Thimanna vs C T Somashekhara
2022 Latest Caselaw 3422 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                        BEFORE

       THE HON'BLE MR. JUSTICE E.S. INDIRESH

     WRIT PETITION NO.28018 OF 2019 (GM-CPC)

BETWEEN:

 1. THIMANNA
    S/O LATE CHOWDAPPA
    AGED ABOUT 64 YEARS
    R/O CHANNAPURA VILLAGE
    AJJAMPURA HOBLI
    TARIKERE TALUK
    CHIKKAMAGALURU DISTRICT-577 547.

 2. GANGAMMA
    W/O THIMMANNA
    AGED ABOUT 55 YEARS
    R/O CHANNAPURA VILLAGE
    AJJAMPURA HOBLI
    TARIKERE TALUK
    CHIKKAMAGALURU DISTRICT-577 547.

 3. C T KUMARA
    S/O THIMMANNA
    AGED ABOUT 25 YEARS
    R/O CHANNAPURA VILLAGE
    AJJAMPURA HOBLI
    TARIKERE TALUK
    CHIKKAMAGALURU DISTRICT-577 547.

                                          ...PETITIONERS
(BY SRI MAHANTESH S. HOSMATH, ADVOCATE)
                                  2



AND:

 1. C T SOMASHEKHARA
    S/O THIMMANNA
    AGED ABOUT 35 YEARS
    R/O CHANNAPURA VILLAGE
    AJJAMPURA HOBLI
    TARIKERE TALUK
    CHIKKAMAGALURU DISTRICT-577 547.

 2. C T MANJUNATH
    S/O THIMMANNA
    AGED ABOUT 25 YEARS
    R/O CHANNAPURA VILLAGE
    AJJAMPURA HOBLI
    TARIKERE TALUK
    CHIKKAMAGALURU DISTRICT-577 547.
                                                 ....RESPONDENTS
(BY SRI RAVI H.K., ADVOCATE FOR R1;
 NOTICE FOR R2 SERVED BUT UNREPRESENTED)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDERS PASSED ON I.A. NO.1/2019 AND I.A.
NO.2/2019 DATED 04TH JUNE, 2019 PASSED BY THE LEARNED
CIVIL    JUDGE   AND    ADDITIONAL    JMFC,  TARIKERE,
CHIKKAMAGALUR DISTRICT IN EX.NO.25 OF 2019 WHICH IS
PRODUCED AT ANNEXURE-F TO THE WRIT PETITION.

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

                            ORDER

This writ petition is filed challenging the order dated 04th

June, 2019 passed on IAs.I and II of 2019 in Execution

proceedings No.25 of 2019 by the Civil Judge and Additional

JMFC, Tarikere, Chikkamagaluru District.

2. The first respondent is the plaintiff in Original Suit No.4

of 2007 on the file of the Civil Judge and Additional JMFC,

Tarikere (for short, hereinafter referred to as 'trial Court'). The

first respondent has stated that the schedule properties are the

joint family properties. It is further stated in the writ petition

that the first respondent has demanded to the defendants

execute the registered partition deed as per the partition deed

dated 28th April, 2006 and the defendants/petitioners herein

have refuted the same. Hence, respondent No.1 has filed

Original Suit No.4 of 2007 on the file of the trial Court seeking

relief of mandatory and permanent injunction. The trial Court,

after completion of the proceedings, by its judgment and decree

dated 21st December, 2018 (Annexure-A), partly decreed the

suit, consequently, the defendants therein are restrained from

interfering with plaintiff's peaceful possession and enjoyment

over the 'B' schedule properties, by way of permanent

injunction. It is also stated in the writ petition that, being

aggrieved by the judgment and decree passed by the trial Court,

the petitioners herein have filed Regular Appeal No.14 of 2019

on the file of the First Appellate Court and same is pending

consideration. In the meanwhile, respondent No.1 has filed

Execution petition No.25 of 2019 before the trial Court and in the

said Execution proceedings, respondent No.1/decree holder has

filed application under Order XXI Rule 32(5) read with Section

151 of the Civil Procedure Code to direct the Sub Inspector of

Police, Ajjampura Police Station to render police help to maintain

possession and peaceful enjoyment of decree holder over the

suit schedule property. The said application was resisted by the

petitioners herein. The trial Court, after considering the same,

by order dated 04th June, 2019, allowed the application,

consequently, directed the police authorities to render police

help in favour of the Decree holder to protect his possession over

the petition schedule properties. Being aggrieved by the same,

the present petition is filed.

3. I have heard Sri. Mahantesh S. Hosmath, learned

counsel for petitioners and Sri. Ravi H.K, learned counsel

appearing for respondent No.1.

4. Sri. Mahantesh S. Hosmath, learned counsel appearing

for petitioners contended that the impugned order passed by the

trial Court is contrary to the records. He further submitted that

the impugned order is not a speaking order and the trial Court

has not considered the provisions under Order XXI Rule 22(2),

which mandates to dispense issuance of show cause notice to

judgment debtors prior to taking decision in the matter.

5. Per contra, Sri. Ravi. H.K, learned counsel appearing for

respondent No.1 sought to justify the impugned order passed by

the trial Court.

6. Having heard the learned counsel appearing for parties

it is not in dispute that the suit in Original Suit No.4 of 2007 filed

by respondent No.1 before the Civil Judge and Additional JMFC,

Tarikere is decreed in favour of the respondent No.1. Being

aggrieved by the same, the petitioners herein have preferred

Regular Appeal No.14 of 2019 before the First Appellate Court

and the same is pending consideration before the First Appellate

Court. No doubt, the petitioners herein have to establish their

right insofar as the suit schedule properties are concerned in

Regular Appeal No.14 of 2019, however, looking into the finding

recorded by the trial Court, in the event police help is granted in

favour of the decree holder, in my considered opinion, no

prejudice would be caused to the judgment debtor/petitioners

herein. I have also considered the fact that the matter is

pending consideration before the First Appellate Court. In that

view of the matter, I do not find any perversity in the order

passed by the trial Court.

Accordingly, Writ petition is dismissed.

Sd/-

JUDGE

ARK