Smt Usha Rani vs H Jagannath
2022 Latest Caselaw 4704 Kant

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 14TH DAY OF MARCH, 2022

                         BEFORE

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

     WRIT PETITION NO.13103 OF 2020 (GM-CPC)

BETWEEN

    1. SMT. USHA RANI
       W/O RAMAKRISHNA
       AGED ABOUT 56 YEARS
       R/AT NO.440, 19TH C MAIN
       I N BLOCK, RAJAJINAGAR
       BENGALURU-560 010.

    2. K SURENDRA PRABHU
       S/O LATE K M KRISHNAPPA
       AGED ABOUT 58 YEARS
       R/AT ESIC QUARTERS H NO.27/4
       NANDINI LAYOUT
       BENGALURU-560 096.

    3. RAVINDRA PRABHU
       S/O LATE K M KRISHNAPPA
       AGED ABOUT 50 YEARS
       R/AT NO.2391, 10TH MAIN
       E BLOCK II STAGE
       RAJAJINAGAR
       BENGALURU-560 010.

    4. K SHAILENDRA PRABHU
       S/O LATE K M KRISHNAPPA
       AGED ABOUT 45 YEARS
       R/AT NO.2391, 10TH MAIN
       E BLOCK II STAGE
                                  2




         RAJAJINAGAR
         BENGALURU-560 010.
                                                   ...PETITIONERS
(BY SRI T SHESHAGIRI RAO, ADVOCATE)

AND

H JAGANNATH
S/O HANUMAIAH
AGED ABOUT 68 YEARS
NO.320, 19TH E MAIN
1 N BLOCK, RAJAJINAGAR
BENGALURU-560 010.
                                                   ....RESPONDENT
(BY SRI SHARATH S. GOWDA, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH AND
SET ASIDE THE IMPUGNED ORDER DATED 12TH NOVEMBER,
2020 PASSED BY THE ADDITIONAL CITY CIVIL JUDGE IN
EX.P.NO.25233 OF 2018 VIDE ANNEXURE-A PROPOSING TO
REDELIVERY OF POSSESSION BY THE DECREE HO9LDER IN
FAVOUR OF THE JUDGMENT DEBTOR AND ETC.,

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

                             ORDER

This writ petition is filed by the plaintiffs in OS No.1620 of

1994 (decree holder in Execution Petition No.25233 of 2018) on

the file of the City Civil Court at, Bengaluru challenging the order

dated 12th November, 2020.

