A.D. Somegowda vs A.V. Subbegowda
2021 Latest Caselaw 5353 Kant

                            1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 3RD DAY OF DECEMBER, 2021

                        BEFORE

         THE HON'BLE MR. JUSTICE R. NATARAJ

     CIVIL REVISION PETITION NO.258 OF 2020 (IO)

BETWEEN:

A.D. SOMEGOWDA
S/O. LATE DYAVEGOWDA,
AGED ABOUT 70 YEARS,
AGRICULTURIST,
R/A. HALE ALDUR VILLAGE,
CHIKMAGALUR TALUK
AND DISTRICT-577111.
                                            ...PETITIONER
(BY SRI. PRASANNA B.R., ADVOCATE)

AND:

1.     A.V. SUBBEGOWDA
       S/O. LATE VEEREGOWDA,
       AGED ABOUT 68 YEARS,
       AGRICULTURIST,

2.     A.V. DEVEGOWDA
       S/O LATE VEEREGOWDA,
       AGED ABOUT 93 YEARS,
       AGRICULTURIST,

       BOTH ARE R/AT HALE ALDUR VILLAGE,
       CHICKMAGALUR TALUK
       AND DISTRICT 577111.
                                           ...RESPONDENTS
(BY SRI. M.S.RAGHAVENDRA PRASAD, ADVOCATE)
                              2


      THIS PETITION IS FILED UNDER SECTION 115 OF CPC
AGAINST THE ORDER DATED 17.12.2013 PASSED ON IA No.II
AND III IN EX.No.4/2008 ON THE FILE OF THE I ADDITIONAL
CIVIL JUDGE AND JMFC, CHIKMAGALUR DISMISSING THE IA
No.II AND III FILED UNDER SECTION 151 OF CPC FOR
DIRECTION

     THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT PASSED THE FOLLOWING:

                          ORDER

This revision petition is filed by the Decree Holder in

Ex.No.4/2008 pending consideration before the I Additional

Civil Judge (Jr.Dvn.,) & JMFC, Chikkamagaluru (henceforth

referred to as 'Executing Court' for short) rejecting

I.A.Nos.2 and 3 filed under Section 151 of the Code of Civil

Procedure, 1908 (hereinafter referred to as 'CPC' for short)

to appoint a Revenue Surveyor as a Commissioner to

identify the property, which is the subject matter of the

decree in O.S.No.276/1987.

2. The suit in O.S.No.276/1987 was filed for

declaration, recovery of possession of certain portion of

lands measuring 4 guntas each in Sy. No.343/14A and

Sy. No.343/14B. The said suit, after contest, was decreed,

which attained finality before this Court in

R.S.A.No.2189/2011. The petitioner sought execution of

the decree in Execution Petition No.4/2008. The Execution

Court appointed a Surveyor attached to the Office of the

Tahasildar, Chikkamagalur to measure and demarcate the

property. The Commissioner along with local police had

been to the spot to execute the delivery warrant. The

Bailiff, who accompanied the Commissioner, identified a

cow shed, car shed, oddi and drying yard situate in

Sy. No.343/14A but did not identify the cow shed and a

house in Sy. No.343/14B in the sketch, which was attested

by the Decree Holder as well as Judgment Debtor.

3. The Decree Holder thereafter filed two

applications. I.A.No.II was filed seeking the appointment of

a Revenue Officer as a Court Commissioner to identify the

land as per the sketch appended to the decree and deliver

possession of the land in Sy. No.343/14A and Sy.

No.343/14B. I.A.No.III was filed to examine himself,

Surveyor, Court bailiff etc to prove that the Commissioner

warrant issued was not executed and that the Surveyor

and that the Surveyor and bailiff played into the hands of

the Judgment Debtors. He claimed that the decree was not

completely executed. These two applications were opposed

by the Judgment Debtor who contended that the decree

was in fact executed and that the building that lay within

alleged encroached area were demolished and the

possession was handed over to the Decree Holder.

4. The Executing Court in terms of its order, which

is impugned in the present petition, held that the Court

Commissioner and the Bailiff were accompanied by the

police and that there was no material to substantiate the

allegations that the Judgment Debtor had colluded with the

Court Commissioner and the Bailiff. The Executing Court

held that the Court Commissioner and Bailiff were public

servants and that they usually discharged official duty

promptly. The Executing Court, therefore, held that the

report of Bailiff cannot be doubted. It also held that if the

report of the Court Commissioner was not appropriate,

then the Decree Holder as well as the Judgment Debtor

would not have signed the Bailiff report. With these

observations, the Executing Court rejected the application

filed by the Decree Holder.

5. Feeling aggrieved by the aforesaid order, the

present * petition is filed.

6. Learned counsel for the petitioner submits that

Ex.P.17 was a document that was proved in trial before the

Court in O.S.No.267/1987 and therefore, the Bailiff ought

to have identified the buildings that existed as per Ex.P.17

and must have delivered the possession of the property as

found in Ex.P.17. He submits that since the buildings were

not demolished, the decree was not completely executed

and therefore, he prays for a Surveyor to be appointed as

a Court Commissioner to ensure that the decree passed in

his favor is completely executed.

7. Learned counsel for the respondents, on the

other hand, submitted that the decree was completely

*Deleted vide Chamber Order dated 23.12.2021

executed and the buildings were demolished by the

Judgment Debtor himself and therefore, there was no need

for a Second Commissioner to be appointed to identify the

property allegedly encroached by the respondents.

8. When once the Court found that the Judgment

Debtor had encroached into 4 guntas of land each in

No.343/14A and Sy. No.343/14B, it was incumbent upon

the Court to ensure that fruits of the decree is passed on

to the Decree Holder. If the Decree Holder claims that the

decree is not fully satisfied and that he is willing to bear

expenses of appointing a Surveyor as Court Commissioner

to identify "Whether the possession of the property was

delivered to him after demolishing the building", the

Executing Court ought not to have lightly considered the

request of the Decree Holder. This is a classic case of the

Court throwing the baby with the bath water. The

Executing Court ought to have appointed a Commissioner

more particularly in view of the fact that the Decree Holder

alleged that the buildings that were found on the

encroached Sy. No.343/14A and Sy. No.343/14B were still

in existence.

In that view of the matter, this * petition is

allowed and the impugned order dated 17.12.2013

passed by the I Additional Civil Judge and JMFC,

Chikmagaluru in Ex.No.4/2008 on I.A.Nos.II and III is set-

aside.

The Executing Court is directed to appoint a Revenue

Surveyor as a Court Commissioner, who shall identify the

boundaries of the property as per Ex.P.17 and to identify

the buildings existing thereon and thereafter hand over the

same in accordance with law after demolishing the

construction/drying yard.

Sd/-

JUDGE

NBM

*Deleted vide Chamber Order dated 23.12.2021