Karnataka High Court
Smt Ranjini vs Smt Asha Prabhu on 7 August, 2024
Author: R Devdas
Bench: R Devdas
-1-
NC: 2024:KHC:31510
WP No. 19926 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 19926 OF 2024 (GM-CPC)
BETWEEN:
SMT RANJINI
W/O LATE M NAGESH KUMAR,
AGED 62 YEARS,
R/AT DOOR NO. 5-11-1101,
VARAMAHALAXMI KRIPA,
HARIDAS LANE, MANNAGUDDA,
MANGALORE - 575 003.
...PETITIONER
(BY SRI. ANANDARAMA K., ADVOCATE)
AND:
1. SMT ASHA PRABHU
W/O K UMESH PRABHU,
Digitally signed by AGED ABOUT 68 YEARS,
DHARMALINGAM
R/AT DOOR NO. 5-11-1072/1,
Location: HIGH
COURT OF RAVALNATH KRIPA,
KARNATAKA HAIDAS LANE, MANNAGUDDA,
MANGALORE - 575003.
2. SMT HARSHITHA
D/O LATE M NAGESH KUMAR,
AGED 35 YEARS,
R/AT DOOR NO. 5-11-1101.
VARAMAHALAXMI KRIPA,
HARIDAS LANE, MANNAGUDDA,
MANGALORE 575 003
-2-
NC: 2024:KHC:31510
WP No. 19926 of 2024
3. SMT MEGHANA
D/O LATE M NAGESH KUMAR,
AGED 33 YEARS,
R/AT DOOR NO. 5-11-1101.
VARAMAHALAXMI KRIPA,
HARIDAS LANE, MANNAGUDDA,
MANGALORE 575 003
...RESPONDENTS
(BY SMT. SANDHYA U PRABHU., ADVOCATE FOR R1
V/O DT. 26.07.2024, NOTICE TO R2 & R3 IS D/W)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN
EX. CASE NO. 65/2022 PENDING ON THE FILE OF THE COURT
OF PRINCIPAL CIVIL JUDGE MANGALURU D.K.SET ASIDE THE
ORDER DTD. 16.07.2024 (ANNX-F) PASSED BY THE COURT OF
PRINCIPAL CIVIL JUDGE, MANGALURU, D.K ON I.A.NO.4 IN
EX.CASE NO. 65/2022 AND CONSEQUENTLY ALLOW I.A.NO. 4
IN EX.CASE NO. 65/2022 AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R DEVDAS
ORAL ORDER
The petitioner, who has suffered a decree of mandatory
injunction along with a declaration and a decree of permanent
prohibitory injunction, is before this Court seeking to set aside
the impugned order dated 16.07.2024 passed on I.A.No.IV
which was filed by the petitioner/judgment debtor.
NC: 2024:KHC:31510
2. The suit was filed by respondent No.1 against the
husband of the petitioner herein claiming that the plaintiff had
a right of way in the suit schedule property marked as 'RRR'
roadway leading to the plaint schedule property. The plaintiff
sought for a declaration of her easementary right to use the
said road way through G1 gate. The Trial Court has decreed
the suit filed by respondent No.1 declaring that the 'RRR'
roadway leading to the plaint schedule property is a mamool
roadway and the plaintiff has got an unobstructed easementary
right over the said road way through G1 gate. The defendant-
petitioner's husband was directed by way of a mandatory
injunction to remove the newly constructed parallel compound
wall which is situated in front of the plaintiffs existing G1 gate
and thereafter shift the G2 gate to its original place and provide
unobstructed access to the plaint schedule property through G1
gate, within 30 days from the date of the judgment. The
defendant was also permanently injuncted from interfering with
the plaintiff's right of user of RRR roadway. The judgment was
passed on 07.01.2016.
3. The decree holder filed Execution Case No.65/2022
seeking execution of the mandatory injunction passed by the
NC: 2024:KHC:31510
Trial Court, to remove the newly constructed parallel compound
wall which is situated in front of the plaintiff's existing G1 gate.
It is not disputed that the defendant filed a Regular Appeal in
R.A.No.38/2016 before the Prl. Senior Civil Judge and CJM,
Mangaluru, challenging the judgment and decree passed by the
Trial Court. The petitioner herein filed an application in
I.A.No.IV on 09.11.2023 praying to pass an order dismissing
the Execution Petition as barred by limitation. It was
contended by the petitioner that in terms of Article 135 of the
Limitation Act, 1963, the period of limitation for executing a
mandatory injunction is three years, commencing from the date
of the decree or any specified date or happening in terms of the
decree. The Trial Court dismissed the application and
consequently the petitioner is before this Court. Learned
Counsel for the petitioner seeks to place reliance on a judgment
of the Hon'ble Apex Court in the case of Bimal Kumar and
Another Vs. Shakuntala Debi and Others (2012) 3 SCC
548.