2. Facts in brief leading to the filing of this writ petition by

the plaintiff-decree holder is that the plaintiffs filed OS No.1620

of 1994 before the trial Court, seeking relief of

declaration/possession and permanent injunction in respect of

the suit schedule property against the defendant and the said

suit came to be decreed by judgment and decree dated 16th

November, 2007. The said judgment and decree passed by the

trial Court was assailed before this Court in RFA No.228 of 2008

by the defendant/judgment debtor. This Court, by judgment

and decree dated 19th April, 2018 dismissed the appeal and as

such, the judgment and decree of the trial Court passed in OS

No.1620 of 1994 has reached finality. The said appeal was

challenged before the Hon'ble Apex Court in SLP No.25764 of

2018 and the Hon'ble Apex Court dismissed the SLP preferred by

the judgment debtor/respondent No.1 herein and as such, the

judgment and decree passed by the trial Court as well as

confirmed by this Court, is reaffirmed by the Hon'ble Apex Court

in the Special Leave Petition. In the meanwhile, the petitioners

filed Execution Petition No.25233 of 2018 before the Executing

Court. In the said Execution Petition, the decree holder has filed

IA.4 of 2018 before the trial Court and the same was dismissed

by the Executing Court and the said order dated 13th March,

2019 in Execution Petition No.25233 of 2018 was challenged

before this Court by the respondent herein in writ petition

No.13560 of 2019. This Court, by order dated 28th September,

2020, allowed the writ petition and as such, quashed the order

dated 13th March, 2019 passed by the Executing Court in

Execution Petition No.25233 of 2018 and as such directed the

Executing Court to redeliver the possession in an extent of land

measuring North to South 1 feet and East to West 48 feet on

southern portion of the suit 'C' schedule property to the

judgment debtor (respondent herein) within 30 days from the

date of receipt of copy of the order. The said order, dated 28th

September, 2020 in Writ petition No.13560 of 2019 was

challenged before the Hon'ble Apex Court in Special Leave

Petition No.13439 of 2020 and the said petition came to be

dismissed by the Hon'ble Apex Court and as such, the order

dated 28th September, 2020 passed in writ petition No.13560 of

2019 was confirmed. In the meanwhile, IA.I of 2020 filed by the

decree holder under Section 152, 153 read with 151 Code of

Civil Procedure for amendment of decree, was contested by the

respondent herein. The Executing Court, after considering the

material on record, directed the decree holder to re-deliver the

possession of the land measuring North to South 1 feet East to

West 48 feet on the southern portion of suit 'C' schedule

property to the judgment debtor. The said order dated 12th

November, 2020 is assailed by the decree holder in this petition.

3. I heard Shri T. Sheshagiri Rao, learned counsel

appearing for the petitioners and Sri Sharath S. Gowda, learned

counsel appearing for the respondent.

4. Sri T. Sheshagiri Rao, learned counsel appearing for the

petitioners, invited the attention of the court to the observation

made by this Court in RFA No.228 of 2008, particularly with

regard to finding recorded by this Court at paragraph 17 of the

judgment and argued that in order to put an end to the

litigation, the finding recorded by this Court in RFA No.228 of

2008 has to be looked into. He further contended that the

objection raised by the respondent herein before the Executing

Court is to the effect that though the First Appellate Court has

rendered a finding, but failed to incorporate the same in decree

before the trial Court and accordingly, he sought for modification

of the decree to an extent of 9 x 48 feet instead of 8 x 48 feet.

To buttress his argument with regard to consideration of the

application by the Executing Court under Section 151, 152 and

153 of Code of Civil Procedure, he places reliance on the

judgment in the case of HANSABAI SHRIPATI BHOSALE v.

PARUBAI GOPAL BHOSALE SINCE DEAD THROUGH LEGAL HEIRS

TANAJI GOPAL BHOSALE AND OTHERS reported in (2009)5

MH.LJ 500 and argued that, the Executing Court, in the

circumstances of the case, can amend the decree to effectuate

the judgment and decree rendered by the trial Court.

5. On the other hand, Sri Sharath S. Gowda, learned

counsel appearing for the respondent sought to justify the

impugned order passed by the Executing Court. He also invited

attention of the Court to schedule in the OS No.1620 of 1994

and argued that since the suit has been decreed by the trial

Court and the same has been confirmed by this Court in Regular

First Appeal No.228 of 2008 and accordingly, the order passed

by this Court and the trial Court having been confirmed by the

Hon'ble Apex Court in Special Leave Petition referred to above,

the amendment of decree by the trial Court at this stage would

not arise at all. He also invited the attention of this Court to the

finding recorded by this Court in writ petition No.13560 of 2019

and argued that the decree holder has urged all these grounds in

the aforementioned writ petition and the same has been negated

by this Court and therefore, it is his submission that the same

ground cannot be urged in this writ petition also and hence

sought for dismissal of the writ petition.

6. In the light of the submissions made by the learned

counsel appearing for the parties, careful examination of the writ

papers would indicate that the decree holder herein has filed OS

No.1620 of 1994 on the file of the trial Court seeking relief of

declaration, possession and permanent injunction in respect of

the suit schedule property and the trial Court by its judgment

and decree dated 16th November, 2007, decreed the suit by the

following order:

"The suit in OS.No.1620/94 is decreed declaring that the plaintiffs are the owners of 'C' schedule property to the extent of north-south 8 feet and east-west 48 feet. The defendant Jagannath is directed to remove the compound wall and deliver vacant possession within 2 months to the plaintiffs."

(emphasis supplied)

7. The said judgment and decree was carried in appeal by

the judgment debtor in RFA No.228 of 2008 before this Court

and this Court, by order dated 19th April, 2018 dismissed the

appeal, consequently upheld the judgment and decree passed by

the trial Court. It is also notable to consider the fact that the

decree holder herein has filed IA.4 of 2018 before the Executing

Court in Execution petition No.25233 of 2018 and the Executing

Court has allowed the IA.4 of 2018 by order dated 13th March,

2019, and the said order of the Executing Court was assailed

before this Court in Writ petition No.13560 of 2019 and this

Court, after hearing the learned counsel appearing for the

parties, by its considered order dated 28th September, 2020

allowed the writ petition, consequently, set aside the order dated

13th March, 2019 passed on IA.4 of 2018 before the trial Court.

