Karnataka High Court
Basavanneppa S/O. Tirakappa Mattimani vs Nagappa S/O. Bheemappa Hittalmani on 8 November, 2024
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CRP No. 1067 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CIVIL REVISION PETITION NO.1067 OF 2012
BETWEEN:
1. BASAVANNEPPA,
S/O. TIRAKAPPA MATTIMANI,
SINCE DECEASED BY HIS LR'S.,
1A. SMT. HUVAKKA,
W/O BASAVANNEPPA MATTIMANI,
AGE: 70 YEARS,
OCC: HOUSE WIFE.
1B. SHRI. AJJAPPA,
S/O BASAVANNEPPA MATTIMANI,
AGE: 49 YEARS,
OCC: AGRICULTURE,
BHARATHI BOTH ARE R/O: TADAS, TQ: BYADAGI,
HM DIST: HAVERI-581 106.
Digitally signed by ...PETITIONERS
BHARATHI H M
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH (BY SRI. N.P. VIVEKMEHTA, ADVOCATE FOR P1A AND P1B)
AND:
1. NAGAPPA,
S/O. BEERAPPA HITTALMANI,
AGE: 58 YEARS, OCC: AGRICULTURE,
2. HUCHAPPA,
S/O. BEERAPPA HITTALMANI,
AGE: 52 YEARS, OCC: AGRICULTURE,
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CRP No. 1067 of 2012
3. HONNAPPA,
S/O. IRAPPA HITTALMANI,
SINCE DECEASED BY HIS LR'S.,
ALL ARE R/O: KATENHALLI,
TQ: BYADAGI.
3A. SMT. HALLAMMA,
W/O HONNAPPA HITTALMANI,
AGE: 62 YEARS,
OCC: HOUSEHOLD WORK,
3B. IRAPPA,
S/O HONNAPPA HITTALMANI,
AGE: 46 YEARS,
OCC: AGRICULTURE,
3C. SURESH,
S/O HONNAPPA HITTALMANI,
AGE: 43 YEARS,
OCC: AGRICULTURE,
3A TO 3C ARE R/O. KATENHALLI,
TQ: BYADGI.
3D. INDRAMMA,
W/O GUDDAPPA KWATIMANI
ALIS YOGIKOPPA, AGE: 39 YEARS,
OCC: AGRICULTURE,
R/O: VADYANPUR,
POST: CHINNAMULGUND,
TQ: HIREKERUR,
DIST: HAVERI,
...RESPONDENTS
(BY SRI. AVINASH BANAKAR, ADVOCATE FOR R1, R2
AND R3(A TO D))
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF THE CPC., AGAINST THE JUDGMENT AND
ORDER DATED: 20.04.2012 IN EX. PET. NO.34/2011 ON THE
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CRP No. 1067 of 2012
FILE OF THE PRL. CIVIL JUDGE (JR.DN.) & I ADDL. J.M.F.C.
RANEBENNUR, EXECUTION PETITION FILED BY THE DECREE
HOLDER IS DISMISSED.
THIS PETITION IS COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
The present petition is filed aggrieved by the order
dated 20.04.2012 passed in Ex. No.34/2011 on the file of
the Principal Civil Judge (Jr. Dn.) & I Additional JMFC,
Ranebennur.
2. The petitioner-tenant is the decree holder. He had
filed O.S. No.104/1974 seeking the relief of permanent
injunction against the defendants. That suit came to be
decreed on 22.06.1974. Thereafter, the sons of original
defendants in O.S. No.104/1974 filed O.S. No.118/2011
seeking for a declaration that the judgment and decree in
O.S. No.104/1974 is not binding on them and that the sale
deed executed by their father in favour of plaintiff in O.S.
No.104/1974 is also not binding. That suit came to be
allowed on 28.09.2006. Aggrieved, thereby the defendants
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therein i.e. petitioners herein filed R.A. No.89/2006 which
came to be allowed on 15.09.2010. Thereafter, the plaintiff
had carried the matter further in a second appeal by filing
R.S.A. No.5953/2010 before this Court which came to be
dismissed on 04.04.2015. Against the judgment and decree
in R.S.A. No.5953/2010, the plaintiffs had filed S.L.P.
