Smt. Chanamma and Smt. Kalyanamma vs Smt. V. Lalitha Vasudev and Sri. R. Nagaraja Nayak

A.N. Venugopala Gowda, J.—The 1st Respondent has instituted execution proceedings to execute the decree passed in O.S. 7590/01. An

application was filed on 11.2.05 to attach the property stating that it belongs to the 2nd Respondent - JDR. An order was passed to issue

attachment warrant to attach the immovable property of the 2nd Respondent - JDR. Office of the Court put up a note that, on verification of the

EC, the name of the owner is not mentioned and the decree holder may be directed to furnish EC in form No. 15. The matter was posted before

the Court on 1.4.05. The Court permitted the decree holder to furnish the encumbrance certificate in form No. 15. On furnishing of an

encumbrance certificate along with a memo, the Court has passed on order on 12.4.05 directing the office to verify and report. Upon examination,

the office has put up a note that the owner''s name is not mentioned and hence the decree holder may be directed to furnish the assessment extract.

Again on 25.05.05, the office put up a note that on verification of the EC in form No. 15, since name is not forthcoming, the decree holder may be

directed to furnish assessment register extract. Two encumbrance certificates were filed, acting on which, the Trial Court has passed the order of

attachment. The Petitioners being aggrieved by the order passed on 25.5.05, filed an application under Order 21 Rule 58 of CPC and also an

application to stay the sale. The execution Court passed an order on 7.12.06, directing that the sale of the attached property be postponed till

further orders. I.A.11 was filed to recall the order dated 12.8.05 to which objection was fifed by the decree holder. Upon consideration, the Court

below has passed the order dated 13.10.09, the validity of which has been questioned in this writ petition.

Heard the learned Counsel. I have perused the writ papers.

The impugned order refers to the statement of facts and the reliance placed by the learned Counsel appearing on behalf of the parties. It is

concluded by recording a finding as follows:

Bearing in mind the principles and facts of the case, it is evident that the application is filed after two years after conclusion of the evidence of the

objector. The grounds urged by the decree holder is that the application is not maintainable for the simple reason that the objector herself wanted

to set up the claim stating that the property belonged to Ramaswamy Naik who is the father of judgment debtor. So under the attending

circumstances it does not lie in the mouth of the objector to play both hot and cold at a time. Therefore, the application requires to be rejected.

Therefore, I am of the considered view that the application filed by the objector is devoid of merits and hence answer point No. 1 in the negative.

In my opinion, the Trial Court has not considered the case of the parties in the correct perspective. There is no appreciation of the contentions

of both the parties in the correct perspective. The impugned order in the facts and circumstances of the case cannot be termed as a reasoned

order. In a decision reported at AIR 2007 KAR 9 (Punjab National Bank and Anr. v. Anwar Sheriff), a Division Bench of this Court has held as

follows:

The desirability of a speaking order while dealing with the interim prayer sought for by a party cannot be lightly ignored, more so when both the

parties have been heard and they have raised several contentions and as also when the same is amenable to further avenue of challenge. The

requirement of indicating reasons in such cases has been judicially recognized as imperative. Reason is the heart beat of every conclusion, and

without the same it becomes lifeless. Reasons are live links between the mind of the decision taker to the controversy in question and the decision

or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the

inscrutable face of the sphinx"", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the

power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least

sufficient to indicate an application of mind to the matter before Court Another rationale is that the affected party can know why the decision has

gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out.

The impugned order when examined in the"" light of the said declaration of law, cannot be sustained.

For the foregoing reasons, the writ petition stands allowed. The impugned order stands quashed.

The matter stands restored to the Trial Court for reconsideration of the matter afresh and for passing of order keeping in view the observations

made supra and in accordance with law.

Contentions of both parties are kept open for consideration.

In order to facilitate the Court below to expedite the consideration of the matter, both the parties are directed to appear before the Court below

on 28.9.10 and receive further orders. The Court below is directed to consider and dispose of the matter as early as possible and at any event,

before 18.12.10.