Karnataka High Court
Sri Basappa S/O Rayappa ... vs Shri Rayappa S/O Irapanna ... on 3 November, 2023
Bench: K.S.Hemalekha
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NC: 2023:KHC-D:12844
CRP No. 100060 of 2017
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
CIVIL REVISION PETITION NO. 100060 OF 2017
BETWEEN:
1. SHRI. BASAPPA S/O RAYAPPA RUDRAGOUDAR
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: ULLAGADDI KHANAPUR-591221,
TALUKA: HUKKERI, DIST: BELAGAVI.
2. SHRI.ANNAPPA S/O SHIVAPPA RUDRAGOUDAR
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: ULLAGADDI KHANAPUR-591221,
TALUKA: HUKKERI, DIST: BELAGAVI.
...PETITIONERS
(BY SMT. SUNANDA P. PATIL, ADVOCATE)
Digitally AND:
signed by
VISHAL
VISHAL NINGAPPA 1. SHRI. RAYAPPA S/O IRAPPANNA RUDRAGOUDAR
NINGAPPA PATTIHAL
PATTIHAL Date: AGE: 58 YEARS, OCC: AGRICULTURE,
2023.11.06
10:53:16 R/O: ULLAGADDI KHANAPUR-591221,
+0530
TALUKA: HUKKERI, DIST: BELAGAVI.
2. SHRI.GHATIGEPPA S/O IRAPANNA RUDRAGOUDAR,
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O: ULLAGADDI KHANAPUR-591221,
TALUKA: HUKKERI, DIST: BELAGAVI.
3. SHRI.ADIVEPPA S/O IRAPANNA RUDRAGOUDAR,
SINCE DECEASED BY HIS LRS
3A. SMT. RATNAVVA W/O. ADIVEPPA RUDRAGOUDAR
SINCE DECEASED HER LRS ARE ALREADY ON
RECORD AS RESPONDENT 3B TO 3D
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CRP No. 100060 of 2017
3B. SHRI. SHIVALINGA S/O. ADIVEPPA RUDRAGOUDAR
AGE: 56 YEARS, OCC: GOVT. SERVANT,
R/O: ULLAGADDI KHANAPUR-591221,
TALUKA: HUKKERI, DIST: BELAGAVI.
3C. SHRI. MALLAPPA S/O. ADIVEPPA RUDRAGOUDAR
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: ULLAGADDI KHANAPUR-591221,
TALUKA: HUKKERI, DIST: BELAGAVI.
3D. SHRI. BASAPPA S/O. ADIVEPPA RUDRAGOUDAR
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: ULLAGADDI KHANAPUR-591221,
TALUKA: HUKKERI, DIST: BELAGAVI.
SHRI PRADANI S/O. SHIVAPPA KANAVATTI
SINCE DECEASED BY HIS LRS
4. SMT.SATAWWA W/O PRADANI KANAVATTI
AGE: 69 YEARS, OCC: HOUSEHOLD,
R/O: ULLAGADDI KHANAPUR-591221,
TALUKA: HUKKERI, DIST: BELAGAVI.
5. SHRI.RAJU S/O PRADANI KANAVATTI
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: ULLAGADDI KHANAPUR-591221,
TALUKA: HUKKERI, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. ANAND ASHTEKAR, ADVOCATE FOR R1;
NOTICE TO R2, R3 (B), R3(C) AND R5 SERVED;
NOTICE TO R3 (D) AND R4 IS HELD SUFFICIENT)
THIS CIVIL REVISION PETITION IS FILED UNDER SEC.115 OF
CPC, PRAYING TO SET ASIDE THE JUDGMENT DATED: 09.10.2017
PASSED BY THE PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, SANKESHWAR IN EP 173/2012 ALLOWING THE
REVISION PETITION WITH COSTS THROUGHOUT BY DISMISSING
EXECUTION PETITION NO.173/2012 IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS CIVIL REVISION PETITION, COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
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CRP No. 100060 of 2017
ORDER
1. The present petition by the judgment debtor
Nos.2 & 3 assailing the order dated 09.10.2017, passed in
E.P. No.173/2012 on the file of the Prl. Civil Judge & JMFC,
Sankeshwar, whereby, the execution petition filed by the
decree holder seeking for attachment of movable and
immovable properties of the judgment debtor Nos.2 & 3
and detaining the judgment debtor Nos.2 & 3 in civil prison
was allowed by the executing Court.
2. Brief facts of the case are that, respondent
Nos.1 & 2 filed the suit for permanent injunction against the
petitioners in O.S. No.26/1999, the said suit came to be
dismissed by the Trial Court. Aggrieved by which,
respondent Nos.1 & 2-plaintiffs preferred an appeal before
the Appellate Court in R.A. No.58/2009. The First Appellate
Court allowed the appeal filed by respondent Nos.1 & 2-
plaintiff and granted an injunction order against the
petitioners-defendants herein. Respondent Nos.1 & 2-
plaintiffs filed execution petition in E.P. No.173/2012
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CRP No. 100060 of 2017
contending that the judgment debtor Nos.2 & 3 have
violated the injunction order passed in R.A. No.58/2009.
