Rajappa vs Shekarappa H G
2022 Latest Caselaw 3925 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF MARCH, 2022

                           BEFORE

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

       WRIT PETITION No.17380 OF 2017 (GM-CPC)
                        c/w.
       WRIT PETITION No.37474 OF 2017 (GM-CPC)


WRIT PETITION No.17380 OF 2017 (GM-CPC)

BETWEEN:

Rajappa
S/o. Shekarappa H.G.
Age: 45 yrs. Agriculturist,
R/o. Harmagatta Village,
Holaluru Hobli,
Shivamogga Taluk. 577 201.
                                           ..    Petitioner
(By Smt. Saritha Kulkarni, Advocate)

AND:

Shekarappa H.G.
S/o. Hanumanthappa,
Adopted son of Rudramma & Basappa
R/o. Harmagatta Village,
Holaluru Hobli,
Shivamogga Taluk - 577 201.
                                                .. Respondent

(By Sri.P.N. Harish, Advocate, for caveator/Respondent)

                             ****
      This Writ Petition is filed under Article 227 of the
Constitution of India, praying to issue a writ of certiorari by
                                               W.P.No.17380/2017
                                         c/w. W.P.No.37474/2017
                                 2


setting aside the order passed by the Prl.Civil judge and JMFC,
Shivamogga dated 11-04-2017 on I.A.No.1 in Ex.P.No.66/2016
vide Annexure D. etc.

WRIT PETITION No.37474 OF 2017 (GM-CPC)

BETWEEN:

Shekarappa H.G.
S/o. Hanumanthappa,
Aged 78 years,
R/o. Haramagatta,
Holalur Hobli,
Shivamogga Taluk & District - 577 201.
                                                .. Petitioner
(By Sri.P.N. Harish, Advocate)

AND:

Rajappa H.G.
S/o. Shekarappa H.G.
Aged about 46 years,
R/o. Haramagatta,
Holalur Hobli,
Shivamogga Taluk & District - 577 201.
                                           ..    Respondent
(By Smt. Saritha Kulkarni, Advocate)

                              ****
       This Writ Petition is filed under Article 227 of the
Constitution of India, praying to issue a writ in the nature of
certiorari and quash the order dated 02-08-2017 passed in
Ex.No.66/2016 by the IV Additional Civil Judge & JMFC,
Shivamogga on I.A.No.3 as per Annexure F and thereby dismiss
the I.A.No.3 filed in Ex.No.66/2016 on the file of IV Additional
Civil Judge & JMFC, Shivamogga produced as per Annexure D,
etc.

      These Writ Petitions coming on for Preliminary Hearing in
'B' Group, through Physical Hearing/Video Conferencing Hearing,
this day, the Court made the following:
                                               W.P.No.17380/2017
                                         c/w. W.P.No.37474/2017
                               3


                        ORDER

Both these writ petitions have arisen from Execution

Case.66/2016, pending before the learned IV Additional

Civil Judge and JMFC at Shimoga, (hereinafter for brevity

referred to as "the Executing Court").

2. It is not in dispute that the respondent in Writ

Petition No.17380/2017 - Sri. Shekarappa H.G. had

instituted a suit against his son - Sri. Rajappa, who is the

petitioner in the same writ petition, in O.S.No.704/2012 for

the relief of permanent injunction with respect to an

immovable property. The Executing Court allowed the suit

of the plaintiff against which judgment and decree, the son

- Sri. Rajappa preferred a Regular Appeal in

R.A.No.26/2015. The same came to be dismissed. Against

the same, the said Rajappa preferred a Regular Second

Appeal in R.S.A.No.760/2016 before the Court, which

according to both sides, is pending till date. It is not in

dispute that in the said R.S.A., this Court has passed an W.P.No.17380/2017 c/w. W.P.No.37474/2017

interim order, directing both side to maintain status-quo, on

31-08-2016 about which a reference is made in Annexure D

in Writ Petition No.37474/2017 and the said alleged fact of

interim order of status quo passed on 31-08-2016 in

R.S.A.No.760/2016, has thus remained an admitted fact.

3. Subsequently, at the instance of the father (decree

holder), an application came to be filed in Execution Case

No.66/2016, which was filed by him as I.A.No.1 under

Order XXI, Rule 32 of the Code of Civil Procedure, 1908,

(hereinafter for brevity referred to as "the CPC") for police

help. The said interim application came to be allowed by

the Executing Court, by its order dated 11-04-2017 wherein

the Sub-Inspector of Police, Rural Police Station,

Shivamogga, was directed to restrain the judgment debtor

and his men from interfering with the possession of the

decree holder over the petition schedule property.

Challenging the said order (Annexure D in

W.P.No.17380/2017) of allowing I.A.No.1 filed under Order W.P.No.17380/2017 c/w. W.P.No.37474/2017

XXI, Rule 32 of the CPC, the said son - Sri. Rajappa has

filed Writ Petition No.17380/2017.

