Siddappa vs Manjappa
2022 Latest Caselaw 3399 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                           BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

       WRIT PETITION No.47020 OF 2014 (GM-CPC)

BETWEEN:

Siddappa
Son of Thotada Manjappa
Aged about 60 years,
Resident of Honnanaviile village,
Taluk & District Shimoga - 577201.
                                        ..   Petitioner

(By Sri. C.M. Desai, Advocate)

AND:

1. Manjappa,
Son of Hanumanthappa
Aged about 62 years,
Resident of Honnanaviile village,
Taluk and District Shimoga - 577201.

2. Ningappa,
Son of Thotada Manjappa
Wife of Kariyappa
Aged about 43 years,
R/o. Honnavile village,
Taluk and District Shimoga - 577201.
                                             .. Respondents
(By Sri. R. Gopal, Advocate for R-1;
Notice to R-2 - dispensed with v/o.dt.15-10-2014)

                             ****
                                                 W.P.No.47020/2014
                                2


      This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to quash both the orders dated
19-03-2014 and 04-09-2014 passed in the Execution Petition
No.110/2009 on the file of the II Additional Civil Judge & JMFC,
Shimoga under Annexure 'F' and 'H' by issue of writ of certiorari
and to consider I.A.No.8, under Annexure G on merits; issue a
writ of prohibition to prohibit the first respondent from
obstructing the agricultural operations of the petitioner's
execution schedule property in any manner, to issue such other
writ, order or direction as may be deemed fit to issue in the
circumstances of this case including an order as to cost in the
interest of justice and equity.

      This Writ Petition coming on for Preliminary Hearing in `B'
Group, through Physical Hearing/Video Conferencing Hearing,
this day, the Court made the following:

                           ORDER

The present petitioner who was first judgment debtor

in Execution Case No.110/2009, on the file of the learned II

Additional Civil Judge and JMFC, at Shivamogga,(hereinafter

for brevity referred to as "the Executing Court"), has filed

this writ petition, challenging the orders dated 19-03-2014

and 04-09-2014 passed in the said matter.

2. The respondent No.1 is being represented by his

learned counsel. Notice to respondent No.2 is dispensed

with. This matter was earlier connected with Writ Petition

No.13233/2014. However, at the submission made by the W.P.No.47020/2014

learned counsels from both side, this writ petition has now

been disconnected and is taken up separately.

3. The undisputed facts are that, the present

respondent No.1, as a plaintiff, had instituted a suit against

the present petitioner and present respondent No.2,

arraigning them as defendant Nos.1 and 2 in Original Suit

No.184/1994, in the Court of the I Additional Civil Judge

(Jr.Dn.) at Shimoga, for the relief of permanent injunction,

seeking to restrain the defendants or anyone claiming

through them from interfering in his alleged peaceful

possession of the suit schedule immovable properties. The

said suit came to be decreed on 28-08-2004. Aggrieved by

the same, the defendants filed an appeal in R.A.No.73/2004

which came to be dismissed on its merit on 24-07-2006.

Thereafter, alleging that the defendants have encroached

some portion of his property and have thus committed

breach of the decree, the decree holder/plaintiff filed an

Execution Petition in Execution Case No.110/2009. The

Executing Court observing that the possession of the W.P.No.47020/2014

alleged encroached portion of the property has been

delivered through the process of the Court by Amin to the

decree holder, closed the Execution petition as decree is

satisfied on 19-03-2014. Thereafter, the present petitioner

who was judgment debtor No.1 (decree holder No.1) filed

an application in I.A.No.8 under Section 151 of the Code of

Civil Procedure, 1908 (hereinafter for brevity referred to as

"the CPC"), seeking to recall the order dated 19-03-2014

and to provide an opportunity to submit their objection to

the report of the process server/Amin and hear the

judgment debtor on the same. The Executing Court, by its

brief order dated 04-09-2014 observing that, the delivery

warrant was executed on 18-03-2014 and stay was granted

by the High Court on 19-03-2014 which was subsequent to

delivery of the property, hence, unless there is an order for

restoration of the possession, no purpose would be served

by re-opening the case, closed the petition. It is challenging

those two orders dated 19-03-2014 and 04-09-2014, the W.P.No.47020/2014

present writ petition has been filed before this Court by the

judgment debtor No.1 in the Executing Court.

