Karnataka High Court
Smt Akkalamma vs Smt Rathnamma on 5 December, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:44014
WP No. 4010 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 4010 OF 2021 (GM-CPC)
BETWEEN:
1. SMT AKKALAMMA
W/O LATE MUNIVENKATAREDDY
AGED ABOUT 71 YEARS
2. SRI M SUBRAMANI REDDY
S/O LATE MUNIVENKATAREDDY
AGED ABOUT 44 YEARS,
BOTH ARE R/O R GADDUR VILLAGE
G MARANDAHALLI POST
MULBAGAL TALUK.
...PETITIONERS
(BY SRI. ANNAIAH C. V., ADV.
Digitally signed by
A K CHANDRIKA
Location: High AND:
Court Of
Karnataka
SMT. RATHNAMMA
W/O RAMACHANDRAREDDY
AGED ABOUT 41 YEARS,
R/O SHIVAKESHAVANAGAR
MULBAGAL TOWN.
...RESPONDENT
(BY SRI. M.V. CHANDRASHEKARA REDDY, ADV. FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS IN EX.NO.34/2012 ON THE FILE OF THE PRL.CIVIL
JUDGE AND JMFC, AT MULBAGAL, KOLAR, AND ISSUE AN
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WP No. 4010 of 2021
APPROPRIATE WRIT OR ORDER OR QUASHING THE IMPUGNED
ORDER DATED 09.02.2021 VIDE ANNX-A.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners/judgment debtors in Ex. No.34/2012
on the file Principal Civil Judge and JMFC, Mulbagal are
before this Court, questioning the order dated 09.02.2021
whereunder the petition filed under Order XXI Rule 11 of
CPC is partly allowed and petitioners are issued with arrest
notice.
2. Heard learned counsel Sri.Annaiah C.V. for
petitioners and perused the writ petition papers.
3. Learned counsel for the petitioners would submit that
the decree holder has not proved disobedience of the
judgment and decree put into execution. Learned counsel
would submit that by judgment and decree dated
23.03.2010 in O.S.No.580/1996, the suit of the
respondent/plaintiff was decreed restraining the
defendants from interfering with the peaceful possession
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and enjoyment by the plaintiff's suit schedule property by
permanent injunction. Learned counsel would submit that
the petitioners had also filed an application for
appointment of Commissioner to find out as to who is in
possession of the suit schedule property. Learned counsel
for the petitioner would submit that since beginning, the
petitioners are in possession of the suit schedule property.
It is specifically contended that without passing orders on
the application filed for appointment of Commissioner, the
Executing Court could not have proceeded to pass orders
on the application filed by the plaintiff under Order XXI
Rule 11 of CPC. Thus, he prays for setting aside the order
and to direct the Executing Court to direct the Executing
Court to pass orders on the application filed by the
petitioner for appointment of Commissioner.
4. Having heard the learned counsel for the petitioners/
judgment debtors and on perusal of the writ petition
papers, I am of the view that no ground is made out to
interfere with the impugned order. Moreover, the
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impugned order is neither perverse nor suffers from any
material irregularity, so as to warrant interference under
Article 227 of the Constitution of India.
5. Admittedly, the judgment and decree of permanent
injunction against the petitioners in O.S.No.580/1996
dated 23.03.2010 has become final in view of the
dismissal of R.A.No.70/2010 by judgment and decree
dated 04.10.2010.
6. The judgment and decree dated 23.03.2010 in
O.S.No.580/1996 which has become final is put into
execution in Ex. No.34/2012. In an execution petition, to
execute the permanent injunction, the Court shall follow
the procedure prescribed under Order XXI Rule 32 of CPC.
The trial Court during the course of the order observed
that the procedure prescribed under Order XXI Rule 32 of
CPC is followed. The petitioners have failed to point out
any procedural irregularity. Moreover, the petitioners are
issued with notice of arrest before issuing arrest warrant.
It is open for the petitioners to file their reply to the said
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notice. If such reply is filed, I am sure the Executing
Court would consider the same and pass appropriate
orders. Further, it is also open for the petitioners to
request the Executing Court to pass orders on the
application said to have been filed by the petitioners for
appointment of Commissioner and if such request is made,
trial Court to consider such request and pass order in
accordance with law.
With the above observations, the writ petition stands
disposed of.
Sd/-
JUDGE
MPK
CT:bms
