Karnataka High Court
Sri Dayananda vs Sri Sesu Gowda on 22 September, 2022
Bench: R. Nataraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE Mr. JUSTICE R. NATARAJ
WRIT PETITION No. 30324/2015 (GM-CPC)
BETWEEN :
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1. Sri. Dayananda
Aged about 37 years
2. Sri. Prakash
Aged about 34 years
3. Kanchana
Aged about 30 years
All are children of
Late Venkappa Harijana and
Late Kusuma
R/at. Pajila Darkasth House
Near Marigudi
Kanthavara Village
Karkala Taluk
Udupi District - 574 104. ... PETITIONERS
(By Sri. V.R. Prasanna, Adv.)
2
AND :
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Sri. Sesu Gowda
S/o. Shanthappa Gowda
Aged about 68 years
R/at. Kanthavara Village
Karkala Taluk
Udupi District - 574 104. ... RESPONDENT
(By Sri. H. Jayakara Shetty, Adv.)
---
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India with a prayer to quash the order
dated 16.06.2015 on I.A. No. 10 in Ex.P. No. 41/2003 passed
by Prl. Civil Judge and JMFC, Karkala and etc.
This Writ Petition coming on for Preliminary Hearing B
Group this day, the Court made the following;
ORDER
The petitioners who are the decree holders in E.P. No.
41/2003 on the file of Principal Civil Judge and JMFC,
Karkala, have filed this writ petition challenging the order
dated 16.06.2015 by which the Executing Court partly
allowed the application filed by them under Order XXVI Rule
9 of Code of Civil Procedure and rejected the request of the
decree holders to execute the decree as per the sketches at
Ex.C.6 and Ex.C.7.
2. The suit in O.S. No. 323/1999 was filed for recovery
of possession of plaint `A' schedule property. The said suit
was decreed and the defendant was directed to deliver
possession of A schedule property which is described below:
Immovable property situate at Kanthawara village,
Karkala taluk.
S.No. S.D. No. Kissam Extent Assessment
228 11A2 Punja 1-60 0-96
Boundaries:
West : S.D. line or S. No. 172/11B
South : S.D. Line or S. No. 172/11A
3. An appeal was filed in R.A. No. 101/2006 before the
first appellate Court by the defendant which was dismissed
and the cross-objections filed by the plaintiff against the
findings recorded on issue Nos. 2, 3, 4 and 7 were modified
and were answered in favour of the plaintiff. It is stated, that
R.S.A. No. 1244/2022 is pending consideration before this
Court.
4. In the meanwhile, decree holder sought execution of
the decree in E.P. No. 41/2003. In the said execution petition
an application was filed by the decree holder to appoint a
survey commissioner to measure and identify plaint A
schedule property with reference to Ex.C.6 and Ex.C.7 and to
assist the Court to deliver plaint A schedule property. The
executing Court, in terms of the order impugned herein,
allowed the application in part and directed the Tahasildar to
depute a competent surveyor to assist the Bailiff in executing
the decree to deliver possession of plaint A schedule property.
However, it rejected the request of the decree holder to hand
over possession of the property as per the sketch at Ex.C.6
and Ex.C.7. Being aggrieved by such rejection, the present
petition is filed.
5. Learned counsel for the petitioners submits that
Ex.C.6 was a sketch that was summoned from the concerned
authority which evidenced the grant of the suit property to
the plaintiff while Ex.C.7 was a sketch of the property that
was granted to the defendant, which was thereafter set aside.
Learned counsel submitted that the grant in favour of the
defendant was subsequent to the grant made in the favour of
the plaintiff and therefore there was a clear overlap. In order
to identify this, it was incumbent upon the executing Court to
instruct the surveyor to deliver possession of the property as
per the sketch at Ex.C.6 and Ex.C.7.
6. Per contra, learned counsel for the judgment debtor
submitted that the decree holder himself was not sure about
the boundaries of the property. He submitted that additional
issue framed by the trial Court regarding the boundaries of
the suit property were held against the plaintiff and therefore,
the plaintiff cannot seek for execution of the decree in respect
of any property other than the plaint A schedule property.
7. I have considered the submissions made by the
learned counsel for the parties.
8. It is now well settled that a decree can be enforced
only in respect of a property mentioned in the decree and
nothing else. It is not the case of the decree holder that the
property mentioned in plaint A schedule differs from the
property mentioned in Ex.C.6. If that be so, the executing
Court can only execute the decree in respect of the property
mentioned therein and cannot travel beyond or behind the
decree. The judgment in R.A. No. 101/2006 discloses that a
similar request was made in the appeal, which was rejected.
It was held:
"71. However it is worthy to mention here
itself that in view of encroachment, and as the
defendant himself has conceded that, the plaint
schedule property can be measured only with
reference to the boundaries mentioned in the
plaint schedule and the Darkast order Ex.P.2,
there is no impediment, to give a direction for
appointment of a survey commissioner, only with
a view to give effect to the order, to be passed
herein."
9. Consequently, the executing Court was justified in
directing the execution of the decree only to deliver
possession of the property lying within the boundaries of
plaint A schedule. It also rightly rejected the request of the
decree holder to deliver possession as per sketch at Ex.C.6
since that would create confusion in the minds of the bailiff
as well as the surveyor. Therefore, the order passed by the
executing Court is unexceptionable but on the contrary is
exemplary.
10. Hence, the writ petition lacks merit and is
dismissed. The executing Court may execute the decree and
deliver possession of the property lying within the Plaint A
schedule as extracted above.
Sd/-
JUDGE.
LRS.
