Karnataka High Court
Lingamma vs H. J. Ramegowda on 30 June, 2022
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
CIVIL REVISION PETITION NO.112 OF 2020
BETWEEN:
LINGAMMA
W/O. LATE SANNEGOWDA
SINCE DEAD BY HER LR
YOGARAJU
S/O. LATE SANNEGOWDA
AGED ABOUT 59 YEARS
R/AT: DOOR NO.KT.16/A
OPP. B.Ed., COLLEGE, KYATHAMGERE LAYOUT
BANNUR ROAD, CHAMUNDESHWARI NAGARA
MANDYA CITY, MANDYA DISTRICT - 571 401.
. ...PETITIONER
(BY SRI.D.S.HOSMATH, ADVOCATE)
AND
1. H.J.RAMEGOWDA
S/O. JOGIGOWDA
AGED ABOUT 68 YEARS
R/AT: MANJUNATHA PROVISION STORES
NO.6/80, 10TH CROSS, VIJAYASHREEPURAM
MYSURU CITY, MYSURU DISTRICT - 570 006.
2. SMT.R.BHAGYALAKSHMI
W/O. S.L.RAMESHBABU
AGED ABOUT 44 YEARS
R/AT:C/O. C.RAMALINGAIAH
6TH CROSS, CHAMUNDESHWARI NAGARA
MANDYA CITY, MANDYA DISTRICT - 571 401.
...RESPONDENTS
(BY SRI.P.NATARAJU, ADVOCATE FOR R2;
R1 - SERVED)
2
THIS CRP IS FILED UNDER SECTION 115 OF CODE OF
CIVIL PROCEDURE 1908.
THIS CRP COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Sri.D.S.Hosmath, learned counsel for petitioner has
appeared through video conferencing.
Sri.P.Nataraju, learned counsel for respondent No.2,
has appeared in person.
2. The brief facts of the case are stated as under:
It is stated that the mother of the petitioner
Smt.Lingamma had filed a suit in O.S.No.81/1980 in the
Court of Munsiff, Mandya for declaration and permanent
injunction of the property in question, that is identified as
PLIOE. The suit came to be dismissed. As against the
dismissal of the suit, Smt. Lingamma had filed an appeal
in R.A.No.48/1991 in the Court of Sr.Civil Judge, Mandya
which came to be dismissed. Challenging both the decrees
Smt.Lingamma had filed a Second Appeal in this Court in
RSA No.719/1995. This Court allowed the appeal on
11.08.1989 decreeing the suit declaring the title of
Smt.Lingamma.
The second respondent herein thereafter purchased
the property from first respondent adjoining the property
declared on the southern side. In the meantime, Smt.
Lingamma died and the petitioner has succeeded to the
estate. It is said that in the meantime, the petitioner has
put up construction (that is a house) and is residing with
family. On the southern side, the petitioner has
constructed compound wall. It is contended that the
second respondent after purchasing the property has
started damaging the compound wall. Hence the petitioner
was constrained to file execution petition in
Ex.No.182/2013 wherein the petitioner had prayed for
appointment of Commissioner to assess the damage etc.,
to which the second respondent filed objections
contending that petitioner has to prove that he is the LR
and the decree was only declaring title and no injunction
order was granted hence it was contended that the
Execution Petition is not maintainable.
The Executing Court after hearing, has dismissed
the petition as not maintainable by an order
dated:18.08.2018.
It is this order which is challenged by the petitioner
on various grounds as set out in the Memorandum of Civil
Revision Petition.
3. Learned counsel for petitioner and respondent
No.2 have urged several contentions.
4. Heard the contentions urged on behalf of
petitioner & respondent No.2 and perused the petition
papers with care.
5. The short question is whether the Executing
Court is justified in dismissing the petition?
It is not in dispute that the Trial Court dismissed the
suit and the same was confirmed by First Appellate Court.
However in the second appeal, this Court declared that
Smt.Lingamma is the owner of the suit property. It is the
contention of the JDR that he purchased the property
which is adjacent to the suit schedule property.
A good deal of argument is canvassed on injunction.
Suffice it to note that in the suit, the declaration of title is
granted and there is no order in so far as permanent
injunction. It is relevant to note that the Judgment Debtor
was not a party to the suit. The Executing Court in
extenso referred to the material on record and concluded
that the Execution Petition is not maintainable. In my
considered view, the Executing Court is justified in
concluding so.
This Court find no grounds to exercise power under
Section 115 of the Code. Resultantly, the Civil Revision
Petition is dismissed.
Sd/-
JUDGE
GVP