No.3303/2015. On 05.09.2017, the Hon'ble Apex Court
passed an order wherein the plaintiffs were granted four
weeks' time to cure the defects pointed out by the Registry
in office report, otherwise the Special Leave Petition shall
stand dismissed without further reference to the Court. It
was also ordered that any application for restoration of the
SLP shall be entertained only on payment of costs of
Rs.1,000/- to be paid to the Supreme Court Legal Services
Committee. It appears that till now, no application is filed
seeking restoration of SLP.
3. In the year 2011, the execution petition is filed by
the petitioners herein, who are the decree holders in O.S.
No.104/1974, seeking execution of the decree. By the order
impugned, the Trial Court had dismissed the application filed
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by the decree holders. The reasons that are given by the
Court are that the decree holders have not proved the fact
that on which date, after 15.09.2010, the present judgment
debtors were dispossessed. In the considered opinion of the
Court, in view of the subsequent passing of the judgment
and decree in O.S. No.118/2001 and R.A. No.89/2006, after
passing of the judgment in O.S. No.104/1974, the decree
holder has not proved the relief to be granted as sought by
him. The Executing Court comes to the conclusion that there
is no material on record to show that the judgment debtor is
in possession of the property and further Court observes that
it is the admission of the decree holder himself that there is
no obstruction at all by judgment debtor No.1. The Court
observes when there is no obstruction at all by judgment
debtor No.1, then what is the reason for filing this
application is not mentioned. The Court also observes that in
R.S.A. No.5953/2010, the High Court had rejected the stay
application filed by the judgment debtor, but the decree
holder has not produced the order rejecting stay application
by the High Court as such, the Court is of the view that the
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decree holder has not made out sufficient grounds to grant
the relief as sought for in the present petition and
accordingly dismissed the petition.
4. Learned counsel appearing for the petitioner
submits that the reasoning that is given by the Court while
dismissing the execution petition filed by the decree holder is
contrary to law as well as contrary to the fact. When the suit
filed by him is decreed by granting the relief of permanent
injunction, the Court has given a categorical finding that the
petitioner is in possession of the property. When the other
suit i.e. O.S. No.118/2011 was decreed on 28.09.2006 and
immediately R.A. No.89/1996 was filed and that came to be
allowed on 15.09.2010. The Court gave a finding that in
regular second appeal the stay application was dismissed
and the same is not filed before the Court. That cannot be a
reason for the Court to hold that the peititoner is not entitled
for the relief. Learned counsel submits that the Court has
misdirected itself in giving such a finding. Further learned
counsel submits that in the light of the subsequent dismissal
of regular second appeal and also the SLP not being
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restored, which is of the year 2015, he submits that as the
decree that is passed in his favour is staring at the
defendants, they are bound by the said decree which has
attained finality and it is the duty of the Court to execute the
same.
5. Learned counsel appearing for the judgment
debtor submits that he is yet to get instructions from the
counter-part appearing before the Apex Court. He submits
that the said judgment is not binding on them as they were
not parties to the judgment; in fact, it is the father of the
judgment debtors, who is the defendant in the suit. It is
submitted that the Court had rightly considered all these
aspects and particularly, the fact that there is no evidence to
show that they are possession of the property and rightly
dismissed the petition and there is no ground made out to
interfere with the well considered order passed by the Court.
6. Having heard the learned counsel on either side,
perused the material on record.
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7. The undisputed facts of the case are that O.S.
No.104/1974 is decreed on 22.06.1974, granting a decree of
injunction in favour of the petitioners herein and against the
father of respondents or anybody representing through him.
It is also undisputed that the declaration suit that is filed by
the respondents herein as of now stands dismissed as the
Special Leave Petition, as per the case status, as on today, is
not restored right from 2015. Without going into any of the
merits of the matter, there is no hurdle for the Trial Court to
execute the decree as that is the only judgment and decree
that remains to be there which is passed in O.S.
No.104/1974 dated 22.06.1974. In that view of the matter,
this Court is passing the following:
ORDER
i) The order impugned dated 20.04.2012 passed in
E.P. No.34/2011 by the Additional Civil Judge & II
Additional JMFC, Ranebennur, is set aside.
ii) The Trial Court shall consider and pass appropriate
orders on the application in E.P.No.34/2011 in
accordance with law within a period of three
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months from the date of receipt of a copy of the
order.
iii) Without waiting for further notice from the
Court, the parties shall appear before the
Executing court on 25.11.2024.
iv) Accordingly, the writ petition stands allowed.
v) All pending I.As., in this petition shall stand
closed.
Sd/-
JUSTICE LALITHA KANNEGANTI
KMS
CT:BCK
