Kasappa S/O Appasaheb Chavar vs Bhimbai W/O Nagappa Chavar And Ors
2023 Latest Caselaw 1039 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 18TH DAY OF JANUARY, 2023

                        BEFORE

       THE HON'BLE MR.JUSTICE C.M.POONACHA


                 CRP No.200016/2022

BETWEEN

KASAPPA S/O APPASAHEB CHAVAR
AGE. 68 YEARS, OCC. AGRICULTURE,
R/O. BORAGI VILLAGE, TQ. SINDAGI,
DIST. VIJAYAPURA-586128.
                                           ...PETITIONER

(BY SRI GANESH SUBHASHCHANDRA KALBURGI;
SRI DESHPANDE G.V. & SRI ANANTH S. J., ADVOCATES)

AND

1. BHIMBAI W/O NAGAPPA CHAVAR
AGE. 68 YEARS, OCC. H.H.WORK,
R/O. BORAGI VILLAGE, TQ. SINDAGI,
DIST. VIJAYAPURA-586128.

2. REVANASIDDAPPA S/O NAGAPPA CHAVAR
AGE. 51 YEARS, OCC. H.H.WORK,
R/O. BORAGI VILLAGE, TQ. SINDAGI,
DIST. VIJAYAPURA-586128.

3. SHIVASHARANA S/O NAGAPPA CHAVAR
AGE. 38 YEARS, OCC. H.H.WORK,
R/O. BORAGI VILLAGE, TQ. SINDAGI,
DIST. VIJAYAPURA-586128.
                                          ...RESPONDENTS

(BY SMT. HEMA L. K., SRI LAXMIKANT H.K.
AND SRI MANJUNATH GINNI, ADVOCATES)
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   THIS CRP IS FILED U/S. 115 OF THE CPC, PRAYING TO
ALLOW THIS REVISION PETITION, CALL FOR RECORDS AND
SET ASIDE THE ORDER DATED 07.12.2021 PASSED IN E.P.NO.
4/2020 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC,
JUDGE AT SINDAGI, THE CERTIFIED COPY OF WHICH IS AT
ANNEXURE-D AND TO PASS ANY OTHER APPROPRIATE ORDERS
AS MAY BE DEEMED FIT TO GRANT IN THE FACTS AND
CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE
AND EQUITY.

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

                         ORDER

Heard the learned counsel for the petitioner and

the learned counsel for the respondents.

2. The present petition is filed challenging the

order dated 07.12.2021 passed in E.P.No.4/2020 by

the Court of the Additional Civil Judge and JMFC,

Sindagi.

3. The facts of the case necessary for

consideration of the present petition as is forthcoming

from the records are that the respondents had filed a

suit in O.S.No.490/2014 against the petitioner and the

father of the petitioner for permanent injunction. The

said suit was decreed vide judgment and decree dated

12.11.2019. In execution of the said decree, the

respondents have filed E.P.No.4/2020 under Order 21

Rule 11 of the Code of the Civil Procedure (for short

'CPC'). In the said execution petition, the Executing

Court vide order dated 07.12.2021 has ordered for the

petitioner, who is arrayed as judgment debtor No.2 in

E.P.No.4/2020 to be punished for 2 months in civil

prison for violation and disobedience of the order of

injunction passed in O.S.No.490/2014. Aggrieved by

the said order dated 07.12.2021, the petitioner has

filed the present petition.

4. The learned counsel for the petitioner

contends that:

i. The execution petition is filed under Order 21

Rule 11 of CPC, which is the provision of law

for executing a money decree and ought to

have been filed under Order 21 Rule 32 of

CPC, which pertains to the decrees for

injunction;

ii. The petitioner, who has arrayed as judgment

debtor No.2 was not notified of the

proceedings before the Executing Court and

that the petitioner did not have an opportunity

to contest the said proceedings;

iii. The judgment and decree dated 12.11.2019

passed in O.S.No.490/2014 against the

petitioner was decreed exparte and that the

petitioner has filed R.A.No.45/2022, which is

pending consideration and hence during the

pendency of the said regular appeal, the

Executing Court ought not to have passed the

order dated 07.12.2021;

By making the aforementioned submissions,

learned counsel for the petitioner seeks for allowing of

the above petition and grant of relief sought for

therein.

5. Per contra, learned counsel for the

respondents justifies the order passed by the

Executing Court.

6. I have considered the submissions made by

both the learned counsel and perused the material on

record. The question that arises for consideration is:

"Whether the order dated 07.12.2021

passed in E.P.No.4/2020 is liable to be

interfered with?"

7. Although the learned counsel for the petitioner

has putforth various contentions, the fact that the

petitioner did not have an opportunity to contest the

proceedings in E.P.No.4/2020 and by virtue of the

order dated 17.12.2021, he has been ordered to be

punished for 2 months in civil prison, itself is sufficient

for answering the question that arises for

consideration in this petition.

8. Notwithstanding the fact that the petitioner

has also putforth various contentions regarding merits

of the matter, it is just and proper that the petitioner

be afforded an opportunity to contest the proceedings

in E.P.No.4/2020 and the Executing Court to proceed

further with the said execution petition in accordance

with law after considering the case of both the parties.

9. In view of the aforementioned, I pass the

following:

ORDER

I. The petition is partly allowed;

II. The order dated 07.12.2021 passed by the

Court of Additional Civil Judge and JMFC,

Sindagi in E.P.No.4/2020 is set aside;

III. Both the parties shall appear before the

Additional Civil Judge and JMFC, Sindagi in

E.P.No.4/2020 on 10.02.2023 without

requirement of any fresh notice being

issued in this regard;

IV. The petitioner shall file his objections to

E.P.No.4/2020 on the said date i.e.,

10.02.2023;

V. Upon the petitioner entering appearance,

the Executing Court shall proceed further in

accordance with law;

VI. All contentions of both the parties are left

open.

SD/-

JUDGE

Srt