Sri Nagaraj Reddy vs Sri K V Chandrashekara Reddy
2022 Latest Caselaw 11066 Kant

                            1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF JULY, 2022

                       BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

    WRIT PETITION NO.10197 OF 2021(GM-CPC)

BETWEEN:

SRI NAGARAJ REDDY
AGED ABOUT 67 YEARS
S/O LATE BIYYA RAMAIAH
R/AT 90/5, 24TH MAIN,
'3' A CROSS, BTM II STAGE
BENGALURU - 560 076.

                                      ...PETITIONER

(BY SRI.SAINATH, ADVOCATE)

AND:

1. SRI K V CHANDRASHEKARA REDDY
S/O SRI VENKATA REDDY
AGED ABOUT 53 YEARS,
R/AT KODUGE STREET, SARJAPURA POST,
SARJAPURA, ANEKAL TALUK
BENGALURU DISTRICT

2. SRI K V KODANADA RAMASWAMY REDDY
AGED ABOUT 67 YEARS,
S/O K R VENKATA REDDY
NO. 90/5-1, 3RD CROSS,
24TH MAIN, BTM II STAGE
BENGALURU - 560 076.
                           2


3. SMT. RATHNAMMA
AGED ABOUT 59 YEARS,
W/O SRI K V KODANADA RAMASWAMY REDDY
NO. 90/5-1, 3RD CROSS, 24TH MAIN
BTM II STAGE, BENGALURU - 560 076.

4. SRI VENKATESH BABU
AGED ABOUT 35 YEARS,
S/O K V KODANADA RAMASWAMY REDDY,
NO. 90/5, 3RD CROSS, 24TH MAIN, BTM II STAGE
BENGALURU - 560 076.

5. SMT. ANANYA
AGED ABOUT 33 YEARS,
D/O SRI K V KODANADA RAMASWAMY REDDY
NO. 90/5-1, 3RD CROSS, 24TH MAIN,
BTM II STAGE, BENGALURU - 560 076.

                                         ...RESPONDENTS

(BY SRI.SURESH KUMAR S, ADVOCATE FOR R1;
SRI.R.KARTHIK, ADVOCATE FOR SRI.VASU, ADVOCATE
FOR R2-5)

     THIS PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED    ORDERS     DATED   04.03.2020     PASSED    BY
HONOURABLE XI ADDITIONAL CITY CIVIL AND SESSION
JUDGE   (CCH-8),   BANGALORE     CITY,   IN   EXECUTION
NO.2673/17, ALLOW THE APPLICATION.


     THIS   PETITION    HAVING    BEEN      HEARD      AND
RESERVED FOR ORDERS ON 11.07.2022, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
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                             ORDER

The captioned writ petition is filed feeling

aggrieved by the order passed by the Executing Court

in dismissing the Execution petition No.2673/2017 by

recording a finding that petitioner has not proved the

alleged disobedience by the respondents-judgment

debtors.

2. The facts leading to the case are as under:

The present petitioner/decree holder purchased

the suit schedule property measuring 30 x 36 ft. out

of the larger extent of 66 x 70 ft. under registered

sale deed dated 13.12.1996. The first

respondent/judgment debtor No.1 started meddling

and interfering with the petitioner's peaceful

possession under the garb that he has purchased the

entire extent of 66 x 70 ft. under registered sale deed

dated 28.4.1997. Therefore, petitioner was compelled

to file suit for injunction simplicitor in

O.S.No.4319/1997 seeking perpetual against the first

respondent, while the first respondent also filed an

injunction suit in O.S.No.3495/1997. By common

judgment and decree dated 28.09.2007, the Court

decreed the suit filed by the petitioner herein and by

first respondent.

3. The case of the petitioner is that for ten

years there was no interference and the petitioner

and his family lived peacefully in the schedule 'A'

property till 28.4.2017. It is also contended by the

petitioner that he had to move to a rented house as

the own house in suit 'A' schedule property had

partially collapsed on account of rains. When the

petitioner went to suit 'A' schedule property to carry

out repairs during second week of May 2017, the

second judgment debtor started interfering and

stopped him from carrying out any work on the

strength of the alleged family partition between the

respondents covering the entire extent measuring 66

x 70 ft. The second respondent has instituted a suit in

O.S.No.3395/2017. The subject matter of the suit is

the entire extent measuring 66 x 70 ft. respondent

No.2 obtained an exparte interim order. This

compelled the petitioner to file the present execution

petition seeking attachment and sale of schedule 'B'

immovable property of the judgment debtors and also

sought for a direction restraining the judgment

debtors from interfering with the decree holder from

putting up compound/fence to the schedule 'A'

property and also repairing walls of the old house etc.

