Karnataka High Court
Smt Narasamma vs Smt Malliramma on 9 February, 2024
-1-
NC: 2024:KHC:5711
WP No. 24687 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 24687 OF 2022 (GM-CPC)
BETWEEN:
1. SMT. NARASAMMA
WIFE OF LATE JAVARAIAH
AGED ABOUT 65 YEARS
RESIDING AT BEGURU VILLAGE
MUTTHURU POST, KASABA HOBLI
PERIYAPATNA TALUK
MYSORE DISTRICT - 571 107
2. SRI. RAMKUMAR
SON OF LATE JAVARAIAH
AGED ABOUT 48 YEARS
RESIDING AT BEGURU VILLAGE
MUTTHURU POST, KASABA HOBLI
PERIYAPATNA TALUK
MYSORE DISTRICT - 571 107
3. SMT. INDIRAMMA
DAUGHTER OF LATE JAVARAIAH
Digitally signed AGED ABOUT 46 YEARS
by PAVITHRA N
RESIDING AT BEGURU VILLAGE
Location: high MUTTHURU POST, KASABA HOBLI
court of
karnataka PERIYAPATNA TALUK
MYSORE DISTRICT - 571 107
4. SRI. RAMAIAH
SON OF LATE BORAIAH
AGED ABOUT 63 YEARS
RESIDING AT DOREKERE VILLAGE
RAVANDUR HOBLI, KASABA HOBLI
PERIYAPATNA TALUK
MYSORE DISTRICT - 571 108
5. SRI. SANNAIAH
SON OF LATE BORAIAH
-2-
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WP No. 24687 of 2022
AGED ABOUT 59 YEARS
RESIDING AT DOREKERE VILLAGE
RAVANDUR HOBLI, PERIYAPATNA
TALUK, MYSORE DISTRICT - 571 108
...PETITIONERS
(BY SMT: ASHIKA GURUMATH, FOR
SRI: SIDDAMALLAPPA .P.M., ADVOCATE)
AND:
1. SMT. MALLIRAMMA
WIFE OF LATE ERAIAH
AGED ABOUT 70 YEARS
RESIDING AT DOREKERE VILLAGE
RAVANDUR HOBLI, KASABA HOBLI
PERIYAPATNA TALUK
MYSORE DISTRICT - 571 108
2. SRI. MOGANNA
SON OF LATE ERAIAH
AGED ABOUT 50 YEARS
RESIDING AT DOREKERE VILLAGE
RAVANDUR HOBLI, KASABA HOBLI
PERIYAPATNA TALUK
MYSORE DISTRICT - 571 108
3. SRI. SANNATHAMMAIAH
SON OF LATE ERAIAH
AGED ABOUT 50 YEARS
RESIDING AT DOREKERE VILLAGE
RAVANDUR HOBLI, KASABA HOBLI
PERIYAPATNA TALUK,
MYSORE DISTRICT - 571 108
4. SRI. SANNAIAH
SON OF LATE ERAIAH
AGED ABOUT 46 YEARS
R/AT DOREKERE VILLAGE
RAVANDUR HOBLI, KASABA HOBLI
PERIYAPATNA TALUK
MYSORE DISTRICT - 571 108
5. SRI. SWAMY
SON OF LATE ERAIAH
-3-
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WP No. 24687 of 2022
AGED ABOUT 44 YEARS
RESIDING AT DOREKERE VILLAGE
RAVANDUR HOBLI, KASABA HOBLI
PERIYAPATNA TALUK
MYSORE DISTRICT - 571 108
6. SRI. RAVI
SON OF LATE ERAIAH
AGED ABOUT 42 YEARS
RESIDING AT DOREKERE VILLAGE
RAVANDUR HOBLI, KASABA HOBLI
PERIYAPATNA TALUK
MYSORE DISTRICT - 571 108
...RESPONDENTS
(BY SRI: .B.S. NAGARAJ, ADVOCATE FOR R1-6)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
24.11.2022, PASSED IN EX.NO.72/2018 BY THE CIVIL JUDGE AND
JMFC, PERIYAPATNA, AS PER ANNEXURE J AND THEREBY DISMISSED
THE APPLICATION FILED UNDER ORDER-XXI, RULE-32(5)CPC.
ALLOW THE COST AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
- B GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The judgment debtors in Execution Case No.72 of 2018
on the file of the learned Civil Judge and JMFC, Periyapatna, are
impugning the order dated 24.11.2022 allowing IA.2 and
issuing direction to the PSI of jurisdictional Police Station to
give protection to the plaintiffs - decree holders as per the
judgment and decree passed in OS No.112 of 2012.
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2. Heard Smt Ashika Gurumath, learned counsel for
the petitioners and Sri B S Nagaraj, learned counsel for the
respondents. Perused the materials on record.
3. Learned counsel for the petitioners submitted that
the respondents as plaintiffs have filed the suit OS No.112 of
2012 seeking perpetual injunction. The suit was decreed and
the execution was filed by the decree holders in Execution Case
No.72 of 2018. In the said Execution Case, IA.2 was filed
seeking police protection for implementing the decree. The
Executing Court without considering the contention of the
parties, allowed the application providing police help for
implementing the decree. Therefore, the petitioners are before
this Court.
