- 1 - HC-KAR NC: 2025:KHC:41906 WP No. 12598 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 12598 OF 2017 (GM-CPC) BETWEEN: 1. SRI P SATHISH PAI S/O LATE P.NARASIMHAPLAI AGED ABOUT 62 YEARS OFFICE AT NO.10/1 LAKSHMINARAYANA COMPLEX PALACE ROAD, BANGALORE - 560 052. 2. SRI M.S. MAHADEVAIH S/O SHIVANNA AGED ABOUT 60 YEARS R/AT NO.59, PALACE ROAD BENGALURU - 560 052. …PETITIONERS (BY SRI H.R. ANANTHAKRISHNAMURTHY, ADV.) AND: 1. T.V. LAKSHMIKANTH S/O LATE G.R. VENKATESH HINDU, MAJOR PRESENTLY RESIDING AT NO.160 7TH MAIN, 3RD STAGE, 4TH BLOCK BASAVESHWARANAGAR BANGALORE - 560 079. 2. SRI MOHAMMED ISMAIL S/O LATE SRI NANNESAHEB MUSLIM, MAJOR. 3. SMT. JAINA BEE MUSLIM, MAJOR. Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:41906 WP No. 12598 of 2017 4. SRI Y.M. SHAFIULLA MUSLIM, MAJOR. 5. SRI MOHAMMED RAHMATHULLA MUSLIM, MAJOR. 6. SMT. SHEDDA BEGUM MUSLIM, MAJOR. 7. SRI MOHAMMED MIZRA MUSLIM MUSLIM, MAJOR. 8. SRI Y.T. MOHAMMEDIYAZ MUSLIM, MAJOR. 9. SRI FAIZ AHMED MUSLIM, MAJOR. RESOPONDENT Nos.2 TO 9 ARE RESIDING AT NO.15, MASJID ROAD, HEBBAL BANGALORE - 560 024 BANGALORE NORTH TALUK. 10. SRI D. RAMA RAO S/O G. DURGESHAIAH HINDU, MAJOR R/AT NO.958, 7TH MAIN ROAD 2ND CROSS, WEST OF CHORD ROAD, RAJAJINAGAR BANGALORE - 560010. 11. M/S BANGALORE CITY CHICKPET HOUSE BUILDING CO-OPERATIVE SOCIETY, HAVING ITS OFFICE AT K.V.TEMPLE STREET BANGALORE - 560 010. 12. M/S BANGALORE CITY CHICKPET HOUSE BUILDING CO-OPERATIVE SOCIETY HAVING ITS OFFICE AT K.V.TEMPLE STREET BANGALORE - 560 053 REPRESENTED BY ITS PRESIDENT SRI.L.S.VENKATESH. - 3 - HC-KAR NC: 2025:KHC:41906 WP No. 12598 of 2017 13. M/S VINIVINC PROPERTIES REGISTERED PARTNERSHIPFIRM REPRESENTED BY ITS PARTNER G.LOKESH, NO.53-58, 4TH FLOOR 14. SRI.CHAHRAVATHI COMPLEX SAJJANRAO CIRCLE, V.V.PURAM BANGALORE - 560 004. 14. STATE OF KARNATAKA REP BY REVENUE SECRETARY M.S. BULDING, BANGALORE - 560 001. …RESPONDENTS (BY SRI C.T. PARAMESHWARAPPA, ADV., FOR R-11 & R-12- ABSENT; V/O DT: 23.01.2024 NOTICE TO R-10; V/O DT: 16.04.2024, NOTICE TO R-1 TO R-9, R-13 ARE H/S; SMT. A. MARIA SHARMITA, ADV., FOR SRI VEERESH R. BUDIHAL, ADV., FOR R-14) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 8.2.2016 PASSED IN REJECTING THE APPLICATION FOR AMENDMENT UNDER THE ORIGINAL OF ANNEX-G PASSE DIN EX.NO.25176/2007 ON THE FILE OF THE CITY CIVIL JUDGE.GRANT AN INTERIM ORDER TO STAY ALL FURTHER PROCEEDINGS IN O.S.17297/2004 PENDING BEFORE THE CITY CIVIL JUDGE AT BENGALURU.POST THIS W.P. FOR PRELIMINARY HEARING BEFORE SINGLE JUDGE.DT01.04.2017 THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. This petition under Article 227 of the Constitution of India is filed by the decree holders in O.S.No.17297/2004 with a prayer to quash the order dated 08.02.2016 passed on the application filed by the petitioners under Order VI Rule 17 of - 4 - HC-KAR NC: 2025:KHC:41906 WP No. 12598 of 2017 CPC with a prayer to amend the petition and the schedule in Execution No.25176/2007 pending before the Court of XXVIII Addl. City Civil and Sessions Judge, Benglauru. 2. Heard the learned Counsel for the petitioners and the learned Counsel appearing for respondent no.14. Respondents Nos.1 to 13, who are served in the matter have remained unrepresented before this Court. 3. Petitioners herein had filed O.S.No.17297/2004 before the jurisdictional Civil Court for a judgment and decree of specific performance and the said suit was decreed as against respondent nos.1 to 13 herein on 16.04.2007. The said judgment and decree has attained finality. Execution Case No.25176/2007 was filed by the decree-holders before the Trial Court to execute the decree passed in O.S.No.17297/2004 and in the said execution petition, application under Order VI Rule 17 read with Sections 151 & 153 of CPC was filed with a prayer to amend the execution petition and Schedule 'A' & 'B' of the execution petition. The said application was rejected by the Executing Court vide the order impugned and being aggrieved by the same, the decree-holders