Sri. Raja vs Smt. C. N. Ambikamma
2021 Latest Caselaw 5284 Kant

                            1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF DECEMBER, 2021

                         BEFORE

      THE HON'BLE Mr. JUSTICE B.M. SHYAM PRASAD

          WRIT PETITION No. 13973/2019 (GM-CPC)

BETWEEN :
--------------

1.     Sri. Raja
       Son of Sri. Doddaiah
       Aged about 38 years
       Residing at Navilahalli
       Kasaba Hobli
       Tumkur taluk
       Tumkur District - 572 101.

2.     Sri. Kadaiah
       S/o. Sri. Thoreranaiah
       Aged about 55 years
       Residing at Vaddarahalli
       Kasaba Hobli
       Tumkur taluk
       Tumkur District - 572 101.    ... PETITIONERS

(By Sri. P.M. Siddamallappa, Adv.)

AND :
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Smt. C.N. Ambikamma
Wife of Sri. R. Puttarangaiah
Aged about 64 years
                              2




Son of Sri. Doddaiah
Aged about 38 years
Residing at Navilahalli
And also at 33rd Cross
S.I.T. Extension
Tumkur District - 572 101.             ... RESPONDENT

(By Sri. M. Rajendra Prasad, Sr. Counsel, for
Sri. N. Manjunath, Adv.)

                             ---

      This Writ Petition is filed under Article 227 of the
Constitution of India with a prayer to       set aside the
impugned order dated 10.01.2019 passed by the Principal
Civil Judge and JMFC-I, Tumkur in Ex. No. 55/2012
and etc.

     This Writ Petition coming on for Preliminary Hearing
B Group this day, the Court passed the following;

                        ORDER

The petitioners, who are arraigned as the fourth and

fifth judgment debtors in execution No. 55/2012 on the file

of Principal Civil Judge and JMFC-I, Tumkur, (for short,

'the executing Court'), have impugned the executing Court's

order dated 10.01.2019. The executing Court by this

impugned order has directed detention of these petitioners

and the legal heirs of another deceased judgment debtor in

civil prison for a period of one year for disobedience of the

decree for permanent injunction in O.S. No. 432/1996.

2. On 15.11.2021, it was pointed out to this Court

that the second petitioner has died during the pendency of

the petition and therefore, the petition as by this petitioner

would not survive. This Court has accepted this

submission, and the petition by the second petitioner is

disposed as having abated. As such the merits of the

impugned order will have to be examined qua the first

petitioner, who is hereafter referred to as 'the petitioner'.

3. The undisputed facts are that the respondent -

the decree holder has filed the suit in O.S. No. 432/1996

for permanent injunction against the petitioner and four

others for restraining them from interfering with her

possession of two parcels of lands. These two parcels are

described in the decree as land measuring 4 acres 6 guntas

in survey No. 101 and land measuring 2 acres 7guntas of

Sathyamangala village, Kasaba hobli, Tumkur taluk. This

suit in O.S. No. 432/1996 is decreed on 11.12.2004

restraining the defendants, including the petitioner, from

interfering with her possession of the subject property. The

deceased petitioner, Sri. Kadaiah, has impugned the

aforesaid judgment and decree dated 11.12.2004 in R.A.

No. 127/2013, and this appeal is dismissed during the

pendency of this petition. However, the petitioner has not

impugned the aforesaid judgment dated 11.12.2004.

4. The respondent has commenced enforcement

proceedings in execution case No. 55/2012 inter alia for

arrest of the defendants/judgment-debtors, including the

petitioner, and their detention in civil prison as also certain

other reliefs. The respondent's affidavit in support of the

execution petition is taken as her chief-examination and

she is cross-examined. The petitioner has neither filed

objections nor led evidence. But the deceased second

petitioner, Sri. Kadaiah, has examined himself as D.W. 1.

It is his case that he is in possession of land measuring 2

acres 7 guntas in survey No. 104 of of Sathyamangala

village, Kasaba hobli, Tumkur taluk (one of the suit

schedule properties) from the time of his ancestors. He has

also stated that he and his family members are in

possession of the aforesaid land and in fact, they have

constructed residential premises and raised mulberry

plants, coconut and areca nut trees there.

5. The executing Court, considering the rival

submissions in the light of the evidence placed on record by

the respondent and the deceased second petitioner - Sri.

Kadaiah, has opined that the respondent has successfully

proved willful disobedience by the judgment debtors

including the petitioners and therefore, there must be an

order for their detention in civil prison. The executing Court

is persuaded to opine that the respondent has successfully

proved willful disobedience because of certain lacuna in the

evidence placed on record by the deceased petitioner. But

the crucial question in this writ petition at this stage, when

the second petitioner, Sri. Kadaiah has died and the

petition as against him stands abated, is whether there is

any material to show that the respondent has established

disobedience by the petitioner.

6. Sri. P.M. Siddamallappa, the learned counsel for

the petitioner, submits that the respondent, without

mentioning the specific acts by each of the decree holders,

has generally alleged that there is disobedience and she

has not placed any material specific to the petitioner to

demonstrate that he had any interest in the subject

properties or that he has interfered with her possession of

these properties disobeying the decree dated 11.12.2014.

But, Sri. M.S. Rajendra Prasad, the learned Senior counsel

for the respondent, refutes these submissions relying upon

the respondent's statement in her affidavit.

7. Sri. M.S. Rajendra Prasad contends that in the

light of the respondent's statement in the affidavit as

regards the repeated attempts to interfere with the

respondent's cultivation of the subject properties, this

Court must opine that the executing Court has rightly

concluded that there is disobedience even by the petitioner.

However, the sufficiency of the material as against the

petitioner must necessarily be examined in the light of the

respondent's general statement against all the judgment

debtors in her evidence.

8. It is seen that the respondent mentions a

certain Lokesh and Nagaraj as persons who interfered with

her possession of the subject lands but does not say

anything about the petitioner. The respondent, as regards

the subject land in survey No. 104 of Sathyamangala

village, Kasaba hobli, Tumkur taluk, admits that the

revenue records are in favour of a certain Subrahmanya

and Sridhar suggesting interference by them without any

allegation against the petitioner.

9. Further, the indefatigable fact is that the

controversy in the execution proceedings is only between

the respondent and the deceased second petitioner, who

asserted that he and his family members were in

possession of the land in survey No. 104 of Sathyamangala

village, Kasaba hobli, Tumkur taluk (the second of the

subject properties). The respondent's case against the

petitioner, when examined in the light of these

circumstances, is rendered very tenuous.

10. The executing Court should have considered

these circumstances to conclude whether a specific case of

disobedience is made as against each of the judgment

debtors. The executing Court has failed in this regard and

this Court is of the considered opinion that this vitiates the

impugned order insofar as the petitioner. As such the

following;

ORDER

The petition is allowed in part, and the impugned

order dated 10.01.2019 in Ex. No. 55/2012 insofar as it

relates to the petitioner stands invalidated. It is needless to

observe that it would be open to the respondent to work out

her remedy as against others.

SD/-

JUDGE.

LRS.