4. Learned counsel submitted that the petitioners had
filed the suit for declaration of their title and also for perpetual
injunction. The Trial Court had observed that both the parties
have not proved their possession over the property, the
boundaries of the respective suit are not identified. There was
confusion about enjoyment of the properties between the two
parties. Learned counsel submitted that petitioner No.1 filed
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the affidavit dated 06.01.2024 and in view of the same, the
petition is liable to be allowed. Accordingly, he prays for
allowing the petition.
5. Per contra, learned counsel for the respondents
opposing the petition submitted that in spite of the judgment
and decree passed by the Trial Court has reached finality,
judgment debtors tried to interfere with the peaceful
possession and enjoyment of the property. Therefore, IA.2 was
filed seeking police protection for implementation of the decree.
The Executing Court after considering the rival contentions
rightly passed by the order. There is no illegality or perversity
in the impugned order and it do not call for interference.
Accordingly, he prays for dismissal of the petition.
6. However, learned counsel submitted that if the
affidavit filed by petitioner No.1 is placed on record, the Court
may proceed to pass appropriate orders, reserving liberty to
the respondents - decree holders to approach the jurisdictional
police for necessary protection, in case of necessity.
7. The admitted facts of the case are that,
respondents filed the suit OS No.112 of 2012 seeking perpetual
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injunction and the same came to be decreed. The Execution
No.72 of 2018 is filed for executing the decree. It is the
contention of decree holders that in spite of the such decree,
the judgment debtors are trying to interfere with their
possession and enjoyment of the property. IA.2 came to be
filed under Order XXI Rule 32(5) seeking police protection for
implementation of the decree. The said IA was allowed and
police protection was provided to the decree holders. Against
the said order, the petitioners are before this Court.
8. Even though, learned counsel for the petitioners
contended that in the judgment of the Trial Court, it is
observed that both the parties are in possession of the property
and the boundaries between two properties are not identified
yet, the fact remains that the petitioners have suffered the
decree passed in OS No.112 of 2012. Mere filing of another
suit for declaration and perpetual injunction would not
authorize the defendants being judgment debtors, to disobey
the decree passed by the competent Civil Court.
9. Petitioner No.1 filed the affidavit dated 06.01.2024
which reads as under:
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I, Smt. Narasamma, Wife of Late Javaralah,
Aged about 66 years, Residing at Beguru Village,
Mutthuru Post, Kasaba Hobli, Periyapatna Taluk,
Mysore District, Pin code-561 107, today at
Bengaluru do hereby solemnly affirms and state on
oath as follows:
1] I am the first Petitioner in the above writ
petition. Petitioner No.2 is my son. Petition No.3 is
my married daughter. Petitioners No.4 and 5 are
divided younger brothers of my deceased husband
Javaralah.
2] I am swearing this affidavit for myself and
on behalf of other Petitioners. Our interest in the
matter is common and not contrary in any manner.
3] I submit that the land bearing Sy.No.108,
totally measures 4 acres 10 guntas. The land was
purchased by Thoppana Bora @ Boraiah under a
registered sale deed dated:20.08.1962 (Annexure-
B). Purchaser Thoppana Bora @ Boraiah is my
deceased father-in-law. After his death his survived
four sons succeeded to the estate of the deceased.
They are Javaraiah, Ramaiah, Lakshmaiah and
Sannaiah. The properties succeed were divided in
to four equal share.
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3] We made it clear that we have not caused
any act or omission causing disobedience of the
Judgement and decree dated: 15.11.2017 passed
in O.S.No.112/2012. We are nothing to do in
respect of the land subject matter of
O.S.No.112/2012 and the boundary given to the
said property and our property is different.
4] We have filed original suit
in O.S.No.271/2018 for the relief of declaration of
title and permanent injunction against the
Respondent on the file of Principal Civil Judge and
JMFC, Periyapatna, the suit is pending.
5] We undertakes that except doing
agricultural operation in our land bearing
Sy.No.108, measuring 4 acres 10 guntas,
purchased under the registered sale deed dated:
20.08.1962 and we will not exceed our limits and
boundary of our property in any manner.
I am swearing as that of an undertaking
before this Hon'ble court."
10. Since the petitioners have made it clear that the
judgment debtors will not cause any act or omission causing
disobedience of the decree dated 15.11.2017 passed in the
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suit, I am of the opinion that the same may be placed on
record and the petition may be disposed off, reserving liberty
with the respondents - decree holders to approach the
jurisdictional police, in case of necessity.
11. Accordingly, I proceed to pass the following:
ORDER
(i) The writ petition is disposed off.
(ii) The affidavit sworn by petitioner No.1 is placed on
record. Liberty is reserved with the respondents -decree
holders to approach the jurisdictional police, in case of
necessity. In such an event, the jurisdictional police shall
provide necessary help to the decree holder to enforce the
decree passed in their favour.
Sd/-
JUDGE
*bgn/-
