Karnataka High Court
Channabasappa Javali S/O Mahantappa ... vs Town Municipal Council on 6 June, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
NC: 2024:KHC-D:7577
CRP No. 100023 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CIVIL REVISION PETITION NO.100023/2024
BETWEEN:
CHANNABASAPPA JAVALI
S/O. MAHANTAPPA JAVALI,
AGE: 63 YEARS, RESIDENT OF 100 BED,
HOSPITAL ROAD, OPPOSITE HERO HONDA
SHOWROOM, AMARAVATI,
TQ: HOSPET,
DIST: VIJAYANAGAR - 583 201.
...PETITIONER
(BY SRI VIDYAVATI M. KOTTURURSHETTAR, ADVOCATE)
AND:
TOWN MUNICIPAL COUNCIL,
AMARAVATI NOW MERGED WITH,
HOSPET CITY MUNICIPALITY,
CITY MUNICIPAL COUNCIL,
HOSPET, BY ITS COMMISSIONER,
Digitally
DIST: VIJAYANGAR - 583 201.
signed by V N ...RESPONDENT
BADIGER
Location: (RESPONDENT IS SERVED)
High Court of
Karnataka
THIS CRP IS FILED UNDER SEC.115 OF CPC, PRAYING TO, TO
CALL FOR THE RECORDS OF THE CASE E.P.NO.10/2019 ON THE FILE
OF PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, AT HOSAPET DATED 20.01.2024. TO CALL FOR THE
RECORDS OF THE CASE NO. 192/1983 ON THE FILE OF PRINCIPAL
MUNISFF AT HOSAPET DATED 09.04.1986. TO SET A SIDE ORDER
DATED 20.01.2024 BY THE PRINCIPAL CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS AT HOSPET IN E.P.NO.10/2019. COST OF
-2-
NC: 2024:KHC-D:7577
CRP No. 100023 of 2024
THE PROCEEDINGS MAY KINDLY BE GRANTED IN FAVOUR OF
PETITIONER AND ETC.,
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Petitioner is before this Court aggrieved by the order
dated 20.01.2024 passed in E.P.No.10/2019 on the file of
Principal Civil Judge and JMFC, Hospet. The said execution
petition in E.P.No.10/2019 is filed by the petitioner herein
seeking execution of the judgment and decree of
permanent injunction, dated 09.04.1986 passed in
O.S.No.192/1983 complaining breach and willful
disobedience of the same by the respondent and its
representations.
2. Case of the petitioner is that he is the absolute
owner of the suit schedule premises which is an open site
bearing D.No.89A (out of Sy.No.257B/B) with following
boundaries;
East: 100 Bed hospital road,
West: Property belongs to Badri Narayana
North: Property belongs to Javali Ashok
NC: 2024:KHC-D:7577
South: Space and building belongs to
Vaddara Nagarappa
3. It is the case of the petitioner that despite there
being a decree of permanent injunction, respondents are
making illegal attempts to form a road in the said property
and allowing public to utilize the same. Thus, complaining
disobedience of the said decree of permanent injunction,
petitioner filed the execution petition and sought
assistance of the Court in enforcing the same.
4. The said petition has been resisted by the
respondent-Municipality by contending that they have not
interfered in peaceful possession and enjoyment of the
property belonging to Decree Holder (for short, hereinafter
referred to as 'Dhr'). But they are forming the road in the
open space situated in southern side of the execution
petition property which does not belong to Dhr.
5. It is further contended that the Dhr has not
made out the date on which the Judgment Debtor (for
short, hereinafter referred to as 'Jdr') formed the road and
NC: 2024:KHC-D:7577
interfered with the peaceful possession and enjoyment of
the execution petition property.
6. It is further contended that the decree was
passed in the year 1986 and execution petition was filed
after lapse of 12 years was not maintainable.
7. Considering the contentions and pleadings
urged by the parties, the Executing Court made following
points for consideration:
"1. Whether Dhr has proved beyond all
reasonable doubt that Jdr has willfully disobeyed
the order of injunction passed in
O.S.No.192/1983?"