4. Learned counsel for the petitioner in his brief

argument submitted that, the Executing Court which had

taken I.A.No.8 on record and had issued notice to the

decree holder on the said I.A.No.8, was incorrect in not

hearing the applicant/Judgment debtor No.1 on I.A.No.8,

but proceeding in closing the Execution Case, again without

even passing any order on I.A.No.8, either allowing it or

rejecting it on merit.

5. Per contra, learned counsel for the respondent

No.1 submitted that, the very reading of the order dated

04-09-2014 would go to show that I.A.No.8 has not been

entertained by the Executing Court, as such, the impugned

order does not warrant any interference by this Court.

6. Between the same parties, one more writ petition

is pending wherein the present petitioner as a writ

petitioner in the said writ petition No.13233/2014 has W.P.No.47020/2014

challenged rejection of his I.A.No.7 seeking dismissal of the

petition in view of the report of the Court Commissioner and

over-ruling his main objection to the Execution petition.

However, thereafter, by virtue of subsequent development,

in the same execution petition, after the judgment debtor

No.1 (present petitioner) filing I.A.No.8 which resulted in

the outcome of the order dated 04-09-2014, the present

writ petition is filed.

7. In the order dated 19-03-2014, the execution

petition earlier came to be closed, observing that the decree

is satisfied which observation came to be made after the

decree holder submitting that the possession of the suit

schedule property was delivered to him. The subsequent

order dated 04-09-2014 which came to be passed

subsequent to the Judgment Debtor No. 1 (present

petitioner) filing I.A.No.8, the order in its entirety reads as

below:

"In the present case delivery warrant was executed on 18-03-2014 and stay was granted by the Hon'ble High Court on 19-03-2014 subsequent to W.P.No.47020/2014

the delivery of the property. Hence, unless there is an order for restoration of the possession, no purpose would be served by reopening the present case.

Accordingly, the petition is closed."

Though a reading of the said order dated 04-09-2014

may give an impression that the Court was not inclined to

allow I.A.No.8, but the Executing Court which had received

said I.A.No.8 and ordered notice to the decree holder upon

the said I.A., was required to and expected to specifically

mention about either allowing the said I.A.No.8 or rejection

of the said I.A.No.8. Merely because an observation is

made that re-opening of the case would have served no

purpose, by itself, cannot be inferred that it has in clear

terms rejected I.A.No.8. Added to the same, a perusal of

the order sheet also no where mentions that on I.A.No.8,

either the decree holder was granted an opportunity to file

his objections or at least the applicant (Judgment debtor

No.1) was heard on the said application. Therefore, in the

absence of an opportunity of hearing being given to the W.P.No.47020/2014

applicant on I.A.No.8 and also in the absence of mentioning

either allowing or dismissal of the said I.A., as submitted by

the learned counsel for the petitioner, it has to be inferred

that I.A.No.8 is still pending in the Executing Court. As

such, in order to enable the said Court to pass a specific

order on I.A.No.8 on its merit, the matter requires to be

remanded by recalling the order dated 04-09-2014.

Accordingly, the writ petition is allowed in part.

The matter is remanded to the learned II Additional

Civil Judge (Junior Division) at Shivamogga, with a

direction to dispose of I.A.No.8, in accordance with law, at

the earliest, not later than six weeks from today.

In order to avoid any further delay, both parties are

directed to appear before the learned II Additional Civil

Judge (Junior Division) at Shivamogga, on 14-03-2022 at

11:00 a.m. without anticipating any fresh summons or

notice.

W.P.No.47020/2014

Registry to transmit a copy of this order along with the

Executing Court records, if any, pertaining to the said

O.S.No.184/1994 to the concerned Executing Court,

immediately.

Sd/-

JUDGE

BMV*