Case Note & Summary
The petitioner, Mrs. Hemalatha Nayak @ Vijaya Laxmi Shenoy, filed a civil revision petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) before the High Court of Karnataka at Bengaluru, challenging the order dated 02.11.2016 passed by the II Addl. Civil Judge & JMFC, Mangaluru, D.K. in Ex. Case No. 132/2016. The respondent No.2, Sri Vijaya Kumar Taleppadi, had filed the execution petition against respondent No.1, Sri U. Prabhakar Nayak, for execution of a decree passed in O.S.No.330/2007. During the execution proceedings, the petitioner claimed a share in the decreed property and filed an application under Order XXI Rule 97 to 101 read with Section 151 CPC, seeking to resist the execution. The petitioner referred to a suit filed by her in O.S.No.339/2005 seeking partition. The executing court rejected the obstruction application without conducting a proper inquiry into her claim. The High Court, after hearing the parties, held that the executing court was required to conduct a summary inquiry into the claim of the petitioner as a third party and could not reject the application summarily. The High Court allowed the revision petition, set aside the impugned order, and remanded the matter to the executing court for fresh consideration, directing that the obstruction application be heard on merits after giving an opportunity to all parties.
Headnote
A) Civil Procedure Code - Execution Proceedings - Obstruction Application - Order XXI Rule 97 CPC - Right to be Heard - The petitioner, claiming a share in the decreed property, filed an application under Order XXI Rule 97 to 101 CPC to resist execution. The executing court rejected the application without proper inquiry. The High Court held that the executing court must conduct a summary inquiry into the claim of a third party and cannot reject the application summarily. (Paras 2-4) B) Civil Procedure Code - Revision - Section 115 CPC - Interference with Interlocutory Orders - The High Court, in exercise of revisional jurisdiction under Section 115 CPC, set aside the order of the executing court and remanded the matter for fresh consideration, directing the executing court to hear the obstruction application on merits after giving opportunity to all parties. (Para 4)
Issue of Consideration
Whether the executing court was justified in rejecting the obstruction application filed by the petitioner under Order XXI Rule 97 to 101 CPC without conducting a proper inquiry into her claim of share in the decreed property.
Final Decision
The High Court allowed the revision petition, set aside the order dated 02.11.2016 passed by the II Addl. Civil Judge & JMFC, Mangaluru, D.K. in Ex. Case No. 132/2016, and remanded the matter to the executing court for fresh consideration. The executing court was directed to hear the obstruction application on merits after giving an opportunity to all parties.
Law Points
- Order XXI Rule 97 CPC
- Order XXI Rule 101 CPC
- Section 115 CPC
- Execution proceedings
- Obstruction application
- Right to be heard
- Summary inquiry
