Execution Court Should Indicate Reason For Posting Execution Petition For Enquiry: Karnataka HC

The Karnataka High Court observed that an Executing Court has to indicate the reason for posting an Execution Petition for an enquiry.

The Court allowed a Writ Petition challenging the order of the Execution Court that posted the execution petition for enquiry.

The Court noted that the Execution Court had scheduled an inquiry for the execution petition without providing valid reasons. The Court noted that Rule 35 of Order 21 of the Civil Procedure Code, 1908 (CPC) doesn't necessitate an inquiry for a possession decree unless contested by the judgment debtor.

The Bench of Justice S.G.Pandit observed, “the Executing Court without recording any reason or the purpose of enquiry, posted the execution petition for an enquiry. The order should indicate the reason for posting Execution Petition for an enquiry. In normal circumstances, no enquiry would be necessary when a decree for possession is put into execution in terms of Rule 35 of Order 21 of CPC, but the same would depend on the objection that would be raised by the judgment debtor”.

Advocate M Sudhakar Pai appeared for the Petitioner and Senior Advocate P. P. Hegde appeared for the Respondent.

The Petitioners approached the High Court challenging an order from the Execution Court. The order scheduled the execution petition for an inquiry. The Petitioners asserted that the possession suit was decreed for the Respondent to hand over vacant possession of premises and pay a mesne profit. The Executing Court's decision to post the execution petition for an inquiry was contested by the Petitioners, arguing that no such inquiry was necessary for a possession decree. They also contended that Rule 35 of Order 21 of the CPC does not support an inquiry in this context.

The Court noted the Respondent-Judgment Debtor's primary objection was that the executed decree pertains to a 600 sq. ft. house property, while the judgment debtor occupies more than 2000 sq. ft. The Court noted that proceeding with execution without proper property identification would cause irreparable injury and hardship to the judgment debtor.

The Bench noted that the Executing Court must consider objections raised by the judgment debtor and decide whether an inquiry is necessary. “The Executing Court is bound to consider the objections raised by the judgment debtor and pass appropriate order. In the instant case, the Execution Court is expected to consider objection filed by the judgment debtor and has to decide whether enquiry would be necessary or not”, the Bench noted. 

In this case, the Bench observed that the Executing Court, without stating any reason, scheduled the execution petition for an inquiry. The order should provide a rationale for such an inquiry, as typically, no inquiry is needed for the execution of a possession decree under Rule 35 of Order 21 of CPC, unless objected to by the judgment debtor.

Accordingly, the Court allowed the Petition and set aside the impugned judgment.

Cause Title: Veerendra v Shanthiraja Hegde (2023:KHC:44907)

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