Karnataka High Court
Smt. Sakamma vs Narayanaswamy on 10 January, 2024
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NC: 2024:KHC:1346
WP No. 16917 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 16917 OF 2017 (GM-CPC)
BETWEEN:
SMT. SAKAMMA,
AGED ABOUT 52 YEARS,
W/O NARAYANASWAMY
R/A KONAPALLI VILLAGE,
AMBAJIDURGA HOBLI,
CHINTHAMANI TALUK,
CHIKKABALLAPURA DSIT.
...PETITIONER
(BY SRI: NAGESH .S., ADVOCATE)
AND:
1. NARAYANASWAMY
AGED ABOUT 47 YEARS
S/O LATE PAPANNA,
2. VENKATARAVANA
AGED ABOUT 45 YEARS
Digitally S/O LATE PAPANNA,
signed by
PAVITHRA N
3. RAMACHANDRA,
Location:
high court of AGED ABOUT 42 YEARS,
karnataka S/O LATE PAPANNA,
ALL ARE R/AT KONAPALLI VILLAGE,
AMBAJIDURGA HOBLI,
CHINTHAMANI TALUK,
CHIKKABALLAPURA DIST - 562 101.
...RESPONDENTS
(BY SRI: V. VISWANATH SHETTY, ADVOCATE FOR R2.
R1 & R3 - SERVED UNREPRESENTED)
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NC: 2024:KHC:1346
WP No. 16917 of 2017
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE OR
QUASH THE ORDER DATED 2.5.2015 IN EX.NO.26/2009 ON THE FILE
OF PRL. CIVIL JUDGE (JR. DVN) AND JMFC, CHINTHAMANI VIDE
ANNEX-C-1 BY CALLING THE SID CASE LOWER COURT RECORDS
AND ALLOW THE EX.NO.26/2009 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR. DVN) AND JMFC, CHINTHAMANI VIDE ANNEX-C1 AND
PASS ORDER AGAINST THE RESPONDENTS FOR THEIR
DISOBEDIENCE OF THE JUDGMENT AND DECREE DATED 16.4.99
PASSED IN O.S.13/97 AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner being the plaintiff in OS.No.13/1997 is
impugning the order dated 02.05.2015 passed in
Ex.No.26/2009 on the file of the learned Prl.Civil Judge and
JMFC., Chintamani (hereinafter referred to as Execution Court
for brevity) dismissing the petition under Order 21 Rule 11 of
CPC.
2. Heard Sri.Negesh.S., learned counsel for the
petitioner and Sri.V.Vishwanath Shetty, learned counsel for the
respondents.
3. Learned counsel for the petitioner contended that
he had filed the suit OS.No.13/1997 against the defendants
seeking perpetual injunction. The suit was came to be decreed.
The said judgment and decree was never challenged by the
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defendants. But after sometime, the defendants started to
interfering with the peaceful possession and enjoyment of the
plaintiff by encroaching on the portion of the schedule property
and making construction. Therefore, Ex.C.No.26/2009 was filed
by the decree holder under Order 21 Rule 11 of CPC, seeking to
take action against the judgment debtor for disobedience of the
decree. The decree holder has produced several materials
including the First Information Report, wound certificate which
probabalised the contention of the decree holder. The judgment
debtors admitted the encroachment upon property of the
plaintiff. But none of these facts and the documents were
considered by the Trial Court but proceeded to dismiss the
petition.
4. Learned counsel submitted that after dismissal of
the petition by the Trial Court, the judgment Debtors have
dispossessed the plaintiff by high handed act. Therefore, the
petition under Order 21 Rule 11 of CPC is to be restored by
setting aside the impugned order.
5. Per contra, learned counsel for
respondents/judgment debtors opposing the petition submitted
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that passing of the decree for permanent injunction is not
disputed. The schedule referred to in the decree is the house
bearing New No.50 measuring 20/20 feet with boundaries
mentioned therein. It is stated that on the eastern side of the
schedule property, the property belonging to the defendants is
situated. The Court Commissioner was appointed by the
executing Court and the Court Commissioner had visited the
spot and submitted his report dated 28.06.2014. As per the
report of the Commissioner, there was no encroachment and no
construction made by the respondents as contended by the
plaintiff.
6. Learned counsel further submitted that the decree
holder had led his evidence before the Trial Court. During cross
examination, the decree holder specifically admitted the fact
that suit property is in the same position as it was when the
suit was filed. Taking into consideration all these facts and
circumstances, the Trial Court recorded the findings that
disobedience of the decree is not proved. There are no reasons
to interfere with the said order. Accordingly, prays for dismissal
of the petition.
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7. Admittedly, the petitioner as the decree holder got
the decree against respondents for permanent injunction. He
filed Ex.No.26/2009 before the executing Court alleging the
disobedience of the decree. It is specifically contended that the
respondents/judgment debtors have trespassed over the
schedule property and they started to make construction over
the same. In that regard, the decree holder has examined
herself before the executing Court. It is noticed that the decree
holder during cross examination specifically stated that the
schedule property is in the same position as it was when the
suit was filed.
8. Even though the learned counsel for the petitioner
pleaded his ignorance about the appointment of Commissioner
before the executing Court and submission of his report,
certified copy of the same is produced by the respondents for
perusal of the Court. As per this document, the Court
Commissioner i.e., an Advocate by name Sri.Manjunath was
appointed as a Court Commissioner in Ex.No.26/2009 and he
visited the spot on 26.06.2014. It is stated that the family
members of the decree holder and Judgment Debtors were
present at the spot. He has inspected the schedule property
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and has not noticed any construction as contended by decree
holder. He also reported that from the eastern edge of the
schedule property, about 8 feet beyond the Gobor gas a tank is
situated. Learned counsel for the petitioner is not aware as to
whether any objection was filed to the said report or not. In
view of all these facts and circumstances, I do not find any
reason to interfere with the impugned order passed by the
executing Court, which has given elaborate reasons to dismiss
the petition under Order 21 Rule 11 of CPC. Hence, I proceed to
pass the following:
ORDER
i. Writ petition is dismissed.
ii. The impugned order dated 02.05.2015 passed in
Ex.No.26/2009 on the file learned Prl.Civil Judge and
JMFC., Chintamani dismissing the petition under
Order 21 Rule 11 of CPC is confirmed.
iii. In view of the disposal of the main petition, all
pending IAs are disposed off.
Sd/-
JUDGE