3. The petitioners though represented by the
counsel did not choose to file their objections or contest the
petition. The Executing Court by the impugned order
allowed the execution petition and directed the judgment
debtor Nos.2 & 3 to be detained in civil prison for 15 days
and while passing the order, the executing Court gave a
finding that the judgment debtor Nos.2 & 3 have not
stepped into the witness box to deny the case of the decree
holders. Aggrieved by the order passed, the present petition
by the judgment debtor Nos.2 & 3.
4. Learned counsel appearing for the petitioners -
judgment debtor Nos.2 & 3 would contend that the entire
exercise of the executing Court, while allowing the
execution petition was without affording an opportunity to
the petitioners to put forth their claim and without there
being any materials placed by the plaintiffs to substantiate
their claim that there was violation of the injunctive order,
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CRP No. 100060 of 2017
only on the basis that the judgment debtor Nos.2 & 3 have
not stepped into the witness box and an adverse inference
has been drawn against the petitioners herein and the
executing Court directed for imprisonment in civil prison for
15 days, which on the face of it is without holding proper
enquiry.
5. Per contra, learned counsel appearing for the
respondents justifies the order of the executing Court and
would contend that in spite of sufficient and several
opportunities provided to the petitioners, they have not
chosen to file any objections or contest the execution
petition and inspite of the decree in favour of the
respondents, the petitioners are disturbing the peaceful
possession and enjoyment of the schedule property.
Learned counsel for the respondents would also submit that
though the liberty was reserved in the regular appeal to the
petitioners to file a suit for partition and separate
possession, till today the petitioners have not availed the
said liberty as granted in the regular appeal. Stating these
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CRP No. 100060 of 2017
grounds, learned counsel for the respondents sought to
dismiss the petition holding that the order passed by the
executing Court is justified and the same does not call for
any interference.
6. Having heard the learned counsel appearing on
either side, the only point that would arise for consideration
is:
"whether the order in E.P. No.173/2012 is
justified and calls for any interference by this Court
in the present facts and circumstances of the case?"
7. The undisputed facts are that:
(i) The suit in O.S. No.26/1999 was filed
seeking for the relief of permanent
injunction restraining the petitioners from
obstructing peaceful possession, use and
enjoyment of the suit property bearing R.S.
No.187/12 measuring 1 acre 10 guntas;
(ii) The suit in O.S. No.26/1999 filed by
respondent Nos.1 & 2 came to be
dismissed by the Trial Court on
28.08.2009;
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(iii) The regular appeal in R.A. No.58/2009
before the First Appellate Court was partly
allowed and the petitioners-judgment
debtor Nos.2 and 3 were restrained by an
order of permanent injunction from
interfering with the peaceful possession
and enjoyment of the schedule property; &
(iv) The execution petition was levied in E.P.
No.173/2012 contending that the judgment
debtor Nos.2 & 3 have violated the
injunction order passed in R.A. No.58/2009
and the execution petition stood
uncontested by the petitioners herein.
8. The impugned order, more particularly at
paragraph No.7 the executing Court has given a finding that
the judgment debtor Nos.2 and 3 have not stepped in the
witness box and an adverse inference has to be drawn,
even in the absence of the judgment debtors, the Trial
Court ought to have considered whether the judgment
debtors have violated the injunction order which was
passed in favour of the respondent Nos.1 & 2, non-
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CRP No. 100060 of 2017
contesting the execution petition is the only ground made
out by the Executing Court to arrive at a conclusion that
there is a violation of the injunction order passed in R.A.
No.58/2009. The entire exercise of the executing Court is
without affording proper opportunity and in violation of
principles of natural justice. The Executing Court, while
passing an order of detention against the judgment debtor
Nos.2 & 3, ought to have considered the whether the
materials placed by the plaintiffs is substantially enough to
show that there was violation of the injunction order passed
in R.A. No.58/2009, in the absence of the same, the
executing Court was not justified in the manner in which
the order has been passed in the present petition.
Accordingly, this Court is of the considered view that the
order passed in the Execution Petition needs interference by
this court and the point framed for consideration is
answered accordingly. For the foregoing reasons, this Court
pass the following:
ORDER
(i) The Civil Revision Petition is hereby allowed.
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CRP No. 100060 of 2017
(ii) The impugned order in E.P. No.173/2012,
dated 9th October 2017 on the file of the Prl.
Civil Judge & JMFC, Sankeshwar is hereby set
aside.
(iii) The matter is remitted back to the Trial Court
for fresh consideration in accordance with law
by affording sufficient and reasonable
opportunity to the petitioners to put forth their
contentions.
(iv) All contentions of the parties are kept open to
be urged before the Trial Court.
(v) The parties to appear before the Trial Court on
04.12.2023.
(vi) The Executing Court to pass considered order
and to dispose off the execution petition as
expeditiously as possible, but not later than six
months from the date of appearance.
(Sd/-)
JUDGE
Vnp* / CT: UMD
