Smt.Saphia Begum vs Mrs.Theresa Rego
2022 Latest Caselaw 4103 Kant

                                      C.R.P.No.63/2021

                             1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF MARCH 2022

                        BEFORE

        THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

        CIVIL REVISION PETITION NO.63/2021

BETWEEN:

SMT.SAPHIA BEGUM
W/O JAFER SAHEB
AGED ABOUT 64 YEARS
R/AT GURUKAMBLA HOUSE
P.O.KINNIKAMBLA - 574 151
MANGALURU TALUK (DK)                    ...PETITIONER

(BY SRI M.SUDHAKAR PAI, ADVOCATE)

AND:

1.     MRS.THERESA REGO
       AGED ABOUT 78 YEARS

2.     MR.CYRIL REGO
       AGED ABOUT 58 YEARS

3.     MR.VALERIAN REGO
       AGED ABOUT 56 YEARS

4.     MRS.LOUIZA REGO
       AGED ABOUT 53 YEARS

5.     MRS.LILLY REGO
       AGED ABOUT 51 YEARS

6.     MRS.FLORIN REGO
       AGED ABOUT 49 YEARS

7.     MR.ROQUE REGO
       AGED ABOUT 47 YEARS

8.     MR.MAXIM REGO
       AGED ABOUT 45 YEARS
                                           C.R.P.No.63/2021

                            2


9.    MRS.VEEDA REGO
      AGED ABOUT 43 YEARS

10.   MR.RAJESH REGO
      AGED ABOUT 39 YEARS

11.   MR.DEEPAK REGO
      AGED ABOUT 37 YEARS

      R1 WIFE & R2 TO R11 ARE
      CHILDREN OF LATE JOSEPH REGO

      ALL ARE R/AT SURALPADY
      BADAGULIPADY VILLAGE
      P.O.BADAGULIPADY - 574 144
      MANGALURU TALUK (D.K.)

      R1, R2, R4 TO R11 ARE
      REPTD. BY THEIR G.P.A. HOLDER
      MR.VELERIAN REGO R3                 ...RESPONDENTS

(BY SRI SUBRAMANYA BHAT.P, ADVOCATE)

     THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF CPC PRAYING TO SET ASIDE THE ORDER
DATED 11.02.2021 PASSED BY THE PRINCIPAL CIVIL JUDGE,
MANGALURU, D.K. IN EX. CASE NO.146/2016

     THIS CIVIL REVISION PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT THROUGH VIDEO CONFERENCE
MADE THE FOLLOWING:

                         ORDER

With consent of both side, the main matter itself is

taken up for disposal.

2. Aggrieved by the order of the Principal Civil

Judge, Mangalore, Dakshina Kannada in Execution Petition

No.146/2016 to remove the obstruction and blockade C.R.P.No.63/2021

made at the entrance of the pathway for free use of the

decree holders, the judgment debtor has preferred the

above petition.

3. The admitted facts of the case are as follows:

The respondents are the children of the plaintiff in

O.S.No.295/1986. The plaintiff filed O.S.No.295/1986

against the petitioner and others before the Principal Civil

Judge (Junior Division), Mangalore, Dakshina Kannada

seeking declaration of their easementary right of pathway

and for permanent injunction.

4. The respondents are the owners of the land

bearing Survey No.57/7 situated at Badaga Ulipady village,

Mangalore Taluk. They claim that they have right to pass

through the land bearing Survey Nos.57/5 and 57/6

belonging to the petitioner to reach their land in Survey

No.57/7.

5. The trial Court by judgment and decree dated

18.03.2002 partly decreed the suit. The trial Court

rejected the prayer for declaration and granted only

decree for permanent injunction.

C.R.P.No.63/2021

6. Aggrieved by that the petitioner filed

R.A.No.156/2002 and the respondents filed

R.A.No.371/2002 before the I Additional Civil Judge

(Senior Division), Mangalore. The First Appellate Court by

the judgment and order dated 21.11.2007 dismissed the

appeal of the petitioner and allowed the appeal of the

respondents. The First Appellate Court confirmed the order

of permanent injunction and granted the decree of

declaration. Thereby entire suit was decreed.

7. The petitioner challenged the said judgment

and decree before this Court in R.S.A.No.829/2008 and

R.S.A.No.828/2008. This Court by the order dated

20.01.2009 dismissed those appeals at the admission

stage only.

8. On 19.07.2016, the respondents filed

Execution Petition No.146/2016 claiming that the

petitioner by putting up some structures in the land

obstructing the pathway, therefore prayed for enforcement

of the decree of permanent injunction. The petitioner

opposed the said petition.

C.R.P.No.63/2021

9. The trial Court on hearing both parties, by the

impugned order dated 11.02.2021 overruled the objections

and directed the petitioner to remove the obstruction and

blockade made at the entrance of the pathway for free use

of the said pathway.

10. Sri M.Sudhakar Pai, learned Counsel for the

petitioner seeks to assail the impugned order on the

following grounds:

(i) As per the Commissioner's report submitted in

the suit, the pathway is situated in the land bearing

Survey No.90/6 and not in Survey Nos.57/5 and 57/6;

(ii) The execution petition was barred by time; &

(iii) Instead of filing the suit for mandatory

injunction, the execution petition is filed. Therefore the

same is not maintainable.

11. Sri Subramanya Bhat.P, learned Counsel for

the respondents seeks to justify the impugned order on

the following grounds:

(i) The issue in the case was about existence of

pathway in Survey Nos.57/5 and 57/6. This Court C.R.P.No.63/2021

considering that confirmed the decree of the trial Court

and the First Appellant Court, thereby the Commissioner's

report loses its significance;

(ii) The decree being one for permanent

injunction, proviso to Article 136 in the Schedule of the

Limitation Act, 1963 provides for filing such execution

petition at any time:

(iii) The structure in question was put up recently

and that is stated in the affidavit of the respondents.

12. Regarding the findings in the Commissioner's

report, reading of the judgment and decree shows that the

respondents claimed that their land as Survey No.57/7,

they have right of way to reach their land through the

lands in Survey Nos.57/5 and 57/6 belonging to the

petitioner. The said contention is accepted and the decree

is passed by the First Appellate Court.

13. This Court in page 5 of the judgment in

R.S.A.No.829/2008 and R.S.A.No.828/2008 has

specifically extracted the issues. In para 6 of the judgment C.R.P.No.63/2021

this Court also culled out the facts of the case. It is also

observed that defendant No.2 was in possession Survey

No.90/6 and the petitioner was in possession in Survey

Nos.57/5 and 57/6 and ultimately upheld the decree.

Under the circumstances, the decree passed by the Courts

below prevail over the Commissioner's report.

14. So far as limitation, the decree was for

declaration and permanent injunction. What is sought to

be executed is decree for permanent injunction. Proviso to

Article 136 of the Schedule of the Limitation Act applies to

an application for enforcement or execution of a decree

granting perpetual injunction. That says such application

shall not be subjected to any period of limitation.

15. Article 135 of the Schedule to the Limitation

Act applies only to the decree for mandatory injunction.

The contention that Article 135 of the Limitation Act

applies to the facts of this case is misconception. Therefore

there is no merit in the contention that the execution

petition was time barred. Further the petitioner did not

place any material to show that such structure situated all C.R.P.No.63/2021

along before filing of the Execution Petition. Under the

circumstances, this Court does not find any merit in the

petition and therefore the petition is dismissed.

In view of dismissal of the petition, I.A.No.1/2022

does not survive for consideration and stood disposed of

accordingly.

Sd/-

JUDGE

KSR