4. However, learned Counsel for the contesting
respondent No.1 submitted that the petitioner has not
approached this Court with clean hands. It is pointed out from
NC: 2024:KHC:31510
the statement of objections filed at the hands of respondent
No.1 that the petitioner herein earlier filed W.P.No.24010/2023
seeking to assail the order dated 26.10.2023 passed by the
Executing Court. By the said order dated 26.10.2023 the
Executing Court had directed the bailiff to remove the newly
constructed parallel compound wall situated in front of existing
G1 gate and to shift G2 gate to its original place in terms of the
judgment and decree passed by the Trial Court and to file a
report after executing the said work. However, learned
Counsel for the respondents has pointed out from the
memorandum of writ petition at Annexure 'R12', more
particularly, paragraph-14 wherein it was contended that the
Execution proceedings is barred by limitation. It was
contended that respondent No.1 is seeking to enforce the
decree of mandatory injunction and in terms of Article 135 of
the Limitation Act, the execution petition ought to have been
filed within three years. It was contended that the Execution
Petition is filed after six years and hence the same is barred by
limitation.
5. Learned Counsel further pointed out to paragraph-5 of
the order passed by this Court on 01.04.2024 in
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W.P.No.24010/2023 that this Court considered such a
contention raised at the hands of the petitioner herein and held
that the Trial Court was fully justified in passing the impugned
order clarifying its earlier order dated 07.10.2023 and directing
demolition of the compound wall and shifting of the gates in
terms of the judgment and decree dated 07.01.2016 passed in
O.S.No.785/2009. This Court noticed the fact that no interim
order of stay was passed in favour of the petitioner herein in
the appeal filed by the petitioner against the judgment and
decree and therefore, no fault can be found in the orders
passed by the Executing Court. Learned Counsel would further
submit that the petitioner has not mentioned the fact that she
had earlier filed the writ petition before this Court and
therefore, the writ petition is required to be dismissed solely on
the ground that the petitioner is guilty of concealing material
facts that similar grounds were raised by the petitioner and this
Court did not accept such contentions.
6. Learned Counsel for the petitioner however submits
that although it is true that in the memorandum of writ
petition, similar ground was raised by the petitioner,
nevertheless, the orders passed by this Court did not consider
NC: 2024:KHC:31510
the said ground and therefore, the petitioner cannot be held
guilty of concealing the filing of the earlier writ petition.
7. Having heard the learned Counsel for the petitioner,
learned Counsel for respondent No.1 and on perusing the
petition papers, this Court is of the considered opinion that
since the petitioner had already raised the grounds sought to
be urged before this Court and suffered an order, the petitioner
will not be permitted to urge similar grounds once again.
8. Nevertheless, a fervent appeal is made by the learned
Counsel for the petitioner that during the pendency of the
appeal filed by the petitioner, if the Executing Court proceeds
to execute a decree under challenge, the petitioner will be put
to irreparable loss and injury. It is noticeable that the petitioner
herein filed I.A.No.IV before the Executing Court on 09.11.2023
and when this Court passed an order on 01.04.2024, that
application was still pending consideration before the Executing
Court. No orders were passed by the executing Court on the
application. The learned Counsel for the petitioner has clarified
that since there was an order of stay passed by this Court, the
Executing Court in its order dated 09.11.2023 took note of the
NC: 2024:KHC:31510
order of stay and the application in I.A.No.IV, though filed
earlier in point of time, it was not taken up for consideration.
9. In that view of the matter, this Court is of the
considered opinion that necessary directions may be issued to
the first appellate Court which is seized of R.A.No.38/2016 to
consider and dispose of the appeal within a timeframe.
10. Consequently, the writ petition stands disposed of
with a direction to the I Addl. Senior Civil Judge and CJM,
Mangaluru, to consider and dispose of R.A.No.38/2016 as
expeditiously as possible and at any rate within a period of two
months from the date of receipt of a copy of this order. Till
then the Executing Court shall not proceed to execute the
decree passed by the Trial Court.
Accordingly, I.A.1/2024 stands disposed of.
Sd/-
(R DEVDAS)
JUDGE
JT/-
CT: JL