At paragraph 5 of the order, this Court has observed as follows:

"5. Plaintiffs then sought to execute the above decree by making an application in Execution Case No.25233/2018. In the execution petition, the decree holders/plaintiffs sought for issuance of delivery warrant to remove compound wall and to deliver vacant possession of 'C' Schedule property pursuant to judgment and decree passed in OS No.1620 of 1994. In the verifying affidavit filed in support of the execution petition, the decree holder No.1 affirmed that the plaintiffs have obtained a decree declaring them as owners of the suit schedule property to an extent of North to South 8' and East to West 48'. Thus, it is clear that even in the execution petition, the decree holders namely the plaintiffs sought delivery of an extent of North to South 8' and East to West 48'. But, while issuing the delivery warrant, the entire 'C' schedule property was directed to be delivered to the decree holders and accordingly, the Bailiff put the decree holders in possession of the entire 'C' schedule property namely East to West 48' and North to South 9'; despite the objection of the judgment and decree/petitioner herein and consequently, the Executing Court recorded full satisfaction and closed the execution petition."

8. This Court, at paragraph 11 of the said judgment, has

given a finding that this Court in RFA No.228 of 2008 has

affirmed issue No.1 in OS No.1620 of 1994. The said issue in OS

No.1620 of 1994 reads as under:

"(1) Whether plaintiffs No.1 and No.2 prove that they are the owners of plaint 'C' schedule property as described in sketch appended to the plaint as alleged?"

9. Undisputably, the order dated 28th September, 2020 in

Writ petition No.13560 of 2019 has been confirmed by the

Hon'ble Apex Court in SLP No.13439 of 2020. Taking into

account the finding recorded by this Court in the RFA 228 of

2008 and in Writ petition No.13560 of 2019, I am of the view

that, since the trial Court has given a finding insofar as the issue

No.1 in the affirmative, holding that the decree holder is entitled

to an extent of North to South 8 feet and East to West 48 feet, I

do not find any material irregularity committed by the Executing

Court in the impugned order. Accordingly, I am of the view that

the writ petition deserves to be dismissed, as the arguments

advanced by the learned counsel appearing for the petitioner

herein had already been urged and considered by this Court in

writ petition No.13560 of 2019 and this Court has already given

a finding to the effect that the decree holder is entitled in an

extent of 8 x 48 feet. It is trite law that the Executing Court

cannot travel beyond the decree. This view of mine is supported

by the judgment of the Hon'ble Supreme Court in the case of

RAMESHWAR DASS GUPTA v. STATE OF UTTAR PRADESH AND

ANOTHER reported in (1996)5 SCC 728, wherein at paragraph 4

of the judgment, it is observed thus:

"It is well settled legal position that an executing Court cannot travel beyond the order or decree under execution, It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order 21, CPC. In view of the fact that it is a money claim, what was to be computed is the arrears of the salary, gratuity and pension after computation of his promotional benefits in accordance with the service law. That having been done and the court having decided the entitlement of the decree-holder in a sum of Rs.1,97,000/- and odd, the question that arises is whether the executing Court could step out and grant a decree for interest which was not part of the decree for execution on the ground of delay in payment or for unreasonable stand taken in execution ? In our view, the executing Court has exceeded its

jurisdiction and the order is one without jurisdiction and is thereby a void order. It true that the High Court normally exercises its revisional jurisdiction under Section 115, CPC but once it is held that the executing Court has exceeded its jurisdiction, it is but the duty of the High Court to correct the same. Therefore, we do not find any illegally in the order passed by the High Court in interfering with and setting aside the order directing payment of interest."

10. Therefore, the Executing Court is justified in directing

the decree holder to redeliver the possession of the land

measuring North to South 1 feet and East to West 48 feet on the

southern side of 'C' schedule property to the judgment debtor.

In view of the fact that the matter has been agitated and

considered by the trial Court and confirmed by this Court in the

aforementioned writ petition, the judgment referred to by the

learned counsel appearing for the petitioner is not applicable to

the facts of the case on hand. In the result, writ petition

deserves to be dismissed, accordingly, dismissed.

Sd/-

JUDGE lnn