Karnataka High Court
Sri. Ashok S/O. Dyavanagouda ... vs Sri. Venkanna S/O. Ramappa Ugalwat on 15 April, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2024:KHC-D:6362
WP No. 102296 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT PETITION NO. 102296 OF 2024 (GM-CPC)
BETWEEN:
SRI ASHOK
S/O. DYAVANAGOUDA DASAPPANAVAR,
AGE: 46 YEARS, OCC: EX-SERVICE MAN,
R/O. RADDER TIMMAPUR,
TQ: BADAMI, DIST: BAGALKOTE,
PIN-587201.
...PETITIONER
(BY SRI ANAND R. KOLLI, ADVOCATE)
AND:
SRI VENKANNA S/O. RAMAPPA UGALWAT,
AGE: 60 YEARS, OCC: PRIVATE EMPLOYEE,
R/O. RADDER TIMMAPUR,
TQ: BADAMI, DIST: BAGALKOTE,
PIN-587201.
...RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
CHANDRASHEKAR
LAXMAN
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF IN
KATTIMANI
THE NATURE OF CERTIORARI TO QUASHING THE IMPUGNED ORDER
Digitally signed by
CHANDRASHEKAR
LAXMAN KATTIMANI
Location: HIGH COURT
OF KARNATAKA
DATED 05.03.2024 ON INTERLOCUTORY APPLICATIONS NO.I FILED
DHARWAD BENCH
Date: 2024.04.19
11:53:50 +0530
U/O.XXI RULE 35 R/W SECTION 151 OF CPC FILED BY THE
RESPONDENT/DHR PASSED BY THE HON'BLE PRINCIPAL CIVIL
JUDGE AND JMFC, BADAMI IN EP 62/2023 VIDE ANNEXURE-F.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:6362
WP No. 102296 of 2024
ORDER
This writ petition is filed seeking for following relief:
a) Issue a writ of in the nature of certiorari to
quashing the impugned order dated
05.03.2024 on Interlocutory Applications no.I
filed U/O.XXI Rule 35 R/W Section 151 of CPC
filed by the respondent/DHR passed by the
Hon'ble Principal Civil Judge and JMFC, Badami
in EP 62/2023 vide Annexure-F.
2. Sri Anand R. Kolli, learned counsel for petitioner
submitted that petitioner was judgment debtor in Execution
Petition no.62/2022 on file of Principal Civil Judge and JMFC,
Badami. Said execution petition was filed for executing
judgment and decree passed in O.S.no.249/2018 on
21.01.2023. It was submitted as per decree defendants,
agents, relatives etc. were restrained from interfering with
peaceful possession and enjoyment of plaintiff over suit
schedule property i.e. property bearing no. VPC 585 marked
with letters ABCD in plaint sketch.
3. It was submitted description of suit schedule
property in plaint was not proper and even right of plaintiff with
regard to ownership of suit schedule property was based on
NC: 2024:KHC-D:6362
Hakkupatra and in resolution passed by Gram panchayat
description of property varied from that of Hakkupartra.
4. It was submitted, petitioner/judgment debtor was a
tenant of suit property and real owner was respondent and that
petitioner had preferred Regular Appeal against judgment and
decree passed in O.S.no.249/2018, which was pending. In
meanwhile, if respondent were to execute order, petitioner
would suffer irreparable injury. Therefore, he was constrained
to file this writ petition. It was therefore submitted that
impugned order would not be justified and sought for quashing
of same.
5. Heard learned counsel for petitioner and perused
writ petition record.
6. From above, it is seen petitioner is challenging
order passed by Execution Court on IA no.1 filed under Order
XXI Rule 35 of CPC. In said application, respondent/decree
holder has sought for implementation of injunction order by
police authorities restraining respondent from interfering with
plaintiff's possession in respect of suit property.
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7. Since judgment and decree of permanent
injunction is passed after full fledged trial, petitioner's
contention insofar as improper description of suit property or
title of plaintiff/decree holder etc. cannot be considered in this
writ petition or for that matter even in execution petition. It can
only be urged before Appellate Court. Admittedly, petitioner
has filed appeal. Therefore on grounds urged herein, petitioner
to pursue his remedies before appellate Court. Even if
impugned order is executed, petitioner would be at liberty to
seek for appropriate orders, in appeal, in case, he succeeds.
With above observations, writ petition is disposed of.
Sd/-
JUDGE
VMB
