A.B. Surya vs C. Sathyanarayana

B.V. Nagarathna, J.—These writ petitions assail the orders dated 04/12/2013 (Annexure "S" and "T"), passed on I.A. No. XII, in F.D.P. No. 114/2008.

The relevant facts of the case are that the respondent herein had filed O.S. No. 6908/2000 and that suit ended in a compromise on 18/10/2001, a copy of the compromise petition filed under Order XXIII Rule 3 of the CPC (CPC) is produced as Annexure "C" to the writ petitions. Thereafter, the respondent herein filed F.D.P. No. 114/2008. Several orders have been passed in the said proceeding. Ultimately, the Additional Commissioner (South), B.B.M.P., Bangalore, was appointed as Commissioner to submit his Report with reference to the implementation of the compromise decree. He submitted his Report on 16/01/2010 (Annexure "H"). The respondent herein filed his objections to the said Report, while the petitioner herein did not file any objection to the Report. Thereafter, applications I.As. VII and VIII were filed by the petitioner herein seeking various relief''s before the trial Court. I.A.IX was filed by the obstructionist under Order XXI Rule 97 r/w Section 151 of CPC. Those applications were considered and by order dated 06/09/2013, the trial Court while dismissing the said applications directed reissuance of commission warrant to the Additional Commissioner (Revenue), B.B.M.P., Koramangala Ward, Mayo Hall, Bangalore, to identify and demarcate the share of the respondent herein as per the compromise decree dated 18/01/2001 and to submit his Report along with sketch to the Court on or before 26/10/2013 (Annexure "P"). At this stage itself, it can be stated that the Court Commissioner could not execute the commission warrant on or before 26/10/2013. In fact, the Commissioner visited the premises subsequently on 12/11/2013. It is stated that there were obstruction on the part of the petitioner herein in execution of the commission warrant and in that regard, the Report was submitted. In these circumstances, respondent herein filed I.A. No. 12, seeking assistance of the jurisdictional police for breaking open the locks of the premises and for taking all necessary steps for the due execution of the commission warrant. Objections were filed by the petitioner herein to the said application. By the impugned orders dated 04/12/2013, the applications filed by the respondent herein was allowed permitting the assistance of the jurisdictional police for the purpose of executing the commission warrant in case there was necessity. Further directions were also issued with reference to the execution of warrant. Those orders at Annexure "S" and "T", are assailed in these writ petitions.

I have heard the learned counsel for petitioner and learned counsel for respondent and perused the material on record.

The scope of this writ petition is in a narrow compass inasmuch as the appointment of the second Commissioner to implement the compromise decree has not been assailed. The crux of the matter is with reference to the order dated 06/09/2013, wherein the second Commissioner i.e., the Joint Commissioner (Revenue), was directed to execute the commission warrant on or before 26/10/2013. On a perusal of the Report of the Commissioner dated 12/11/2013 (Annexure "P"), it becomes apparent that the commission warrant was not executed by 26/10/2013. No material is also brought to my notice to state that there was any extension of time by the trial Court for execution of the commission warrant. After the expiry of the date fixed by the Court for execution of the commission warrant, the Court Commissioner visited the premises on 12/11/2013. To this, there was objection on the part of the petitioner and the commission warrant could not be executed. The objection raised by the petitioner to the second Commissioner visiting the premises on 12/11/2013 was justified inasmuch as the Court Commissioner had visited the premises after the expiry of the date fixed by the Court for filing of the Report after due execution of the commission warrant. Because there was obstruction and objection raised by the petitioner on 12/11/2013, the respondent filed an application seeking assistance of the jurisdictional police for the execution of the commission warrant. That application was allowed on 04/12/2013. The trial Court while allowing that application has lost sight of the fact that the petitioner herein was justified in objecting to the Commissioner executing their commission warrant after expiry of the date fixed by the trial Court for execution of commission warrant. In the absence of there being any fresh date given by the trial Court for the execution of the commission warrant, the Court Commissioner had no jurisdiction to visit the premises in question on a subsequent date. Therefore, the objection raised by the petitioner on 12/11/2013 was justified. If that was so, the trial Court ought not to have allowed the application filed by the respondent herein, seeking assistance of the jurisdictional police for breaking open the locks on the premises in case of necessity. Therefore, the trial Court was not right in allowing the application filed by the Respondent herein. The impugned order is liable to be quashed.

After allowing the application, the trial Court has directed the Commissioner to submit a fresh Report. The Commissioner was directed to visit the spot on 15/12/2013 for the purpose of execution of the warrant and the petitioner and respondent were directed to be present on the spot on 14/12/2013 at 11.00 a.m. without insisting on a separate notice for that purpose. In case the warrant could not be executed on that date, then further seven days time was given for issuance of notice. The petitioner and respondents were directed not to cause any further obstruction to the Commissioner and any person having any objection to the appointment of Court Commissioner was permitted to file the objections to the Court. The Court Commissioner was directed to file the Report before 04/01/2014. These directions are assailed by the petitioner by contending that objections to the Court Commissioner can always be raised at the time of execution of the commission warrant by any party and the trial Court could not have restrained the parties from raising their objections. It is also contended that without any direction for issuance of a notice, a date was fixed by the trial Court for the execution of the commission warrant. As far as these directions are concerned, fixing of date for the execution of the commission warrant is 04/01/2014, which date has already lapsed. The date for visiting the premises of the spot was 14/12/2013, which did not happen on account of the interim stay granted by this Court. In the circumstances, the conditions appended to the order dated 04/12/2013 are modified. The Court Commissioner is directed to visit the spot on 20/02/2014 at 11.00 a.m., for the purpose of execution of the warrant. The parties are directed to be present at the spot on 20/02/2014 at 11.00 a.m. and no separate notice need be issued to them for the execution of the warrant. If on that day the Court Commissioner is unable to execute the warrant for any reason, he shall execute the warrant on some other day after giving ten days prior notice for visiting the premises to the parties by Registered Post Acknowledgement Due. If any person is aggrieved by the execution of the warrant or any Report of the Court Commissioner, he/she shall submit objections to the trial Court. The Court Commissioner is directed to submit his Report to the trial Court.

In the result, the writ petitions are disposed of in the following terms:-

1) The impugned orders dated 04/12/2013 (Annexure "S" and "T") are quashed.

2) The second Commissioner is directed to visit the spot on 20/02/2014 at 11.00 a.m., for the purpose of execution of the warrant. The parties are directed to be present at the spot on 20/02/2014 at 11.00 a.m. and no separate notice need be issued to them for the execution of the warrant. If on that day, the Court Commissioner is unable to execute the warrant for any reason, he shall execute the warrant on some other day, after giving ten days prior notice for visiting the premises to the parties by Registered Post Acknowledgement Due. If any person is aggrieved by the execution of the warrant or any report of the Court Commissioner, he/she shall submit their objections to the trial Court. The Court Commissioner is directed to submit his Report to the trial Court on or before 01/03/2014 in case the commission warrant is executed on 20/2/2014 or within ten days after the execution of commission warrant.

3) It is made clear that the scope of this writ petition is restricted to the application filed by the respondent namely, I.A. No. XII in F.D.P. No. 114/2008.

4) All other contentions on both sides, which are de hors the order passed on I.A. No. XII, are left open to be urged in appropriate proceedings.