Karnataka High Court
Jayamma vs M S Doreswamy on 2 January, 2024
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NC: 2024:KHC:117
WP No. 26738 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 26738 OF 2017 (GM-CPC)
BETWEEN:
JAYAMMA
W/O LATE SHIVANNA
AGED ABOUT 70 YEARS
R/AT PETE BEEDI
MADDUR TOWN
MADDUR TALUK - 571 429.
...PETITIONER
(BY SMT: RAKSHITHA V.N.,
SRI: RAGHAVENDRA RAO .K., ADVOCATES)
AND:
M.S. DORESWAMY
S/O SHIVAYOGI
Digitally signed
by PAVITHRA N AGED ABOUT 64 YEARS
Location: high R/AT K.H. NAGAR
court of
karnataka 2ND CROSS, NEAR THAMS CONVENT
MADDUR TOWN
MADDUR TALUK - 571 429.
...RESPONDENT
(BY SRI: RAMESHA H.E., &
SRI: SIDDAPPA V.D., ADVOCATES
SRI: T.N. RAGHUPATHY, ADVOCATE FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC
AT MADDUR IN EXECUTION NO.43/2013 DATED 17.3.2017 VIDE
ANNEXURE-E ALLOW THIS WRIT PETITION.
THIS WRIT PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT PASSED THE FOLLOWING:
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NC: 2024:KHC:117
WP No. 26738 of 2017
ORDER
The decree holder in Execution Case No.43 of 2013 on
the file of the learned Principal Civil Judge and JMFC, at
Maddur, is impugning the order dated 17.03.2017 dismissing
the execution petition.
2. Heard Smt V N Rakshitha, learned counsel for the
petitioner and Sri H E Ramesha, learned counsel for the
respondent. Perused the materials on record.
3. Learned counsel for the petitioner submits that the
petitioner as plaintiff filed the suit OS No.95 of 2000 seeking
permanent injunction and mandatory injunction against the
defendants in respect of the schedule property. The suit came
to be decreed and it has reached finality as the Regular Appeal,
Regular Second Appeal, Review Petition and even the Special
Leave Petition came to be dismissed. In the meantime, the
defendants tried to open the lock of the shop premises i.e., the
schedule property and therefore, the petitioner as decree
holder filed Execution Case No.43 of 2013. The Executing
Court vide impugned order dismissed the execution petition by
observing that hurriedly, the decree holder has filed the
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execution petition and under misconception. It is held that the
shop premises referred to by the decree holder was not the
schedule property and it is not the subject matter of the
original suit.
4. Learned counsel for the petitioner submits that in
paragraph 28 of the judgment passed by the Trial Court in OS
No.95 of 2000 and paragraph 29 of the judgment by the First
Appellate Court in RA No.6 of 2007, the Courts have made it
very clear that the schedule property consist of two shop
premises which are the subject matter of execution petition as
well. He also drawn the attention of this Court to the copy of
execution petition produced as Annexure-D where the property
in question described in the schedule, is similar to the schedule
property and which is the subject matter in the original suit.
Therefore, she would contend that the Executing Court has
committed an error in dismissing the execution petition.
Hence, she prays for allowing the petition.
5. Per contra, learned counsel for the respondent
opposing the petition submitted that the defendant -
respondent is in possession of the property and therefore, the
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Executing Court rightly held that the plaintiff has to seek
possession of the property and therefore, the execution case
came to be dismissed. There are no merits in the petition and
hence, he prays for dismissal of the petition.
6. The admitted facts of the case are that, the
petitioner as plaintiff filed the suit OS No.95 of 2000 for
permanent injunction restraining the defendants in any manner
meddling with the suit schedule property and to prevent
defendant Nos.1 to 3 from further blocking the free passage of
the plaintiffs to enter the residential portion; further to direct
defendant Nos.1 to 3 to remove obstruction caused to the
passage of the plaintiffs to enter their house from the northern
main door by removing illegal construction. Admittedly, the
suit of the plaintiff came to be decreed. It is not in dispute that
the Regular Appeal, Regular Second Appeal, Review Petition
and Special Leave Petition before the Hon'ble Apex Court came
to be dismissed and thereby the judgment and decree passed
by the Trial Court granting perpetual injunction and mandatory
injunction was confirmed.
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7. Now it is the contention of the petitioner - decree
holder that the defendants are trying to break open the lock of
the suit schedule property and therefore, Execution Case No.43
of 2013 came to be filed. By passing the impugned order, the
Executing Court dismissed the execution case by observing as
under:
"The decree holder in the guise of decree
cannot be permitted to throw out the judgment
debtor if at all, if he is in possession of any
portion of the shop. The only alternative remedy
left over to the decree holder is to take back the
possession through process of the court. At this
stage so far as the interference of the judgment
debtor is concerned, I find no satisfactory
material before me."
8. When the Trial Court held that the plaintiff is in
possession of the schedule property and granted perpetual
injunction and mandatory injunction, the finding of the
Executing Court that the decree holder should file separate suit
seeking possession of the property is not only erroneous, but it
is perverse. There is absolutely no basis for forming such an
opinion.
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9. The schedule appended to the suit describes the
property as house property bearing khata No.108/102
measuring 33 1/2 East to West and 26 North to South. The
Trial Court in para 28 of its judgment made it clear that, in the
property described in the schedule, there exists two shops.
The First Appellate Court in RA No.6 of 2007 in para 29 also
makes it clear that the schedule property consists of shop
premises. The execution petition filed by the decree holder
describes the property in the schedule as it was described in
the schedule appended to the plaint. Under such
circumstances, the finding recorded by the executing Court is
perverse and illegal and the same is liable to be set aside.
10. Accordingly, I pass the following:
ORDER
(i) The Writ Petition is allowed.
(ii) The order dated 17.03.2017 passed by the
Executing Court in Execution Case No.43 of 2013 on the file of
the learned Principal Civil Judge and JMFC, Maddur, is hereby
set aside. The Execution Case No.43 of 2013 is restored to file.
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(iv) The executing Court is directed to proceed with the
matter, in accordance with law.
Registry is directed to send back the Trial Court records
along with copy of this order.
Sd/-
JUDGE
*bgn/-
