Karnataka High Court
Sri H Ramanjinappa vs Sri M R Anandaram on 23 August, 2023
Bench: Vijaykumar A Patil
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.20523 OF 2021 (GM-CPC)
BETWEEN:
1. SRI. H. RAMANJINAPPA
S/O LATE HANUMAIAH
AGED ABOUT 57 YEARS
R/OF. GEJJAGADAHALLY VILLAGE
DASANAPURA HOBLI
BENGALURU NORTH TALUK
BENGALURU DISTRICT-561262.
Digitally
signed by ...PETITIONER
RUPA V (BY SMT. J. KALADEEPA, ADV., FOR
Location: SRI. PATEEL G.S. ADV.,)
HIGH COURT
OF AND:
KARNATAKA
1. SRI. M.R. ANANDARAM
S/O LATE M.S. RAMAIAH
AGED ABOUT 39 YEARS
R/AT GOKUL HOUSE
GOKUL, M S RAMAIAH ROAD
BENGALURU-560054.
ALSO AT NAVKIS RESIDENTIAL
JUNIOR COLLEGE
GEJJAGADAHALLY VILLAGE
DASANAPURA HOBLI
BENGALURU NORTH TALUK
BANGALORE DISTRICT-561262.
2. SRI. BALAKRISHNA
FATHER NAME NOT KNOWN
TO THE PETITIONER
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AGED ABOUT 59 YEARS
CIVIL CONTRACTOR
C/O M S ANANDARAM
NAVKIS RESIDENTIAL
JUNIOR COLLEGE
GEJJAGADAHALLY VILLAGE
DASANAPURA HOBLI
BENGALURU NORTH TALUK
BANGALORE DISTRICT-561262.
...RESPONDENTS
(BY SRI. R. GOPAL, ADV., FOR R1
R2 SERVED)
THIS W.P. IS FILED UNDER ARTICLE 226 & 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED
ORDER DTD 16.09.2021 PASSED BY THE PRINCIPAL CIVIL
JUDGE AND JMFC, AT NELAMANGALA ON IA FILED UNDER
ORDER 26 RULE 9 READ WITH SECTION 151 OF CPC IN
EX.NO.10/2013 VIDE ANNX-M. GRANT AN INTERIM ORDER TO
STAY THE FURTHER PROCEEDINGS IN EX.NO.10/2013
PENDING ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC,
AT NELAMANGALA.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
This petition is filed under Article 227 of the
Constitution of India assailing the order dated
16.09.2021 passed on an interlocutory application filed
by the petitioner-decree holder under Order XXVI Rule 9
read with Section 151 of the Code of Civil Procedure,
1908 in Ex.No.10/2013 by the Prl. Civil Judge and
JMFC, Nelamangala seeking appointment of a Court
Commissioner to measure and identify the portion of the
encroachment by the judgment debtors. The said
application came to be rejected.
2. Brief facts giving rise to filing of this petition are
that the petitioner filed an application seeking
regularization of his unauthorized cultivation of land
measuring 2 acres in Sy.No.11 of Gejjagadahally Village,
Dasanapura Hobli, Bangalore North Taluk. The said
application is pending consideration before the
regularization committee. In the meantime, the
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petitioner has filed O.S.No.527/2009 seeking
permanent injunction restraining the respondents-
defendants, their henchmen, their agents, etc. from
interfering with the peaceful possession and enjoyment
of the suit schedule property. The said suit came to be
decreed with a direction to the defendants or anybody
claiming through them, from interfering with the
peaceful possession and enjoyment of the suit schedule
property.
3. It is averred that the respondents herein have
disobeyed the judgment and decree dated 06.01.2011
by encroaching upon the eastern portion of the land in
question to the extent of 20 guntas. In this regard, the
petitioner has filed a police complaint on 25.10.2012
and thereafter, the petitioner has filed execution petition
in Ex.P.No.10/2013 to initiate suitable action against
the respondents for disobeying the judgment and decree
of permanent injunction. The respondents have entered
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appearance in the execution proceedings and filed
objections whereby the respondents have contended
that they have not encroached any portion of the land
claimed by the petitioner nor disobeyed the judgment
and decree. It is further averred that in the said
execution proceedings, the petitioner has been
examined as PW-1 and certain documents are marked.
During the pendency of the execution petition, the
petitioner has filed an application under Order XXVI
Rule 9 read with Section 151 of the Code of Civil
Procedure seeking a prayer to appoint the Assistant
Director of Land Records as the Court Commissioner to
inspect the suit schedule property in O.S.No.527/2009
according to the boundaries and to measure the portion
of the land said to be encroached by the judgment
debtors-respondents in the suit schedule property and
to report the same to the Execution Court. The said
application was considered and rejected by the
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Execution Court by an order dated 16.09.2021. Being
aggrieved by the said order, present petition is filed.
4. Smt.Kaladeepa, learned counsel appearing for
the petitioner submits that the impugned order passed
by the Execution Court is illegal, contrary to the
material on record and liable to be set aside. The
Execution Court has failed to appreciate the fact that
before taking steps for attachment of the properties of
the judgment debtors or for seeking of his arrest as
provided under Order XXI Rule 32 of the Code of Civil
Procedure, the petitioner is required to prove that the
judgment debtors / respondents have encroached 20
guntas of the suit schedule property by violating the
injunction granted in O.S.No.527/2009 hence, the
appointment of Court Commissioner is necessary to
adjudicate the issue involved in the execution. It is
submitted that the judgment and decree dated
06.01.2011 passed in the suit has attained finality and
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the respondents have not challenged the said decree.
