Karnataka High Court
Smt. Devakki W/O Lagamanna Hammannavar vs Smt Kasavva D/O Ramappa Patil on 25 April, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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WP No. 102513 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT PETITION NO. 102513 OF 2024 (GM-CPC)
BETWEEN:
SMT. DEVAKKI
W/O. LAGAMANNA HAMMANNAVAR,
AGED ABOUT 60 YEARS,
OCC. HOUSEHOLD WORK,
R/O. INGALI, TALUK. HUKKERI,
DISTRICT. BELAGAVI-591309.
...PETITIONER
(BY SRI H.M. DHARIGOND, ADVOCATE)
AND:
SMT. KASAVVA D/O. RAMAPPA PATIL,
AGED ABOUT 65 YEARS,
OCC. HOUSEHOLD WORK,
R/O. INGALI, TALUK. HUKKERI,
DISTRICT. BELAGAVI-591309.
...RESPONDENT
(BY SRI RAMESH N.MISALE, ADVOCATE)
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO, A) A WRIT IN THE
NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED
23-08-2023 PASSED ON I.A. NO. I IN EP NO.68/2023 PASSED BY
THE SENIOR CIVIL JUDGE, HUKKERI AND ALSO QUASH THE ENTIRE
PROCEEDINGS OF THE EXECUTION PETITION VIDE ANNEXURE-J AND
G.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:6919
WP No. 102513 of 2024
ORDER
This writ petition is filed seeking for following reliefs:
A) A writ in the nature of certiorari to quash the
impugned order dated 23-08-2023 passed on
I.A. No. I in EP no.68/2023 passed by the
Senior Civil Judge, Hukkeri and also quash the
entire proceedings of the execution petition
vide ANNEXURE-J AND G.
2. Sri H.M.Darigond, learned counsel for petitioner
submitted that petitioner was judgment debtor ('JDr' for short)
In E.P.no.68/2023 on file of Senior Civil Judge, Hukkeri, which
was filed for executing judgment and decree passed by Senior
Civil Judge, Hukkeri in O.S.no.69/2006, which had attained
finality as follows:
"The defendant is hereby declared, as the
legally wedded wife of deceased Lagamanna
Appanna Hammannavar and the plaintiff is
hereby restrained by an order of injunction that
she should not cause any interference or
obstruction in the peaceful possession and
enjoyment of the suit schedule properties by
the defendant. ..... ...."
3. It was submitted, relief sought in execution petition
were as follows:-
A) "The Judgment debtor's is causing
obstructions to the decree holder by
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violating injunction order passed by
Hon'ble Senior Civil Judge Court, Hukkeri
in O.S.No.69/2006, which is confirmed by
Hon'ble High Court of Karnataka in
R.S.A.No.5446/2012.
B) JDR may please be arrested and kept
in civil prison and also by attaching her
properties for violating the injunction
order of this court.
C) Since JDR not complying order of this
court P.S.I Yamakanamardi may please
be directed to assist decree holder for
removing the obstruction of JDR.
D) Any other reliefs as Hon'ble Court may
deem fit and reasonable."
4. In execution petition, respondent decree holder
('DHr' for short) filed I.A.no.I under Order XXXIX Rule 1 and 2
of CPC for restraining JDr from alienating suit schedule
properties. Though application was opposed, under order
impugned herein Executing Court allowed application and
granted order of temporary injunction against JDr. It was firstly
submitted that DHr was not in possession; secondly, there was
no executable decree for delivery of possession; thirdly,
injunctive relief cannot be granted in Execution Petition and
lastly, it was contrary to and not in prayers sought in Execution
Petition.
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5. It was submitted, DHr had later filed I.A.no.2/2024
under Order XXI Rule 35 of CPC for issuing possession warrant.
It was submitted, if DHr was not in possession, there would be
no basis for granting injunction. On said grounds, sought for
quashing of impugned order.
6. On other hand, Sri Ramesh N. Misale, learned
counsel for DHr opposed writ petition. It was submitted that IA
no.I was filed in execution petition not for temporary injunction
restraining interference, but, against alienation and filing of IA
no.II for possession could not have any effect on order passed
on IA no.I.
7. Heard learned counsel for petitioner and perused
writ petition record.
8. From above, it is seen that JDr is challenging order
passed restraining him from alienating suit schedule properties
during pendency of execution petition. Insofar as first ground
that DHr is not in possession and that JDr was in possession, a
bare perusal of decree passed by trial Court would indicate that
restraint is on plaintiff from interfering in peaceful possession
and enjoyment of suit schedule properties by defendant. It is
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not in dispute that petitioners herein were original plaintiffs.
Therefore there would be no gainsay in same. Insofar as
contention, temporary injunction cannot be filed in execution
petition, relief sought being to restrain obstruction against
violation of decree, Executing Court in exercise of inherent
power entertained application and granted injunction. No
precedents or case law is cited against said procedure. Fact
that DHr is seeking to enjoy fruits of a hard fought decree
would restrain me from interference.
9. Perusal of prayers sought in Execution Petition, do
not substantiate contention that application was contrary to
main relief. Thus, there are no justifiable grounds to interfere.
10. Writ petition is accordingly dismissed.
Sd/-
JUDGE
VMB
