Sri. N Nagendra S/O Late N ... vs Smt. Chowdamma W/O Late A. Ramanna
2021 Latest Caselaw 5852 Kant

        IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

   DATED THIS THE 09thDAY OF DECEMBER 2021

                       BEFORE

   THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

          W.P.NO.103475/2021 (GM-CPC)

BETWEEN

SRI. N NAGENDRA S/O LATE N MALLESHAPPA
AGED ABOUT 45 YEARS,AGRICULTURIST,
R/O FARM HOUSE,
OPP. NARASIMHULU HOUSE,
NEAR HARIPRIYA NAGAR,
NEAR NALANDA SCHOOL,
SANGANAKALLU ROAD,
BALLARI - 583101, DISTRICT BALLARI.
                                         ...PETITIONER
(BY SRI.VEERESH R BUDIHAL, ADV.)

AND

SMT. CHOWDAMMA W/O LATE A. RAMANNA
AGED ABOUT 75 YEARS,AGRICULTURIST,
R/O MILLER PET,NEAR WATER TANK,
BALLARI - 583101,DISTRICT BALLARI.
                                      .....RESPONDENT
(BY SRI.S.G.KADADAKATTI, ADV.)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TOA. ISSUE
THE WRIT OF CERTIORARI QUASHING THE ORDER PASSED
BY THE II ADDITIONAL SENIOR CIVIL JUDGE BALLARI ON IA
NO VII IN E.P.NO. 166-2017 DATED 14-2-2019 VIDE
AT.ANNEXURE G, BY ALLOWING THE APPLICATION FILED BY
THE PETITIONER HEREIN AND ETC.,
                              :2:




     THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:

                            ORDER

1. A suit in O.S.No.98 of 2005 was filed seeking for

declaration and for possession. The said suit was dismissed.

However, on appeal, this dismissal was set aside and the suit

came to be decreed in R.A.No.85 of 2008.

2. The decree passed by the Appellate Court was

confirmed by this Court in R.S.A.No.5030 of 2010 and also by

the Supreme Court. Thus, the decree for declaration and for

possession has stood confirmed right up to the Apex Court.

3. An Execution Petition was filed to execute this

decree and in these proceedings, a delivery warrant was

issued. The bailiff, however, submitted a report stating that

wife of the judgment debtor was obstructing execution of

delivery warrant. Immediately thereafter, a third party

objector filed an application obstructing the execution of the

decree. This application was allowed by the Executing Court,

but, however, this Court in W.P.No.106827 of 2019, set aside

the said order and the application filed by the 3rd party

objector was rejected.

4. As against the rejection of the 3rdparty objector's

application, an SLP was preferred to the Supreme Court, but

the same was also dismissed. Thus, the claim of even the 3rd

party objector was rejected.

5. Thereafter, an application was filed by the

Judgment Debtor to recall the delivery warrant on the ground

that the notice of the execution petition was not served on

him. This application was rejected. As against rejection, the

Judgment Debtor preferred W.P.No.100295 of 2021. However,

this Court dismissed the said writ petition.

6. After dismissal of the writ petition, the Judgment

Debtor filed application to recall delivery warrant on the

ground that there was a dispute about the identity of the

property and also on the ground that there was standing

crops on the schedule property.

7. The Trial Court by the order dated 12.04.2021,

has rejected both its applications i.e. I.A.Nos.7 and 8.

Thereafter delivery warrant was issued by the Executing

Court. However, delivery warrant was returned un-executed

by the bailiff with a report stating that the southern side

boundary of the suit property could not be identified. The

Executing Court taking notice of the fact that southern side of

the boundary was shown as 30 feet road. The bailiff could not

fix the boundary and therefore granted liberty to the bailiff to

get assistance of Surveyor to fix southern side of the

boundary. The Trial Court accordingly has accepted the report

of the bailiff and has directed the ADLR to assist the Court and

the bailiff in fixing southern side of boundary of the suit

schedule property.

8. It is against these orders that are passed on

I.A.Nos.7, 8 and 9 and the order directing the ADLR to assist

the bailiff to fix southern boundary, the present writ petition is

filed by the Judgment Debtor.

9. The facts narrated above clearly prove the old

adage that "the miseries of the decree holders begin after he

obtains the decree".

10. The narration of the facts clearly indicate that an

attempt has been made at every stage of the proceedings to

thwart the execution of the decree. A decree which was

confirmed by this Court in 2010 and confirmed even by the

Supreme Court was initially sought to be upset by putting up

a 3rdparty objector. This claim of the 3rdparty object was also

rejected and confirmed by the Apex Court.

11. Thereafter, an application has been made to recall

delivery warrant on the ground that notice of the Execution

Petition was not served. After this attempt had failed, the

Judgment Debtor has now raised question relating to the

identity of the property.

12. In my view, these facts by themselves

conclusively prove that there is absolutely no merit in the

allegation raised by the petitioner-Judgment Debtor. The

argument that property could not be identified cannot really

have any substance. Admittedly, it is not the case of the

Judgment Debtor that at any stage of the proceedings right

from filing of the suit till passing of order by the Supreme

Court that there was a dispute regarding the identity of the

property. Both the parties have fought a long and bitter battle

regarding their entitlement over suit schedule property and

during the entire length of this battle, there has never been

any dispute raised by the petitioner-Judgment Debtor that

there was any dispute relating to the identity of the property.

The attempt, therefore, to raise a dispute regarding the

identity, is clearly an afterthought and designed solely to

protract the proceedings.

13. The Trial Court, in my view, has passed not only a

just order but also a proper order. While rejecting all the

applications, the Trial Court, given the facts and

circumstances of the case was absolutely justified in directing

the ADLR to assist the bailiff in fixing the boundary and

thereby ensuring that the decree holder was able to reap the

fruits of his decree. I see absolutely no ground to entertain

this writ petition. Writ petition is therefore dismissed.

Sd/-

JUDGE KGK