In the pending execution petition, the petitioner also

sought for detention of all judgment debtors in civil

prison. The executing Court has proceeded to dismiss

the petition. While dismissing the petition, the

executing Court was of the view that the decree

holder has not furnished any details and there are no

specific pleadings as to when the judgment debtors

started construction and encroached 3ft. space on the

northern side of the schedule 'B' property. The

executing Court was of the view that except bald

allegations of P.W.1, no materials are placed

indicating disobedience.

4. Learned counsel for the petitioner

reiterating the grounds urged in the writ petition

would vehemently argue and contend that the fact

that the second respondent has instituted a fresh suit

asserting right and title over the entire extent

measuring 66 x 70 ft. clearly establishes the

disobedience at the hands of the judgment debtors.

The learned counsel would further contend that the

averments made in O.S.No.3395/2017 are judicial

admissions and the same constitutes waiver of proof

and therefore, no further enquiry is required in the

present case on hand. The stand taken by the

judgment debtors in the present execution petition

and in O.S.No.3395/2017 clearly establishes the

violation of perpetual injunction granted in

O.S.No.4319/1997. Referring to the averments made

in the objection statement before the executing Court

wherein respondent No.2 is falsely contending that the

decree passed in O.S.No.4319/1997 is not binding on

them is a clear demonstration of disobedience of

decree.

5. The learned counsel would also take this

Court to the schedule referred in the suit filed by the

second respondent in O.S.No.3395/2017. The learned

counsel would further refer to the affidavits filed in the

present suit pending in O.S.No.3395/2017. The

learned counsel for the petitioner would also point out

that the executing Court has not properly appreciated

the evidence of decree holder who is examined as

P.W.1 and has unnecessarily given more importance

to some insignificant, irrelevant and minor

discrepancies in the oral evidence of P.W.1. No

adverse inference is drawn against the judgment

debtors who have deliberately not entered into the

witness box.

6. To buttress his arguments, he has placed

reliance on the judgment rendered by the Apex Court

in Jai Dayal and others .vs Krishn Lal Garg and

another1. Placing reliance on Para 6 of the judgment,

he would contend that Apex Court in the above cited

judgment has held that if there is obstruction

pursuant to the decree, in whatever form a judgment

debtor obstructs, it is liable to remove the violation

and the consequences have to follow under the

provisions of Order XXI Rule 32 of CPC.

AIR 1997 SC 3765

7. Referring to the judgment rendered by the

Madras High Court in the case of V.S. Alwar

Ayyangar .vs. Guruswamy Thevar2, the learned

counsel for the petitioner would contend that there is

not only a mere attempt in denying the claim of the

decree holder but on the contrary second respondent-

judgment debtor has taken a positive stand that he is

in exclusive possession of entire extent and therefore,

he would contend that this is a clear case of violation

of perpetual injunction granted in O.S.No.4319/1997.

He would conclude his arguments by placing reliance

on judgment rendered by the Kerala High Court in the

case of Rajappan and others .vs. Sankaran

Sudhakaran3. Referring to the above said judgment,

he would take this Court to Section 146 of CPC. and

contend that second respondent cannot contend that

he is not bound to obey the injunction granted against

AIR 1981 Madras 354

AIR 1997 Kerala 315

his brother i.e. first respondent who was party to the

earlier proceedings. He would submit that such a plea

cannot be entertained as the same would run against

the principle of public policy embodied in Sections 11

and 146 of CPC. and Section 52 of the Transfer of

Property Act.

8. Per contra, learned counsel appearing for

respondents 2 to 5 in his opening remarks itself would

contend that the present petitioner-decree holder is

not at all in possession. He would contend that the

perpetual injunction granted in O.S.No.4319/1997

would not bind the second respondent as he is not

party to the earlier suit. He would further contend

that second respondent has acquired right

independently in a family partition and therefore, he

has filed a suit for declaration and injunction in

O.S.No.3395/2017 and therefore, till the suit pending

in O.S.3395/2017 is adjudicated, the relief sought in

execution petition cannot be entertained. On these

set of grounds, he would contend that the order under

challenge is in accordance with law and would not

warrant interference at the hands of this Court.

9. Heard learned counsel for the petitioner

and learned counsel for respondents. Perused the

order under challenge. I have also given my anxious

consideration to the materials placed on record by the

decree holder.

