Karnataka High Court
Abeda Begum W/O Kalandarsab Savanur vs Mohhammad Hanif S/O Madarsab Mujawar on 1 February, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 104913 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 104913 OF 2022 (GM-CPC)
BETWEEN:
1. ABEDA BEGUM W/O. KALANDARSAB SAVANUR,
AGE: 52 YEARS, OCC: HOMEMAKER,
R/O. MULGUND- 582 117,
TQ: / DIST: GADAG.
2. IRFAN S/O. KALANDARSAB SAVANUR,
AGE: 31 YEARS, OCC: STUDENT,
R/O. MULGUND- 582 117,
TQ: / DIST: GADAG.
...PETITIONERS
(BY SRI. C.S. SHETTAR & SMT. KAVYA C. SHETTAR, ADVOCATES)
AND:
1. MOHHAMMAD HANIF S/O. MADARSAB MUJAWAR,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O. MULGUND- 582 117,
TQ: / DIST: GADAG.
YASHAVANT
NARAYANKAR
2. IBRAHIM S/O. MADARSAB MUJAWAR,
Digitally
AGE: 55 YEARS, OCC: AGRICULTURE,
signed by
YASHAVANT R/O. MULGUND- 582 117,
NARAYANKAR
TQ: / DIST: GADAG.
3. JANGLISAB S/O. MADARSAB MUJAWAR,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O. MULGUND- 582 117,
TQ: / DIST: GADAG.
4. MOHAMMAD RAFIK S/O. MADARSAB MUJAWAR,
SINCE DECEASED REPRESENTED BY HIS LR'S.
4(a) MAHABOOBI W/O. MOHAMMAD RAFIK MUJAWAR,
AGE: 38 YEARS, OCC: HOMEMAKER,
R/O. DAWALMALIK PAHAD,
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WP No. 104913 of 2022
MULGUND- 582 117, TQ: / DIST: GADAG.
4(b) ASIF S/O. MOHAMMAD RAFIK MUJAWAR,
AGE: 21 YEARS, OCC: MECHANIC,
R/O. DAWALMALIK PAHAD,
MULGUND- 582 117, TQ: / DIST: GADAG.
4(c) ANISA D/O. MOHAMMAD RAFIK MUJAWAR,
AGE: 18 YEARS, OCC: STUDENT,
R/O. DAWALMALIK PAHAD,
MULGUND- 582 117, TQ: / DIST: GADAG.
4(d) SHAYUB W/O. MOHAMMAD RAFIK MUJAWAR,
AGE: 16 YEARS, OCC: STUDENT,
SINCE MINOR, THROUGH HIS MOTHER/NATURAL
GUARDIAN/NEXT FRIEND,
R/O. DAWALMALIK PAHAD,
MULGUND- 582 117, TQ: / DIST: GADAG.
5. NOORAHAMMAD S/O. MADARSAB MUJAWAR,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O. MULGUND- 582 117,
TQ: DIST: GADAG.
...RESPONDENTS
(BY SRI. M.M. PATIL &
C.S. RACHAYYANAVAR, ADVOCATES FOR R1, R3 & R5;
R4(A), R(B)- SERVICE HELD SUFFICIENT;
R4(c)- SERVED; R4(d)-R/BY N/G/M-R4(a))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO A) ISSUE A WRIT OF
CERTIORARI QUASHING THE IMPUGNED ORDER PASSED BY
LEARNED II ADDITIONAL CIVIL JUDGE AND JMFC II COURT AT
GADAG IN EX.C.NO.01/2014 DATED 23-03-2022 VIDE ANNEXURE-
H.B) CONSEQUENTLY ALLOW THE PETITION IN EX.C.NO.01/2014 AT
ANNEXURE-E.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 104913 of 2022
ORDER
1. The petitioners are before this Court seeking for the
following reliefs:
a) Issue a Writ of Certiorari quashing the
impugned order passed by Learned Ii
Additional Civil Judge and JMFC II Court at
Gadag in Ex.C.No.01/2014 dated 23-03-2022
vide ANNEXURE-H.
b) Consequently allow the petition in
Ex.C.No.01/2014 at Annexure-E.
c) Pass any other orders which this Hon'ble
Court deems fit.
2. Respondents had filed O.S.No.223/2005 before the II-
Additional Civil Judge (Jr.Dn) at Gadag for declaration that
a registered gift deed was not binding on them. In the said
suit, the petitioners, who were defendants, had filed a
counter-claim seeking for an order of injunction restraining
the plaintiffs from interfering with their possession. The
suit was dismissed. However, the counter-claim was
allowed. Appeal filed came to be dismissed. Regular appeal
also came to be dismissed. Subsequently, the Regular
Second Appeal also came to be dismissed in the year
2014.
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3. Alleging that the respondents had interfered with the
possession of the petitioners, the petitioners had filed
contempt proceedings in CCC No.100336/2014, which was
dismissed since an alternative remedy was available.
4. As such, the petitioners filed Execution Petition No.1/2014.
The said petition came to be dismissed on the ground that
the petitioners have not established that the respondents
have interfered with the possession and or dispossessed
the petitioners and further holding that no documents had
been placed on record indicating the claim of the
petitioners. Learned counsel for the petitioners submits
that there was in fact interference and it is for that reason
that the execution petition was filed.
5. Learned counsel for the respondents would submit that
there is no such interference and the respondents have
not dispossessed the petitioners, which has also been
taken into account by the Execution Court in paragraph 19
of the order. Thus, he submits that the question of
execution of a decree would only arise if there was any
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violation insofar as decree of permanent injunction is
concerned.
6. I am in agreement with the submission made by the
counsel for the respondents inasmuch as the decree being
only for a permanent injunction, the enforcement thereof
would only arise if there is any interference with the
possession of the decree holder violating the order of
injunction and or there is any dispossession of the decree
holder. In the present case, the respondents-judgment
debtors having categorically stated that they have neither
interfered nor dispossessed the petitioners, the question of
executing a decree without such interference or
dispossession would not arise. Reserving liberty to the
petitioners to approach the execution court once again, in
the event of there being any interference, the petition
stands disposed.
7. In the event of such execution proceedings being filed, the
Execution Court could always be at liberty to appoint a
commissioner to inspect the property to ascertain the
veracity of the statements.
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8. In view of disposal of the petition, pending interlocutory
applications, if any, do not survive for consideration and
are disposed of accordingly.
Sd/-
JUDGE
YAN
