Basavva W/O Gadigeppa Bashetti, vs Raosaheb Mallanagouda Patil,
2021 Latest Caselaw 1222 Kant

           IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

      DATED THIS THE 20TH DAY OF JANUARY 2021

                         BEFORE

      THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


                C.R.P. NO.1047 OF 2011

BETWEEN:

1 . BASAVVA W/O GADIGEPPA BASHETTI,
AGE: 56 YEARS,
OCC: HOUSEHOLD WORK,
R/O BOCHABAL,
TALUK: RAMDURG,
DISTRICT : BELGAUM.
                                         ... PETITIONER

(By SRI. SATHISH M. S., ADVOCATE )

AND

1 . SRI. RAOSAHEB MALLANAGOUDA PATIL,
AGE: 60 YEARS, OCC: AGRICULTURE,

2 . SRI. MAHADEVAPPA BHIMAPPA HADAPAD,
AGE : 55 YEARS, OCC : AGRICULTURE,
SINCE DECEASED REPRESENTED BY HIS LRS

2(A) PARAWWA W/O MAHADEVAPPA HADAPAD,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O. BOCHABAL VILLAGE,
TALUK: RAMDURG,
DISTRICT: BELGAUM.
                               2



2 (B) MARUTI S/O MAHADEVAPPA HADAPAD,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O. BOCHABAL VILLAGE,
TALUK: RAMDURG,
DISTRICT: BELGAUM.

3 . HANAMANT FAKIRAPPA HOOLIKATTI,
AGE: 45 YEARS, OCC: AGRICULTURE,

4 . GANGAPPA ITAPPA KITADAL,
AGE: 45 YEARS, OCC: AGRICULTURE,

5 . BASAPPA BASAPPA ANGADI,
AGE: 35 YEARS, OCC: AGRICULTURE,

RESPONDENT NOS.3 TO 5 ARE
R/O. BOCHABAL VILLAGE,
TALUK: RAMDURG,
DISTRICT: BELGAUM.

6 . THE SECRETARY,
GRAM PANCHAYAT HALE-TORAGAL,
TALUK: RAMDURG,
DIST: BELGAUM.
                                           ... RESPONDENTS

(By SRI. V G BHAT FOR R1, R2(A and B), R.3 AND R.4.
R.5 DELETED VIDE COURT ORDER DTD. 07.09.2020.
R.6 IS SERVED. )


     THIS PETITION IS FILED UNDER SECTION 115 OF C.P.C.
PRAYING TO SET ASIDE THE ORDER DATED 06.01.2011 PASSED IN
EXECUTION PETITION NO.21/2001 ON THE FILE OF THE CIVIL
JUDGE AND JMFC RAMDURG AND ALLOW THE EXECUTION
PETITION FILED BY THE PETITIONER IN THE INTEREST OF JUSTICE
AND EQUITY.
                                     3


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

                                 ORDER

Calling in question the order dated 06.01.2011

dismissing Execution Petition No.21/2001 by the learned

Civil Judge and JMFC, Ramdurg, this petition is filed under

Section 115 of the Code of Civil Procedure, 1908 (for

short, CPC).

2. The petitioner herein had filed Execution Petition

No.21/2001 before the learned Civil Judge and JMFC,

Ramdurg, under Order XXI Rule 32(1) of CPC, complaining

that the respondents - judgment debtors had disobeyed

the decree of permanent injunction granted on 02.08.2001

in O.S.No.22/1997. It is stated that, petitioner herein

was the owner of house property bearing VPC No.678/A

measuring 13 x 15 feet with `katta' measuring 5 x 12 feet

of Boachabal village, Ramdurg Taluk, Belgaum District.

Alleging that the respondents had indulged in interfering

with her possession and were threatening to demolish her

house property, she had filed O.S.No.22/1997, which

came to be decreed on 02.08.2001. Subsequently, she

filed Execution Petition No.21/2001, alleging that on

10.09.2001 the respondents had partially demolished the

`katta'. The Execution Petition came to be filed seeking

enquiry and detention of the respondents in civil prison

and also for attachment of their property.

3. During enquiry, the petitioner herein examined

herself as P.W.1 and she produced copy of the decree

which was marked as Ex.P.1. After hearing, the learned

Civil Judge, Ramdurg passed the impugned order dated

06.01.2011 dismissing the Execution Petition with costs.