8. On appreciation of the pleadings and evidence,
the Executing Court come to the conclusion in answering
the said point in the negative. While arriving at said
conclusion, the Executing Court has held that on the
southern side of the execution petition property there is
open space. The Executing Court has thus held that since
the Dhr is not claiming any right over open space situated
on the southern side of the execution petition property and
NC: 2024:KHC-D:7577
the same is being utilized by the Jdr, the same would not
amount to interfere with the peaceful possession and
enjoyment of the property of the Dhr.
9. Thus, based on these findings the Executing
Court has come to the conclusion that the Jdr has not
interfere with the peaceful possession and enjoyment of
the property and they forming road in the open space
situated in southern side of the property which does not
belong to Dhr.
10. Learned counsel for the petitioner drawing
attention of this Court to the finding given in the judgment
and decree dated 09.04.1986 passed in O.S.No.192/1983
at paragraph No.4(b) in page No.11 as well as in page
No.13 wherein, while referring to Ex.P.4-Approved plan,
the Trial Court had categorically held that there was no
road existing near the property claimed by the plaintiff.
11. Thus, the learned counsel for the petitioner
submits that the Executing Court has failed to appreciate
the contentions raised by the petitioner and without
NC: 2024:KHC-D:7577
adverting to the judgment and decree has passed the
impugned order rejecting the Execution Petition.
12. Heard and perused the records.
13. There is no dispute of the fact that in terms of
judgment and decree dated 09.04.1986 passed in
O.S.No.192/1983 the Trial Court had decreed the suit
granting the following reliefs:
"This suit is decreed as hereunder:
The defendant-Municipality, its officers,
servants, agents etc., are restrained by means of
an order of perpetual injunction from interfering
with the peaceful possession and enjoyment of
the plaint schedule premises by the plaintiff and
the defendant-Municipality, its officers, servants
and agents etc., are further restrained by means
of an order of perpetual injunction from making
any construction or formation of a road in the
plaint schedule premises otherwise than under
the process of law. In the circumstances, the
plaintiff is also entitled for his costs in this suit
from the defendant - Municipality and the
defendant - Municipality is liable to pay the same
to the plaintiff."
NC: 2024:KHC-D:7577
14. As rightly pointed out by the learned counsel for
the petitioner while passing the said decree the Trial Court
had taken into consideration the material placed on record
by the parties more particularly Ex.P.4-Approved plan and
has given a categorical finding that there exists no road
around the property belonging to the plaintiff. When the
said reasoning given by the Trial Court is read in the light
of the decree passed as extracted herein above more
particular restraining the respondent-Municipality by an
order of permanent injunction by making any construction
or forming of the road in the plaint schedule property
otherwise than under the due process of law, the
respondent-Municipality could not have caused any sort of
interference.
15. Though the Executing Court has referred to the
contentions raised by the respondent-Municipality that the
decree did not contains measurement of the property, no
finding in this regard has been given either by the Trial
Court or Executing Court. Needless to state measurement
of the property would be available, with the respondent-
NC: 2024:KHC-D:7577
Municipality as the subject property is being assessed for
the payment of the property tax, with respondent-
Municipality, and the same is available for verification.
16. Be that as it is, the Executing Court could not
have gone beyond the decree posing the question with
regard to the identity and the measurement of the subject
property, except examining if there was violation or
disobedience of the order as alleged.
17. In any event, all questions arising between the
parties to the suit in which the decree is passed relating to
execution shall be determined by the Executing Court as
provided under Section 47 of the Code of Civil Procedure.
18. For the aforesaid reasons the order requires set
aside and the matter be remitted to the Executing Court to
pass appropriate orders after hearing the parties.
19. With these observations, petition is allowed.
The order passed by the Executing Court dated
20.01.2024 is set aside.
20. Matter is remitted to the Executing Court for
fresh consideration. The Executing Court shall pass the
NC: 2024:KHC-D:7577
order after hearing the parties within outer limits of 03
months from the date of receipt of certified copy of the
order.
21. In view of disposal of the petition, pending
application, if any, does not survive for consideration.
SD/-
JUDGE
SMM/CT-ASC
