Karnataka High Court
Ambu And Anr vs Kashinath S/O Vithal Choramalla on 7 February, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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WP No. 226281 of 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
WRIT PETITION NO.226281 OF 2020 (GM-CPC)
BETWEEN:
1. AMBU W/O ANANT DEVAKATHE,
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O ALMEL, TQ. SINDAGI,
DIST. VIJAYAPURA.
2. ANANT S/O GANAPATI DEVAKHATE,
AGE: 46 YEARS, OCC: COOLIE,
R/O ALMEL, TQ. SINDAGI,
DIST.VIJAYAPURA.
...PETITIONERS
(BY SRI. SUDHEER KULKARNI., ADVOCATE)
AND:
KASHINATH S/O VITHAL CHORAMALLA,
Digitally signed by AGE: 59 YEARS, OCC: COOLIE,
VARSHA N
RASALKAR R/O ALMEL, TQ. SINDAGI,
Location: High DIST. VIJAYAPURA-586 101.
Court Of Karnataka
...RESPONDENT
(BY SRI.AJAYKUMAR A.K., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
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WP No. 226281 of 2020
ORDER
Sri.Sudheer Kulkarni., learned counsel for the petitioners
and Sri.Ajaykumar A.K., learned counsel for the respondent
have appeared in person.
2. The captioned Writ Petition is filed seeking a Writ of
Certiorari to quash the order dated:02.07.2020 passed by the
Addl. Civil Judge and JMFC, Sindagi in E.P.No.08/2014 vide
Annexure-G on several grounds as set-out in the Memorandum
of Writ Petition.
3. Learned counsel for the petitioners and the
respondent have urged several contentions. Heard, the
contentions urged on behalf of the respective parties and
perused the Writ papers with utmost care.
4. The point that requires consideration is whether the
Executing Court is justified in directing the judgment debtors to
remove the shed.
5. Suffice it to note that the respondent - Kashinath
filed a suit against the petitioners herein and the Secretary,
Gram Panchayat, Almel on the file of Civil Judge, Sindagi in
O.S.No.217/2009 alleging that the defendants 1 & 2 have
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encroached the public road which is shown as ABCD and made
an attempt to put up the shed. The sketch was annexed along
with the plaint. After contest, the suit was decreed on
05.09.2013 and defendants were restrained from putting up
the shed by encroaching the public road.
As things stood thus, the plaintiff - decree holder filed the
Execution Petition No.08/2014 making defendants 1 & 2 as the
Judgment degbtors alleging that they have encroached the
public road and have put up the shed. The judgment debtors
contested the Execution Petition by filing the objections. The
Executing Court vide order dated 02.07.2020 allowed the
petition and directed the Judgment debtors to remove the
shed.
The copy of the plaint in O.S.No.217/2009 is furnished by
the learned counsel for the respondent by filing a memo for
production of documents. Along with the plaint, hand sketch is
also furnished. It was the case of the plaintiff in
O.S.No.217/2009 that defendants 1 & 2 had encroached upon
the public road shown as ABCD in the hand sketch and made
an attempt to put up shed on the public road. It is pivotal to
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note that the plaintiff is not the owner of the public road.
However, he sought injunction alleging that defendants 1 & 2
encroached the public road and made an attempt to put up the
shed. Filing the suit on this ground itself was not tenable. If at
all the plaintiff is aggrieved by the alleged act of the defendants
1 & 2, the appropriate remedy for the plaintiff would be to bring
it to the notice of the authority concerned about the alleged
illegal activity of the defendants 1 & 2 over the public road.
However, the suit was decreed. Strangely, the Executing Court
directed the judgment debtors to remove the shed. I may
venture to say that the original decree in O.S.No.217/2009 is
not to that effect. Therefore, the Executing Court could not
have traversed beyond the decree and directed the judgment
debtors to remove the shed.
Furthermore, the plaintiff filed a suit in O.S.No.347/2015
for mandatory injunction for removal of the shed which is
alleged to have been put up by the defendants 1 & 2 on the
public road and the said suit came to be dismissed vide
judgment dated 22.02.2023. If that be so, as already noted
above, the plaintiff cannot have any grievance about the
alleged act of defendants 1 & 2. The Executing Court has failed
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to have regard to the relevant considerations and disregarded
the relevant matters and has traversed beyond the scope of
execution proceedings, which in my opinion is unsustainable in
law.
For the reasons stated above, the order of the Executing
Court is liable to be quashed. Accordingly, it is quashed.
6. The Writ of Certiorari is ordered. The order dated
02.07.2020 passed by the Addl. Civil Judge and JMFC, Sindagi
in Execution Petition No.08/2014 vide Annexure-G is quashed.
7. Resultantly, the Writ Petition is allowed.
Sd/-
JUDGE
VNR/TKN