10. Before I advert to the present facts and

circumstances of the case, it would be necessary for

this Court to cull out relevant facts which would have

bearing on the present controversy between the

parties.

11. The operative portion of the common

judgment and decree passed in O.S.Nos.3495/1997

and 4319/1997 is absolutely necessary for effective

adjudication and the same is culled out which reads as

under:

"The suit in O.S.3495/1997 is decreed in part as follows:

The defendant, his agents, servants or anybody on his behalf are hereby restrained from interfering with the peaceful possession and enjoyment of the suit schedule property exclusive of the schedule property in possession of the defendant, which is the subject matter of the suit in O.S.4319/1997.

     The suit     in   O.S.4319/1997     is   hereby
    decreed.

The defendants their agents, servants or anybody on their behalf are hereby restrained from interfering with the peaceful possession and enjoyment of the suit schedule property therein.

In both the events, there is not order as to costs.

Keep the copy of the judgment in O.S No.4319/1997.

Draw up decree accordingly."

12. If the operative portion is read, it is clearly

evident that the suit filed by the decree holder in

O.S.No.4319/1997 is decreed granting injunction in

respect of suit schedule property measuring 30 x 36

ft. The suit filed by first respondent in

O.S.No.3495/1997 is also decreed. But the operative

portion clearly indicates that first respondent is

granted injunction excluding the property purchased

by the present decree holder.

13. Now, the schedule referred in the partition

deed dated 13.10.2009 between respondents would

be relevant for this Court, which is culled out as

under:

"9. ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ ªÀÄrªÁ¼À ¸ÀªÉð £ÀA.90/5-1 gÀ°ègÀvÀPÀÌ PÁ¥ÉÆðgÉõÀ£ï £ÀA.1gÀ r«µÀ£ï £ÀA.35 gÀ°è 50 ZÀzÀÄgÀ ªÀÄ£É ªÀÄvÀÄÛ SÁ° eÁUÀPÉÌ ZÀPÀÄ̧A¢:-

       ¥ÀƪÀðPÉÌ       :          ªÀiÁ°ÃPÀgÀ d«ÄãÀÄ
       ¥À²ÑªÀÄPÉÌ      :          gÀ¸ÉÛ
       GvÀÛgÀPÉÌ       :          gÀ¸ÉÛ
       zÀQëtPÉÌ        :          gÀ¸ÉÛ ºÁUÀÆ EzÉà £ÀA§j£À ¥ÉÊQ G½PÉ
                                  dǀ̣ˀ

F ªÀÄzsÉå ¥ÀƪÀð-¥À²ÑªÀÄ: 66 CrUÀ¼À GvÀÛgÀ-zÀQët:70 CrUÀ¼ÀÄ MlÄÖ 3540 ZÀzÀgÀ CrUÀ¼ÀÄ .

F ªÀÄzsÉå EgÀĪÀ ¸ÀévÀÄÛ MAzÀÄ.

(emphasis laid by me)"

14. In the schedule, the judgment debtors

have deliberately shown the entire extent as 3540

sq.ft. To be more specific, the measurement shown in

the schedule is 66 ft. East-West and 70 ft. North-

South, but the extent is shown as 3540, though the

total extent is 4620 sq.ft. Therefore, the judgment

debtors having shown the extent as 3540, however,

have referred the entire extent of suit schedule

property which is clearly evident from the culled out

schedule supra.

15. Now let me examine the stand taken by

second respondent in a fresh suit which is filed by him

on the strength of the family partition. Para 6 of the

plaint filed in O.S.No.3395/2017 and the schedule

annexed to the plaint would clearly demonstrate the

stand taken by second respondent. Now these

averments have to be tested and the executing Court

was required to examine whether these averments

clearly indicate and demonstrate the violation of

perpetual injunction granted in O.S.No.4319/1997.

Para 6 of the plaint and schedule are culled out as

under:

"6. The plaintiff further submit that when the things stands thus, the defendant being the co-brother, Retd. Vidhana Soudha Employee, wherein who have no manner of right, title, over the suit schedule property, are making attemps to trespass and dig the trench to lay foundation and to construct the permanent building on the suit schedule property in the vacant site though the plaintiff resisted the act of the defendatn. The plaintiff also approached BBMP and lodged complaint before Asst. Executive Engineer BBMP, BTM Layout, Bangalore not to sanction the plan or permission for construction in the said schedule property is produced as document No.8.

