- 1 - HC-KAR CNR: KAHC010362322021 NC: 2026:KHC:36490 W.P. No.17959/2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.17959/2021 (GM-CPC) BETWEEN: SMT. KAVITHA .S W/O SHARAVANAN .S AGED ABOUT 44 YEARS R/O MEENGARARA STREET BH ROAD BHADRAVATHI SHIMOGA DISRICT. …PETITIONER (BY SRI. CHANDRAKANTH R. PATEL, ADV.,) AND: 1. LAXMINARAYANA S/O SAROJAMMA AND BALAKRISHNAN AGE MAJOR. 2. PARAMESHWARA S/O SAROJAMMA AND BALAKRISHNAN AGE MAJOR. 3. UPENDRA BABU SARASVATHI S/O SAROJAMMA AND BALAKRISHNAN AGE MAJOR. 4. VASANTHALAKSHMI D/O SAROJAMMA AND BALAKRISHNAN AGE MAJOR. Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR CNR: KAHC010362322021 NC: 2026:KHC:36490 W.P. No.17959/2021 5. SARASWATHI D/O SAROJAMMA AND BALAKRISHNAN AGE MAJOR. 6. KATHIYANI D/O SAROJAMMA AND BALAKRISHNAN AGE MAJOR. 7. GAYATHRIDEVI D/O SAROJAMMA AND BALAKRISHNAN AGE MAJOR. 8. ARUNADEVI D/O SAROJAMMA AND BALAKRISHNAN AGE MAJOR. RESPONDENT NOS.1 TO 8 ARE RESIDING AT 9TH CROSS B H ROAD OLD TOWN BHADRAVATHI. 9. SRI MADHU FISHERMAN MEENUGARARA BEED LOWER HUTHA BH ROAD, BHADRAVATHI. [AS PER THE COURT ORDER DATED 07.07.2026 THE R1, R5 & R6 DIED LEAVING BEHIND THEIR OTHER SIBLINGS THAT IS R2 TO R4 & R7 & R8 WHO ARE ALREADY ON RECORD] …RESPONDENTS (BY SRI. DILIP KUMAR, ADV., FOR R3 [ABSENT] R2, R4, R7, R8, R9 SERVED UNREPRESENTED R2 TO R4, R7 & R8 ARE LR’S OF DECEASED R1, R5 & R6 V/O/DTD:7.7.2026) - 3 - HC-KAR CNR: KAHC010362322021 NC: 2026:KHC:36490 W.P. No.17959/2021 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD.28.5.2021 IN EX NO.293/2011 BEFORE THE 2ND ADDITIONAL CIVIL JUDGE AND JMFC AT BHADRAVATHI VIDE ANNEXURE-C. QUASH THE IMPUGNED ORDER DTD.16.8.2021 IN EX NO.293/2011 BEFORE THE 2ND ADDITIONAL CIVIL JUDGE AND JMFC AT BHADRAVATHI VIDE ANNEXURE-D & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging the order dated 28.05.2021 and 16.08.2021 passed in Ex.No.293/2011 by the II Additional Civil Judge and JMFC, Bhadravathi (for short, ‘the Executing Court’). 2. Sri. Chandrakant R.Patil, learned counsel appearing for the petitioner submits that the respondent Nos.1 to 8 have filed Ex.No.293/2011 seeking to execute the decree and in the said proceedings, the petitioner filed an application opposing the execution proceedings on the ground that the decree obtained by respondent Nos.1 to 8 - 4 - HC-KAR CNR: KAHC010362322021 NC: 2026:KHC:36490 W.P. No.17959/2021 against the respondent No.9 is relating to the property where the petitioner is in possession from ages and the petitioner is paying electricity charges. However, the Executing Court, without any enquiry, proceeded to reject the petitioner/objector's application on the ground that the document placed prima facie do not support the case of the petitioner/objector. It is submitted that the Executing Court ought to have adjudicated the objection by permitting the parties to adduce the evidence, and without any enquiry, summary rejection of the objection of the objector is impermissible. In support of his contention, he placed reliance on the decision of the Hon'ble Supreme Court in the case of Shreenath and another v. Rajesh and others1. Hence, he seeks to allow the petition by directing the Executing Court to enquire with regard to the objection and thereafter, take decision on merits. 3. There is no representation on behalf of the respondents. 1 AIR 1998 SC 1827 - 5 - HC-KAR CNR: KAHC010362322021 NC: 2026:KHC:36490 W.P. No.17959/2021 4. I have heard the arguments of the learned counsel for the petitioner and meticulously perused the material available on record. 5. The respondent Nos.1 to 8 have filed the suit in O.S.No.151/2000 against respondent No.9 for the relief of declaration and possession of the suit schedule property. The said suit came to be decreed ex parte on 07.09.2000. The respondent Nos.1 to 8 have filed execution petition in Ex.No.293/2011 seeking to execute the judgment and decree passed in O.S.No.151/2000 and seeking delivery of the suit schedule property. In the said proceedings, the petitioner had filed an application under Order XXI Rule 97, 99 & 101 read with Section 151 of CPC objecting the execution proceedings. The said application was opposed by the respondent Nos.1 to 8/Decree Holders, the Executing Court under the impugned order rejected the said application on the ground that in support of her - 6 - HC-KAR CNR: KAHC010362322021 NC: 2026:KHC:36490 W.P. No.17959/2021 contention, the objector has failed to make out a prima facie case to consider the objections. 6. The perusal of the affidavit accompanying the application of the petitioner/objector indicates that the objector is making specific assertion in the execution proceedings that the petitioner/objector is residing in the suit schedule premises for more than 25 years and she has obtained electricity connection way back in the year 1984 and she is in settled possession. 