WP/2710/2023 of THE COMMISSIONER Vs THE ASSISTANT COMMISSIONER AND LAO SHIVAMOGGA on 31 August 2026

ORAL ORDER

W.P.No.2802/2023 is filed challenging the order dated 17.12.2022 passed on I.A.No.2 in Ex.No.33/2018; W.P.No.2710/2023 is filed challenging the order dated 17.12.2022 passed on I.A.No.2 in Ex.No.35/2018, both orders are passed by the Principal Senior Civil Judge and CJM., Shivamogga (for short, ‘the Executing Court’).

2. Heard Sri.B.S.Shrinivas, learned counsel for Sri.B.L.Sanjeev, learned counsel for the petitioner; Sri.Santoshraj Deshmukh, learned Additional Government Advocate for respondent Nos.1 and 3; Sri.M.B.Gagan Ganapathy, learned counsel for the respondent No.2 in respect of both the petitions and perused the material available on record.

3. The respondent No.2 in the respective petitions filed execution petition in Ex.No.33/2018 and Ex.No.35/2018 respectively, against the respondent No.1

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seeking to execute the judgment and award in LAC Nos.2/2011 and 4/2011 respectively. In the execution proceedings, the respondent No.1 filed an application under Order I Rule 10(2) read with Section 151 of the Code of Civil Procedure, 1908, (for short, 'the CPC') seeking to implead the petitioner herein as judgment debtor No.2. The Executing Court, under the impugned orders, allowed the said applications by recording the reasons that the petitioner herein is the beneficiary of the acquisition and hence, is a necessary and proper party to the said proceedings.

4. There is no dispute with regard to the proposition of law that the beneficiary of acquisition is required to be arrayed as a party in the reference proceedings filed by the claimant under Section 18 of the Land Acquisition Act, 1894. The said view gains support from the decision of the Hon'ble Supreme Court in the

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case of Neyvely Lignite Corporation Ltd. v. Special Tahsildar (Land Acquisition) Neyvely and others1.

5. It is to be noticed that the present applications for impleadment are filed by the respondent No.1 - Assistant Commissioner to implead the beneficiary as party to the execution proceedings and not in the reference proceedings.

Admittedly, there is no enforceable judgment and award/decree against the petitioner herein. Hence, without the petitioner being arrayed as a party in the reference proceedings, the petitioner cannot be straight way arrayed as a judgment debtor in the execution proceedings and seeks to execute the award of the reference Court.

6. The Hon'ble Supreme Court in the case of Bank of Baroda v. R.M.Patwa and Another2 observed that how the High Court has erred in converting the execution 1 (1995) 1 SCC 221 2 (1996) 2 SCC 468

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proceedings into case and counter case between the decree holder and stranger to the execution proceedings.

7. Considering the aforesaid enunciation of law laid down by the Hon'ble Supreme Court, I am of the view that the Executing Court has committed a grave error in allowing the applications for impleadment of the petitioner as party in the execution proceedings as judgment debtor No.2 since the petitioner herein was not a party in the reference proceedings. Hence, I proceed to pass the following:

ORDER

i. The writ petitions are allowed. ii. The impugned order dated 17.12.2022 passed on I.A.No.2 in Ex.No.33/2018; the impugned order dated 17.12.2022 passed on I.A.No.2 in Ex.No.35/2018, both the orders passed by the Principal Senior Civil Judge and CJM., Shivamogga, are set aside.

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Consequently, application in I.A.No.2 filed by respondent No.1/judgment debtor for impleadment stands rejected.

No order as to costs.

Sd/- (VIJAYKUMAR A. PATIL) JUDGE

BSR List No.: 1 Sl No.: 31