SCHEDULE

All the piece and parcel of property bearing No.90/5-1, New Corporation No.1, situated in Madiwala Village 35/58. Now at No.90/5- 1, 3rd Cross, 24th Main, 2nd Stage, BTM Laoyut, Bangalore City measuring East to West 66' feet, and North to South 70 feet and bounded on the:

        East by    :    Private Property
        West by    :    Road,
        North by   :    Road,
        South by   :    Road."

The Executing Court while dismissing the execution

petition has come to the conclusion that if the

petitioner has the benefit of perpetual injunction,

question of again granting injunction does not arise.

This finding is palpably erroneous. Petitioner is

alleging that though he has the benefit of a decree in

O.S.No.4319/1997, respondents have violated the

same and have therefore disobeyed the decree of

injunction.

16. I have gone through the entire order under

challenge. This Court would find that the executing

Court has not properly adverted to the facts of the

case. The pleadings and the defence set up by the

respondents-judgment debtors are part of records and

are culled by this Court supra.

If petitioner has the benefit of decree for

perpetual injunction, the respondents-judgment

debtors cannot assert right, title and possession over

the entire extent i.e. property measuring 66 x 70 ft.

Therefore, the terms of compromise arrived at which

is culled out supra ought to have been examined by

the executing Court. The executing Court was also

required to examine as to how the second respondent

on the strength of family partition can maintain a

fresh suit in O.S.No.3395/2017. The averments made

at para 6 of the plaint coupled with the schedule to

the plaint clearly demonstrate that respondents are

still asserting title and also possession in respect of

entire extent. This stand taken by second respondent

in all probability amounts to violation of judgment and

decree passed in O.S.3495 and 4319/1997. the

operative portion clearly indicates that the present

respondents-judgment debtors are owners excluding

portion owned by the present petitioner measuring 30

x 36 ft. This Court has culled out the extent

mentioned in the partition deed. Though, the

respondents claim that the property measures 3540

but however, in the schedule the entire extent is

included i.e. the property measuring East-West 66 ft.

and North-South 70 ft. There is absolutely no

discussion by the Executing Court and the stand taken

by respondents-judgment debtors is also not taken

into consideration while deciding the Execution

petition.

17. The decree passed in O.S.3495 c/w 4319

has attained finality and therefore, the respondents-

judgment debtors are required to obey the decree. If

there is any obstruction in any form and if such

obstruction is complained by filing the execution

petition, the executing Court is required to remove

such violation and thereafter the consequences have

to follow under the provisions of Order XXI Rule 32 of

CPC. The executing Court was required to examine all

these materials and thereafter notify the respondents-

judgment debtors to obey the perpetual injunction

granted in O.S.No.4319/1997.

18. If the respondents-decree holders have

willfully failed to obey the decree for injunction, the

executing Court was required to enforce the decree by

ordering for detention of judgment debtors in civil

prison. The second respondent has claimed that the

suit schedule property is allotted to his share in a

family partition. What can be gathered from the

materials on record is that the first respondent who is

the brother of second respondent and who has

suffered a decree in OS.4319/1997 has conveniently

alloted the suit schedule property in favour of second

respondent including the property owned by the present

petitioner herein in a family partition. Therefore, second

respondent cannot be permitted to take a stand that

he is not a party to the earlier decree. If such a

contention is encouraged, there will be no sanctity to

the orders and decrees passed by the competent civil

Courts. Respect for law is one of the cardinal

principles for effective operation of the Constitution

and law. The faith of the people is the source and

succour to invigorate justice intertwined with efficacy

of law. The principles of justice is ingrained in our

conscience and the same has now taken deep roots in

our ethos of adjudication; be it judicial or quasi

judicial. Therefore, it is in this background if the

Courts do not come to the rescue of honest litigants

who have the benefit of decree, the faith of the people

in the efficacy of judicial process would be

disillusioned. The parties cannot be permitted to

abuse its process and allowed to go scot-free.

Therefore, it is the primary duty and responsibility of

the Executing Court to take appropriate action where

disobedience is complained and take stringent actions

against an erring litigant so as to restore the

confidence of the litigant public, in the purity of

fountain of justice. Therefore, I need not cite any

authority for proposition that it is of high importance

that orders/decrees of the Court are obeyed.

19. It is in this background, this Court is of the

view that the order under challenge is not sustainable

and the same is liable to be quashed and the matter

requires reconsideration at the hands of the Executing

Court.

20. For the foregoing reasons, I pass the

following:

ORDER

The writ petition is allowed. The impugned order

dated 4.3.2020 passed in Ex.No.2673/2017 is set

aside.

The matter is remitted back to the executing

Court for fresh consideration.

Sd/-

JUDGE

*alb/-