4. Subsequent to the said order dated 11-04-2017,

passed by the Executing Court, it appears that some more

development took place in the matter where the son -

Rajappa filed I.A.No.3 under Section 151 of the CPC, in the

Executing Court in Execution Case No.66/2016, seeking to

recall the direction issued (Annexure D in Writ Petition

No.37474/2017) to the Rural Police, Shivamogga, wherein,

a direction was given to them to extend Police help to the

decree holder. The said I.A.No.3 was allowed by the order

of the Executing Court dated 02-08-2017 and it recalled its

earlier order dated 11-04-2017. Challenging the said order

which is at Annexure F in Writ Petition No.37474/2017, the

father - Shekarappa (decree holder) has filed the said Writ

Petition No.37474/2017.

5. Learned counsel for the decree holder (father) in

his argument submitted that, in view of the fact that the W.P.No.17380/2017 c/w. W.P.No.37474/2017

order on the interim application dated 11-04-2017 passed

by the Executing Court in Execution Case No.66/2016 has

been recalled, the said Writ Petition No.17380/2017

becomes infructuous.

6. Per contra, learned counsel for the judgment

debtor who is for the respondent in Writ Petition

No.37474/2017 submitted that, the very granting of

direction to the Police was illegal, since there was an interim

order of status-quo passed in R.S.A.No.760/2016 which was

to the notice of the Executing Court. She further submitted

that even after noticing that such an interim order of

status-quo was passed in R.S.A.No.760/2016, the Executing

Court, without there being any evidence before it with

respect to the alleged trespass over the property and also

no evidence being led by either of the parties, has

presumed certain aspects on its own and proceeded to pass

the impugned order dated 11-04-2017.

W.P.No.17380/2017 c/w. W.P.No.37474/2017

7. Learned counsel for the judgment debtor also

submitted that the very same Executing Court has

permitted the judgment debtor to harvest the crop raised in

the disputed property and had directed him to deposit the

sale value of the harvested crop in the Court. As such

also, the direction issued to the Rural Police to restrain the

very same judgment debtor from entering into the field is

uncalled for.

8. From the above, it is clear that, as on 11-04-2017,

when the first order on I.A.No.1 filed under Order XXI, Rule

32 of the CPC, came to be passed by the Execution Court in

Execution Case No.66/2016, there was already an interim

order passed by this Court in R.S.A.No.760/2016, directing

both parties to maintain status-quo. This is evident in the

very impugned order dated 11-04-2017, wherein the

Executing Court itself has noticed the same. However, it

proceeded to observe on its own that despite such an order,

the judgment debtor has trespassed over the schedule

property as could be seen in the copy of the complaint and W.P.No.17380/2017 c/w. W.P.No.37474/2017

FIR registered against the judgment debtor and thus

proceeded to pass the impugned order, allowing the

interlocutory application - I.A.No.1.

The said act of the Executing Court was uncalled for,

in the light of there being in force the interim order to

maintain status quo by this Court. When there is an interim

order to maintain status-quo, the Executing Court ought to

have ascertained after noticing as to in whose possession,

the suit schedule property was, when the said order of

status-quo came to be passed. Without doing the said

exercise, it presumed on its own that the decree holder

before it was in possession of the property and that the

judgment debtor was interfering in his possession violating

the interim order of status-quo. In such a circumstance,

instead of merely acting upon the alleged complaint copy

and FIR said to have been lodged at the instance of the

decree holder, the Executing Court also ought to have

considered the counter complaint alleged to have been filed

by the judgment debtor and the alleged order, if any, of W.P.No.17380/2017 c/w. W.P.No.37474/2017

permitting the judgment debtor to reap the crop alleged to

have been raised by him in the suit schedule property.

Since all of them were involving certain disputed facts, the

Executing Court ought not to have solely relied upon a mere

complaint and FIR alleged to have been placed before it by

the applicant before it along with I.A.No.1 and proceeded to

pass the interim order, ignoring the sanctity of the order of

status-quo passed by this Court in R.S.A.No.760/2016.

Thus, the very order dated 11-04-2017 being an

unjustifiable order, deserves to be quashed. Consequently,

the decree holder's writ petition which has challenged the

order dated 02-08-2017 of the very same Executing Court

which had recalled its earlier order dated 11-04-2017 does

not deserve to be allowed. Thus, neither of the petitioners

in these two writ petitions succeed in their attempt made

through these writ petitions, but the order of status-quo

said to have been passed in R.S.A.No.760/2016 governs the

field. However, if there is any violation of such an order of

status-quo by either of the parties, it is for them to agitate W.P.No.17380/2017 c/w. W.P.No.37474/2017

before the Executing Court or a competent forum in

accordance with law and to seek remedy.

Accordingly, the present writ petitions stand disposed

of.

Sd/-

JUDGE

BMV*