Karnataka High Court
Sri. Ganesh vs Sri.Appaji Gowda on 14 February, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.526 OF 2022 (GM-CPC)
BETWEEN:
1. SRI. GANESH
S/O KEMPA RANGA
AGED ABOUT 53 YEARS
2. SUBRAMANYA
S/O KEMPA RANGA
AGED ABOUT 56 YEARS
SMT RADHA
D/O NANJAMMA
SINCE DEAD REP
BY LEGAL REPRESENTATIVES
3. SRI BANNARI
S/O PUTTASWAMY
H/O LATE RADHA
AGED ABOUT 38 YEARS
PETITIONERS NOS.1 TO 3 ARE
RESIDING AT SWEEPERS COLONY
SIDDAPPAJI ROAD
HEGGADA DEVANA KOTE TOWN-571 114.
...PETITIONERS
(By Sri. Y K NARAYANA SHARMA, ADVOCATE, (VC)
2
AND:
SRI.APPAJI GOWDA
SINCE DEAD,
REPRESENTED BY HIS
LEGAL REPRESENTATIVES
1. SMT PUTTAMMA
W/O LATE APPAJI GOWDA
AGED ABOUT 69 YEARS
2. SRI SOMASHEKHARA
S/O LATE APPAJI GOWDA
AGED ABOUT 47 YEARS
3. SMT JALAJAKSHI
W/O SHANKARALINGEGOWDA
AGED ABOUT 57 YEARS
4. SRI.CHANDRAPRABHA
W/O BALARAJU
AGED ABOUT 54 YEARS
5. SRI CHANDRU MANI
W/O RAMESH
AGED ABOUT 52 YEARS
6. SMT ANUSUYA
W/O SATHISH
AGED ABOUT 50 YEARS
7. SMT SUMITHRA
W/O NAGENDRA
AGED ABOUT 48 YEARS
THE RESPONDENTS NO.1 TO 7 ARE RESIDING AT
DOOR NO.1603, HOUSING BOARD COLONY
HEGGADA DEVANA KOTE TOWN-571 114.
3
8. SMT RACHAMMA
D/O VENKATAIAH
MAJOR, RESIDING AT
SWEEPERS COLONY
SIDDAPPAJI ROAD
HEGGADA DEVANA KOTE TOWN-571 114
...RESPONDENTS
(BY SRI.SANGAMESH R.B., ADVOCATE FOR C/R2 AND
ALSO for R1 & R3 to R7 (PH)
VIDE ORDER DTD.14.02.2022, NOTICE TO R8 IS D/W)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER DTD.16.11.2021 PASSED IN EX.
NO.26/2017 BY THE COURT OF SENIOR CIVIL JUDGE AND
JMFC H.D.KOTE AS PER ANNEXURE-K AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners aggrieved by the order dated
16.11.2021 passed in Execution No.26/2017 by the
Court of Senior Civil Judge and JMFC, H.D.Kote has
filed this writ petition.
2. Brief facts leading rise to filing of this writ
petition are as under:
The husband of respondent No.1 and father of
respondent Nos.2 to 7 filed a suit in O.S.No.199/1997
on the file of Civil Judge (Sr.Dn) & J.M.F.C., Hunsur
seeking for relief of possession of the suit schedule
property and for permanent injunction against the
petitioners and respondent No.8. The said suit came
to be decreed by the judgment and decree dated
25.11.2009. The deceased plaintiff had filed execution
petition in Ex.No.78/2010 and took the possession of
the suit schedule property on 06.02.2013 by
executing the said decree passed in the aforesaid suit.
Subsequently, the original plaintiff died. The
respondent Nos.1 to 7 are the legal heirs of deceased
original plaintiff filed an execution petition in
Execution No.26/2017 against the petitioners and
respondent No.8 before the Trial Court seeking arrest
of the petitioners and to keep them in a Civil prison
alleging that they have violated the judgment and
decree passed in the aforesaid suit. It is contended by
the respondent Nos.1 to 7 that the petitioners along
with their representatives and agents removed the
boundary stones and attempted to disturb the
possession of respondent Nos.1 to 7 and trying to
obstruction/interference with the possession over the
suit schedule property. The executing Court issued a
notice to the petitioners, the petitioners appeared and
filed detailed objections contending that the
petitioners have already handed over the possession
of suit schedule property to original plaintiff. After his
demise the respondent Nos.1 to 7 are in possession. It
is also further contended that the petitioners are not
interfering in a peaceful possession and enjoyment of
respondent Nos.1 to 7 over the suit schedule property.
The Executing Court after hearing the parties allowed
the petition, vide order dated 16.11.2021 and
consequently, directed the petitioners and respondent
No.8 to be detained in civil prison for a period of 15
days. The petitioners aggrieved by the order passed in
the aforesaid execution petition has filed this writ
petition.
3. Heard the learned counsel for the
petitioners and also the learned counsel for
respondent Nos.1 to 7.
4. Learned counsel for the petitioners submits
that the petitioners have stated in their statement of
objections that the possession was handed over to the
original plaintiff through the process of law and
further, the petitioners have never interfered in
peaceful possession and enjoyment of the suit
schedule property. He further submits that the
executing Court did not consider the said aspect and
proceeded to pass the impugned order. He further
submits that the petitioners have filed an undertaking
affidavit and contending that respondent Nos.1 to 7
are in peaceful possession and enjoyment of the suit
schedule property and the petitioners undertake that
they will never interfere with the possession of the
property by respondent Nos.1 to 7. Hence, on these
grounds, he prays to allow the writ petition.
5. Per contra, learned counsel for the
respondents submits that in view of the undertaking
given by the petitioners nothing survives for
consideration in this writ petition.
6. Heard and perused the records and
considered the submissions of the learned counsel for
the parties.
7. It is not in dispute that Sri Appagi Gowda
has filed a suit for possession and permanent
injunction. The said suit came to be decreed against
the petitioners and respondent No.8. The petitioners
did not comply the decree passed in favour of Sri
Appagi Gowda. The said Sri Appaji Gowda has filed
Execution Petition No.78/2010. In the said execution
petition, the Trial Court issued a warrant for delivery
of possession and thereafter, the petitioners have
surrendered the possession of the suit schedule
property in favour deceased - Sri Appaji Gowda.
Sri Appaji Gowda died leaving behind respondent
Nos.1 to 7 as his legal heirs. After the death of
Sri Appaji Gowda, it is alleged by respondent Nos.1 to
7 that the petitioners are interfering with the peaceful
possession and enjoyment of the suit schedule
property. Though the petitioners have contended in
the statement of objections that the petitioners are
not interfering with the peaceful possession and
enjoyment of the suit schedule property, the trial
Court without considering the contentions raised by
the petitioners in the objections, proceeded to allow
the execution petition. The Trial Court has committed
an error in passing the impugned order. Further, the
petitioners have filed an undertaken before this Court
that they have undertaken that they would never
interfere with peaceful possession and enjoyment of
respondent Nos.1 to 7 over the suit schedule property
and they have also admitted the possession of the
respondent Nos.1 to 7 over the suit schedule property.
The said undertaking is placed on record. In view of
the above discussion, I proceed to pass the following:
ORDER
i. The writ petition is allowed.
ii. The impugned order is set aside and
consequently, the Execution Petition
filed by the respondent Nos.1 to 7 is
disposed of.
Sd/-
Judge
rv