are before this Court. - 5 - HC-KAR NC: 2025:KHC:41906 WP No. 12598 of 2017 4. Learned Counsel appearing for the petitioners submits that after the decree was passed in O.S.No.17297/2004, in suit schedule Item no.1 property - bearing Sy. Nos.61/2 & 61/3, 58 sites were formed and the aforesaid properties were attached by the Competent Authority under the provisions of the Karnataka Protection of Interest of Depositors in Financial Establishments Act, 2004 (for short, 'the Act'). Out of the 58 sites, except Site nos.1 to 9, all the other sites which were attached were brought for sale through public auction. Site nos.1 to 9 which were formed in Sy. Nos.61/2 & 61/3 though attached under the provisions of the Act, were not brought for sale. So far as site nos.1A, 2A & 3A formed in Sy. Nos.61/2 & 61/3 of Yelahanka village, Bengaluru North Taluk, are concerned, they were not attached under the provisions of the Act, and they are very much available, and it is under these circumstances, an application seeking amendment was filed. The Trial Court without appreciating the aforesaid aspects of the matter, has dismissed the application on the ground that the Executing Court cannot go beyond the decree. - 6 - HC-KAR NC: 2025:KHC:41906 WP No. 12598 of 2017 5. Per contra, learned Counsel appearing for respondent no.14 does not dispute the submissions made by the learned Counsel for the petitioners. She fairly submits that Site nos.1 to 9 formed in Sy. Nos.61/2 & 61/3 were not brought for sale and the site numbers are now changed since a modified layout has been formed. 6. It is trite that in normal circumstances, the Executing Court cannot go beyond the decree which is sought to be executed. In the case on hand, it is not in dispute that there is a decree for specific performance in favour of the petitioners herein in respect of Sy. No.61/2 measuring 1 acre 33 guntas and Sy. No.61/3 measuring 28 guntas of Yelahanka village, Bengaluru North Taluk. 7. The material on record would go to show that in the aforesaid two properties bearing Sy. Nos.61/2 & 61/3, sites were formed by the judgment-debtors in O.S.No.17297/2004, and under the provisions of the Act, the sites which were formed in property bearing Sy. Nos.61/2 & 61/3 of Yelahanka village, were attached. - 7 - HC-KAR NC: 2025:KHC:41906 WP No. 12598 of 2017 8. According to the learned Counsel for the petitioners, out of 58 sites formed in the aforesaid properties, except Site nos.1 to 9 all the other sites have been brought to sale by the competent authority. This submission is not seriously disputed by the learned Counsel for respondent no.14. She has stated that the site numbers have been changed since there has been a modified layout formed in the aforesaid properties bearing Sy. Nos.61/2 & 61/3. It is also not in dispute that sites bearing nos.1A, 2A & 3A formed in Sy. Nos.61/2 & 61/3 were not attached under the provisions of the Act. 9. The Hon'ble Supreme Court in the case of PERIYAMMAL (DEAD) THROUGH LRS. & OTHERS VS V.RAJAMANI & ANOTHER - 2025 INSC 329, has observed that on technical grounds a decree-holder cannot be denied the fruits of the decree which has been granted to him by the jurisdictional court after a full-fledged trial in the case. In the said case, in paragraph nos.62 & 63, the Hon'ble Supreme Court has observed as under: "62. A harmonious reading of Section 47 with Order XXI Rule 101 implies that questions relating to right, title or interest in a decretal property must be - 8 - HC-KAR NC: 2025:KHC:41906 WP No. 12598 of 2017 related to the execution, discharge or satisfaction of the decree. The import of such a reading of the provisions is that only matters arising subsequent to the passing of the decree can be determined by an executing court under Section 47 and Order XXI Rule 101. Such reasoning is reinforced by the decisions of this Court in C.F. Angadi v. Y.S. Hirannayya reported in (1972) 1 SCC 191 and Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman reported in (1970) 1 SCC 670, wherein it has been held that while determining a question under Section 47, an executing court cannot go behind the decree and question the correctness of the same. 63. What flows from the position of law, as afore stated, is that the issues that ought to have been raised by the parties during the adjudication of the original suit cannot be determined by the executing court as such adjudication may undermine the decree itself. This Court in Rahul S. Shah v. Jinendra Kumar Gandhi reported in (2021) 6 SCC 418 has held that the benefit of Section 47 cannot be availed to conduct a retrial causing failure of realisation of fruits of the decree. The relevant portion of the judgment is reproduced below: “24. In respect of execution of a decree, Section 47 CPC contemplates adjudication of limited nature of issues relating to execution i.e. discharge or satisfaction of the decree and is aligned with the consequential provisions of Order 21 CPC. Section 47 is intended to prevent - 9 - HC-KAR NC: 2025:KHC:41906 WP No. 12598 of 2017 multiplicity of suits. It simply lays down the procedure and the form whereby the court reaches a decision. For the applicability of the section, two essential requisites have to be kept in mind. Firstly, the question must be the one arising between the parties and secondly, the dispute relates to the execution, discharge or satisfaction of the decree. Thus, the objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible. 25. These provisions contemplate that for execution of decrees, executing court must not go beyond the decree. However, there is steady rise of proceedings akin to a retrial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a decree in their favour. Experience has shown that various objections are filed before the executing court and the decree- holder is deprived of the fruits of the litigation and the judgment-debtor, in abuse of process of law, is allowed to benefit from the subject-matter which he is otherwise not entitled to."" - 10 - HC-KAR NC: 2025:KHC:41906 WP No. 12598 of 2017 10. In the case on hand, the petitioners have been granted a decree for specific relief in a suit which was filed in the year 2004 and they are before the Executing Court ever since the year 2007. In normal circumstances, in execution proceedings, the parties will not be asked to lead evidence. But in a given case, if necessary, the parties can be asked to lead evidence. 11. In the case of RAHUL S. SHAH VS JINENDRA KUMAR GANDHI - (2021)6 SCC 418, the Hon'ble Supreme Court has observed as under: "42.9 The court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits." 12. The Executing Court without appreciating these aspects of the matter, has rejected the application filed by the petitioner under Order VI Rule 17 CPC only on the ground that the Executing Court cannot go beyond the decree. In my considered opinion, the Executing Court has failed to appreciate the contentions urged on behalf of the petitioners. The suit - 11 - HC-KAR NC: 2025:KHC:41906 WP No. 12598 of 2017 schedule properties have undergone a change after the decree, and therefore, the Executing Court ought to have permitted the petitioners to amend the petition schedule given to the execution petition. If there is a dispute with regard to the identity of the property or with regard to any other issue which cannot be decided without recording evidence, the parties can always be directed to lead evidence in support of their contentions and prove their case. Therefore, I am of the opinion that the impugned order cannot be sustained. Accordingly, the following order: 13. The writ petition is allowed. The impugned order dated 08.02.2016 passed by the XXVIII Addl. City Civil & Sessions Judge, Bengaluru, in Execution Case No.25176/2007 on the application filed under Order VI Rule 17 CPC, is set aside. Consequently, the prayer made in the application is granted. Sd/- (S VISHWAJITH SHETTY) JUDGE KK