Sri. Parameshwara Shettigara vs Cyril D Souza
2022 Latest Caselaw 5108 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF MARCH, 2022

                           BEFORE

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

     WRIT PETITION No.17165 OF 2017 (GM-CPC)

BETWEEN:

Sri. Parameshwara
Shettigara
Son of late Honnayya Shettigara,
Aged about 48 years,
Residing at Doddamane,
Thalipady village,
Mangalore Taluk - 574 150
Dakshina Kannada District.
                                           ..    Petitioner

(By Sri. S.Rajashekar, Advocate)

AND:

Cyril D'Souza,
Son of late Clement D' Souza,
Aged about 47 years,
Residing at Thomas House,
Bithlu, Thalipady village,
Mangalore Taluk,
Dakshina Kannada
District - 574 150.
                                                .. Respondent

(By Ms. Prasanna K., for Sri.K. Chandranath Ariga &
Sri. M.K. Vijaya Kumar, Advocates)

                                ****
                                                  W.P.No.17165/2017
                                 2


       This Writ Petition is filed under Article 227 of the
Constitution of India, praying to issue a writ of certiorari to
quash the order dated 13-04-2017 passed in Execution Petition
No.2/2012 on the file of Civil judge and JMFC, Moodabidre vide
Annexure A, in the interest of justice and equity; issue any other
writ, order, or direction and grant such other and further reliefs
as this Court deems fit and proper, under the circumstances of
this case, in the interest of justice and equity.

      This Writ Petition coming on for Preliminary Hearing in 'B'
Group, through Physical Hearing/Video Conferencing Hearing,
this day, the Court made the following:

                               ORDER

The present petitioner is the judgment debtor against

whom the present respondent, as a decree holder has got a

decree of permanent injunction.

2. The suit of the present respondent as plaintiff was

one for permanent injunction, restraining the defendant and

any one claiming through him from interfering in his

(plaintiff's) peaceful possession of the suit schedule

property and restraining the defendant from interfering in

the activity of the plaintiff in erecting a compound wall

around his suit schedule decreetal property. The judgment

and decree in the Original Suit was passed by the Court of

the Principal Civil Judge (Junior Division), W.P.No.17165/2017

Karkala,(hereinafter for brevity referred to as "the Trial

Court") on 22-03-2004, whereas the execution petition

came to be filed only on 20-01-2012, in the Court of the

learned Civil Judge and Judicial Magistrate First Class,

Moodbidri (hereinafter for brevity referred to as "the

Executing Court") as per Annexure C. Thus, nearly eight

years after the judgment and decree in the Original Suit,

the execution petition has been filed. In the execution

petition, it has been prayed by the decree holder that, since

he is erecting a compound wall around the decreetal

property, the defendant (judgment debtor), who is alleged

to have trespassed into the property on

14-01-2012, would cause obstruction, as such, he (decree

holder) may be given Police protection and a direction be

given for the arrest and detention of the judgment debtor in

civil prison.

3. The Executing Court, in its impugned order dated

13-04-2017 passed in the said Execution Case No.2/2012

has directed the judgment debtor and his people not to W.P.No.17165/2017

obstruct erection of a compound wall around the decreetal

property, and at the same time, it also directed the Station

House Officer, Mulki, to extend Police aid, while erecting the

compound wall to the decreetal property, to prevent any

violence or obstruction by the judgment debtor and his

people. Strangely, it also directed for the arrest and

detention of the judgment debtor in civil prison to enforce

obedience to the order of the Executing Court.

4. Admittedly, no evidence was recorded by the

Executing Court before proceeding to pass the impugned

order, more particularly, while directing for arrest and

detention of the judgment debtor in civil prison.

5. Learned counsels from both side submit that no

material was placed before the Executing Court even to

show that, the judgment debtor or his men were interfering

in the erection of the compound wall around the decreetal

property, which has necessitated the arrest and detention of

the judgment debtor and keeping him in civil prison.

W.P.No.17165/2017

6. At this stage, learned counsel for the respondent

(decree holder) submits that, she would not press on the

direction in the impugned order for arrest and detention of

the judgment debtor in the civil prison, provided the

defendant (judgment debtor) would not cause unlawful

interference in the erection of the compound wall, which

erection of the compound wall would be in accordance with

law and the sanctioned plan.

7. Learned counsel for the petitioner submits that the

petitioner undertakes that if any erection of the compound

wall within the suit schedule decreetal property according

to the sanctioned plan is undertaken, the petitioner herein

or anyone claiming through him will not interfere.

8. Recording the above undertaking, the writ petition

stands disposed of, however, setting aside that portion of the

direction of the Executing Court in the impugned order dated

13-04-2017 in Execution Case No.2/2012, wherein it has W.P.No.17165/2017

directed for the arrest and detention of the judgment debtor

in civil prison.

Sd/-

JUDGE

BMV*