7. It is required to be noticed that when petitioner/objector has made a specific assertion that she is in possession of the suit schedule premises and claims her possession as adverse possession against the interest of owner, the Executing Court ought to have considered the said objection by conducting enquiry by permitting the parties to adduce evidence. The summary rejection of the objection of the petitioner/objector is impermissible and runs contrary to Order XXI Rule 97 of the CPC. - 7 - HC-KAR CNR: KAHC010362322021 NC: 2026:KHC:36490 W.P. No.17959/2021 8. It is also required to be noticed that the respondent Nos.1 to 8/decree holders are seeking specific relief of execution of the decree of delivery of possession and the petitioner/objector is specifically making assertion that she is in physical possession of the suit schedule property and admittedly, the decree in question is without making the petitioner/objector as a party. In my considered view, the Executing Court has committed a grave error in coming to a conclusion contrary to the settled position of law and rejecting the application. The Hon'ble Supreme Court in the aforesaid decision at para Nos.10, 14 and 15 held as under: “10. Under sub-clause (1) Order 21 Rule 35, the executing court delivers actual physical possession of the disputed property to the decree-holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are by removing any person bound by the decree. Order 21 Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, - 8 - HC-KAR CNR: KAHC010362322021 NC: 2026:KHC:36490 W.P. No.17959/2021 the substance of the decree in regard to the property. In other words, the decree-holder gets the symbolic possession. Order 21 Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by “any person”. This may be either by the person bound by the decree, claiming title through the judgment-debtor or claiming independent right of his own including a tenant not party to the suit or even a stranger. A decree-holder, in such a case, may make an application to the executing court complaining such resistance for delivery of possession of the property. Sub-clause (2) after 1976 substitution empowers the executing courts when such claim is made to proceed to adjudicate upon the applicant's claim in accordance with the provisions contained hereinafter. This refers to Order 21 Rule 101 (as amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21 Rule 97 or Rule 99 shall be determined by the court and not by a separate suit. By the amendment, one has not to go for a fresh suit but all matter pertaining to that property even if obstruction by a stranger is adjudicated and finally given even in the executing proceedings. We find the expression “any person” under sub-clause (1) is used deliberately for widening the scope of power so that the executing court could adjudicate the claim made in any such application under Order 21 Rule 97. Thus by the use of the words “any person” it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger. 14. We find that both either under the old law or the present law, the right of a tenant or any person claiming right on his own of the property in case he - 9 - HC-KAR CNR: KAHC010362322021 NC: 2026:KHC:36490 W.P. No.17959/2021 resists, his objection under Order 21 Rule 97 has to be decided by the executing court itself. 15. Rule 100 of the old law, as referred in the aforesaid Full Bench decision of the Madhya Pradesh High Court is a situation different from what is covered by Rule 97. Under Rule 100 (old law) and Order 99, the new law covers cases where persons other than the judgment-debtor is dispossessed of immovable property by the decree-holder, of course, such cases are also covered to be decided by the executing court. But this will not defeat the right of such a person to get his objection decided under Rule 97 which is a stage prior to his dispossession or a case where he is in possession. In other words, when such person is in possession the adjudication to be under Rule 97 and in case dispossessed adjudication to be under Rule 100 (old law) and Rule 99 under the new law. Thus a person holding possession of an immovable property on his own right can object in the execution proceeding under Order 21 Rule 97. One has not to wait for his dispossession to enable him to participate in the execution proceedings. This shows that such a person can object and get adjudication when he is sought to be dispossessed by the decree-holder. For all the aforesaid reasons, we do not find the Full Bench in Smt.Usha Jain [AIR 1980 MP 146 : 1980 MPLJ 623] correctly decided the law.” 9. In view of the enunciation of law laid down by the Hon'ble Supreme Court referred supra, I am of the view that the Executing Court is required to adjudicate on the objection filed by the petitioner/objector and thereafter take a decision and till such decision is taken, - 10 - HC-KAR CNR: KAHC010362322021 NC: 2026:KHC:36490 W.P. No.17959/2021 the petitioner shall not be dispossessed. Hence, I proceed to pass the following: ORDER i. The writ petition is allowed. ii. The impugned order dated 28.05.2021 and 16.08.2021 passed in Ex.No.293/2011 by the II Additional Civil Judge and JMFC, Bhadravathi, is set aside. iii. The objection filed by the petitioner/objector under Order XXI Rule 97, 99 & 101 of CPC is restored on the file of the Executing Court. iv. The Executing Court shall conduct the enquiry and take a decision on such objection in accordance with law and till such a decision is taken on the petitioner/objector's application, the further steps of the Executing Court for issuance of delivery warrant or police assistance would not arise and the same are accordingly set aside. v. No orders as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR/List No.: 1 Sl No.: 30