he was unable to identify the property for the purpose of delivering possession. In fact, he has indicated that it would be necessary to have a surveyor to earmark that portion. The Court below while taking note of the same, has passed a detailed order dated 9.4.2014.

A perusal of the same would indicate that the Executing court was of the opinion that the endorsement being put-forth by the Process Nazar is not justified. In that regard, reference has been made to the nature of the claim made by the plaintiff and defence that has been put-forth. In that view, the identification of the property that was made by appointment of the Commissioner in the suit and the report being marked as Exs.C1 and C3 has been noticed. In that light, the Executing court being of the opinion that the identification of the property has already been made, was further of the opinion that the assistance of the surveyor would be necessary only to see that warrant is executed and the property is delivered to the decree-holder.

The said consideration as made by the Executing Court is based on the record that was available before it and ultimately when the extent of the property has been identified and the decree has been granted in favour of the plaintiff, at this stage, as rightly pointed out by the Executing Court, if any other exercise is undertaken, it would only amount to review of judgment which is not desirable nor is it permissible. Hence, the manner in which the Executing Court has concluded for issue of fresh delivery warrant by taking assistance of surveyor only to ensure that warrant is executed as per the decree is unexceptionable and therefore, the same does not call for interference.

Accordingly, the petition being devoid of merit is disposed of.