4. Learned counsel Sri. M.S. Sathish appearing for

the petitioner - decree holder, vehemently contends that

learned Executing Court has not considered the facts in a

proper perspective and on account of the same, it has

passed an erroneous order and dismissed the Execution

Petition. He submitted that it was pleaded clearly in the

Execution Petition that in spite of the decree for

permanent injunction passed by the learned trial Court in

O.S.No.22/1997 against the respondents herein, they had

demolished the `katta' in part on 10.09.2001 and thereby

they had disobeyed the decree of permanent injunction

passed. He submitted that decree holder/petitioner herein

had also examined herself as P.W.1 and deposed about

the fact of respondents committing the act of disobeying

the decree of injunction and therefore the learned Civil

Judge was wholly in error in dismissing the Execution

Petition.

5. Learned counsel Sri. V.G. Bhat appearing for

respondent Nos. 1, 2(a) and (b), 3 and 4, per contra

submits that learned Executing Court was right and

justified in dismissing the Execution Petition in view of the

fact that the petitioner has not at all deposed as to when

exactly the act of disobedience of the decree of injunction

was committed by the respondents and further that even

the report of the Court Commissioner has not thrown any

light as to when exactly the breach of decree of injunction

was committed. He therefore submits that there is no

error or illegality or perversity in the order of the learned

Executing Court and as such the above petition is liable to

be dismissed.

6. The facts borne out from the records clearly

show that the suit filed by the petitioner herein in

O.S.No.22/1997 was decreed on 02.08.2001 against the

respondents, by which a permanent injunction was

granted in respect of VPC No.678/A measuring 13 x 15

feet with `katta' measuring 5 x 12 feet, restraining the

respondents - defendants from interfering with the

possession and peaceful enjoyment of the petitioner

herein. The allegation in the Execution Petition was to

the effect that on 10.09.2001, in disobedience of the

decree of permanent injunction, respondents had indulged

in demolition of the `katta' of the house. Learned

Executing Court, on appreciating the evidence has come

to two conclusions, namely (i) that the petitioner has

failed to establish the date of demolition of the `katta',

particularly as to whether it was prior to the date of

decree or subsequent to the date of decree, and (ii) that

the report of the Court Commissioner on the subject does

not throw any light as to the date of disobedience of the

decree of permanent injunction.

7. I have perused the records including the

deposition of P.W.1, Execution Petition and also Ex.P.1

which is a copy of the decree in O.S.No.22/1997. As

rightly noticed by the learned Executing Court, P.W.1 has

not at all spoken as to when exactly the act of

disobedience of the decree was committed and whether it

was prior to 02.08.2001 - the date of the decree or

subsequent to the same, which alone can establish the act

of disobedience of the decree. On the other hand, careful

perusal of the evidence of P.W.1 shows that the only act

of demolition of the `katta' spoken to by her as against

the respondents was that it was said to have been done in

the year 1995. With regard to the same, she states in her

evidence that she had lodged a Police complaint and

pursuant to the same, Police had filed a charge sheet and

even though the respondents were acquitted in the Court

of first instance, the said finding was over turned by this

Court and pursuant to the same, respondents had

preferred appeal to the Supreme Court of India and the

said appeal is stated to be pending. Even in the said

deposition, as rightly noticed by the learned Executing

Court, there is absolutely nothing stated by her that the

respondents had disobeyed the decree of injunction after

02.08.2001 when the decree came to be passed. Further

in the report of the Court Commissioner also, local

inspection for which was held in the year 2005, the

learned Court Commissioner could have pointed out the

probable time when the act of demolition was done. All

that the Commissioner's report states is that the house

was completely dilapidated and there is no trace of

anybody living there. In view of the above material

available, learned Executing Court was wholly justified in

arriving at a conclusion that the petitioner has miserably

failed to establish that there was any act of disobedience

of the decree of injunction passed in O.S.No.22/1997 and

thus on the said conclusion it was justified in dismissing

the Execution Petition.

8. I do not find any error or illegality in the

impugned order and therefore, there is no merit in the

above petition, and accordingly it is liable to be

dismissed.

9. Hence, the following :

O R D E R

The above petition is dismissed.

Sd/-

JUDGE

Mgn/-