Hence, the Execution Court ought to have allowed the
application for appointment of the Court Commissioner
to measure the property only with an intention to find
out the exact portion of the encroachment on the suit
schedule property by the judgment debtors. It is also
submitted that the Execution Court has committed a
grave error in rejecting the application by incorrectly
interpreting the provisions of Order XXI Rule 32 of the
Code of Civil Procedure, hence, she seeks to allow the
writ petition.
5. Per contra, Mr.R.Gopal, learned counsel
appearing for the respondent No.1 supports the
impugned order or Execution Court and submits that
the petitioner himself is an encroacher of the suit
schedule property. The right in favour of the petitioner
is not yet adjudicated by the regularization committee. It
is submitted that the subject land is within a radius of
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18 kms from the limits of Bengaluru city and hence, the
petitioner's claim for grant of unauthorized occupation
is barred under the provisions of the Karnataka Land
Revenue Act, 1964, hence, prayer to appoint Court
Commissioner is futile exercise. It is further submitted
that the exercise of power of appointment of Court
Commissioner under Order XXVI Rule 9 of the Code of
Civil Procedure is a discretionary power of the Execution
Court and the said discretionary power has rightly been
exercised by the Execution Court by rejecting the
application which does not call for any interference in
the present petition. He, therefore, seeks to dismiss the
writ petition.
6. I have heard the learned counsel for the
petitioner, learned counsel for the respondent and have
perused the material on record. It is not in dispute that
the petitioner has filed O.S.No.527/2009, the said suit
has been decreed with a direction to the defendants /
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respondents herein not to interfere with the peaceful
possession and enjoyment of the suit schedule property
of the petitioner. It is also not in dispute that the
petitioner has filed execution petition in Ex.No.10/2013
for execution of the judgment and decree passed in
O.S.No.527/2009. During the pendency of the said
proceedings, the petitioner has filed an application
under Order XXVI Rule 9 read with Section 151 of the
Code of Civil Procedure seeking a prayer to appoint the
Assistant Director of Land Records, Bengaluru as the
Court Commissioner to inspect the spot of the suit
schedule property in O.S.No.527/2009 according to its
boundaries and measure the portion of the land
encroached by the judgment debtors in the suit
schedule property and report the same to the Execution
Court.
7. On perusal of the averments accompanying the
application, it is evident that the petitioner has made a
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specific assertion that the respondents have encroached
20 guntas of the suit schedule property by violating the
judgment and decree granted in his favour. The
judgment and decree of permanent injunction can be
executed as per Order XXI Rule 32 of the CPC i.e.,
arrest of the judgment debtors and by attachment of his
properties. In my considered view unless the Execution
Court decides the issue as to whether the judgment
debtors have violated the judgment and decree dated
06.01.2011 passed in O.S.No.527/2009 by ascertaining
whether there is any encroachment as alleged by the
decree holder, it would be difficult for the Execution
Court to issue an order of arrest of the judgment
debtors or for an order for attachment of their
properties. If the Court Commissioner's report is
available before the Execution Court about the alleged
encroachment by the judgment debtors in addition to
other evidence available in the proceedings it would be
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appropriate for the execution Court to pass further
orders as per Order XXI Rule 9 of CPC.
8. The finding of the Execution Court that the
decree holder instead of seeking for execution of the
decree of permanent injunction of its violation, has
sought for removal of illegal construction allegedly put
up by the judgment debtors. In my considered view, the
aforesaid finding of the Execution Court has no
relevance for consideration of the present application
seeking for appointment of Court Commissioner. It is
settled position of law that the petitioner-decree holder
cannot seek the execution of a decree more than what
has been granted in O.S.No.527/2009. Hence, in my
considered view the appointment of Court
Commissioner is necessary only to an extent of
ascertaining the factual assertion of the decree holder of
alleged violation of the judgment and decree in question
and not for removal of any alleged construction, as there
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is no such judgment and decree in favour of the
petitioner-decree holder. Hence, the finding of the
Execution Court is contrary to law and facts on record,
hence, requires interference by this Court.
9. The petitioner who is a decree holder, before
taking steps for arrest of the judgment debtors or
attachment of the properties of the judgment debtors, is
required to establish before the Execution Court that
there is a violation of the judgment and decree in the
suit by establishing the fact that there is encroachment
of 20 guntas of the land by the respondent as claimed.
Unless the petitioner is able to establish that the
judgment debtors have encroached 20 guntas of the
land as alleged by the petitioner - decree holder, the
petitioner would not be entitled to seek a prayer for
arrest of the judgment debtors or attachment of the
properties of the judgment debtors.
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10. I am of the considered view that mere
appointment of the Court Commissioner to find out
whether there is any encroachment as claimed by the
petitioner, itself would not amount into travelling
behind the decree granted by the Civil Court and
amounts to seeking prayer for removal of illegal
construction put up by the judgment debtors. In my
considered opinion, the Execution Court has committed
a grave error in rejecting the application without
considering Order XXI Rule 32 of the Code of Civil
Procedure in its proper perspective under the facts and
circumstances of the case. Mere appointment of the
Court Commissioner to measure the alleged
encroachment of the land by the judgment debtors
would not enlarge the scope of the judgment and decree
in O.S.No.527/2009. It is only an aid to execute the
judgment and decree passed in the suit.
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11. For the aforementioned reasons, the writ
petition is allowed. The impugned order dated
16.09.2021 passed in Ex.No.10/2013 is set aside. The
application filed by the decree holder under Order XXVI
Rule 9 read with Section 151 of the Code of Civil
Procedure is allowed. It is made clear that the
finding recorded by this Court is only for the purpose of
deciding the application in question and all the
contentions urged by the parties are kept open.
Sd/-
JUDGE
RV
