[Cites 3, Cited by 0]
Karnataka High Court
Sri D S Kashinath vs Sri T K Jayaprakash on 2 December, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
-1-
NC: 2025:KHC:50201
WP No. 1623 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
WRIT PETITION NO. 1623 OF 2021 (GM-CPC)
BETWEEN:
SRI D.S. KASHINATH
S/O LATE SHIVABASAIAH
AGE ABOUT 65 YEARS
ANNAPOORNESHWARI
MESS SANJEEVAMMA BUILDING
Y.T. ROAD, THURUVEKERE TOWN
TUMKUR DISTRICT - 572 227.
...PETITIONER
(BY SRI. NAVEEN J.N, ADV.)
AND:
SRI T.K. JAYAPRAKASH
S/O LATE T.P. KARIYAPPA
AGE ABOUT 63 YEARS
RANGANATHA NILYA
2ND BLOCK, 2ND CROSS
1ST MAIN KUVEMPUNAGARA
Digitally signed TUMKUR, PRESENTLY RESIDING
by NANDINI M AT TANDAGA VILLAGE AND HOBLI
S THURUVEKERE TALUK
Location: HIGH TUMKUR DISTRICT - 572 227.
COURT OF
KARNATAKA ...RESPONDENT
(BY SRI M.B. CHANDRA CHOODA, ADV.)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION PRAYING TO QUASH THE IMPUGNED ORDER PASSED
BY THE LEARNED CIVIL JUDGE AND JMFC THURUVEKERE ON IA NO.5
IN EX NO.26/2018 DTD.13.1.2021 MARKED AT ANNEXURE-F TO THE
W.P.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
-2-
NC: 2025:KHC:50201
WP No. 1623 of 2021
HC-KAR
ORAL ORDER
1. The petitioner is before this Court in this writ
petition filed under Article 227 of the Constitution of India with
a prayer to set aside the order dated 13.01.2021 passed on
I.A.No.V in Ex.P.No.26 of 2018 by the Court of Civil Judge &
JMFC, Turuvekere.
2. Heard the learned counsel appearing for the parties.
3. The respondent herein had filed O.S.No.193 of 2013
before the jurisdictional civil Court, Turuvekere against the
petitioner herein seeking the relief of eviction and recovery of
arrears of rent. The said suit was decreed by the trial Court by
judgment and decree dated 14.08.2018. The Decree Holder has
initiated execution proceedings of the said decree in Ex.P.No.26
of 2018 and in the said proceedings the Decree Holder has filed
I.A.No.V under Section 151 of CPC for issuing delivery warrant
in respect to the suit schedule property and permit to break
open the lock of the house. The said application was allowed by
the executing Court vide the order impugned and being
NC: 2025:KHC:50201
HC-KAR
aggrieved by the same, the Judgment Debtor is before this
Court.
4. Learned counsel for the petitioner having reiterated
the grounds urged in the petition submits that the petitioner's
wife Smt. T.K. Lalithamma, who is the sister of respondent
herein has filed O.S.No.8 of 2013 seeking the relief of partition
and separate possession of the joint family property. The
property which is subject matter of the dispute in the present
petition is part and parcel of suit properties in O.S.No.8 of
2013. Therefore, the executing Court was not justified in
allowing I.A.No.V. He accordingly, prays to allow the petition.
5. Per contra, learned counsel for respondent has
argued in support of the impugned order. He submits that
I.A.No.V was not even opposed by the petitioner by filing
objection. Though the petitioner has filed regular appeal
against the judgment and decree passed in O.S.No.193 of
2013, no interim order has been granted in the said appeal and
therefore the executing Court was fully justified in allowing
I.A.No.V. The petitioner is a chronic defaulter in payment of
NC: 2025:KHC:50201
HC-KAR
rent and for the last four years he has not deposited / paid the
damages in terms of decree passed in O.S.No.193 of 2013.
Accordingly, he prays to dismiss the petition.
6. It is not in dispute that petitioner herein has
suffered a decree in O.S.No.14.08.2018 wherein he was
directed to hand over vacant possession of the suit schedule
property within a period of 2 months from the date of decree. It
is also not in dispute that the regular appeal filed by the
petitioner herein in R.A.No.16/2018 challenging the judgment
and decree passed in O.S.No.193 of 2013 has been dismissed
and the judgment and decree dated 14.08.2018 passed in
O.S.No.193 of 2013 has attained finality. The executing Court,
which is bound by the decree in O.S.No.193 of 2013, has
rightly allowed I.A.No.V. Merely for the reason that petitioner's
wife has filed a separate suit seeking partition and separate
possession of the joint family property and in the said property,
the property in dispute in the present proceedings is also
subject matter, the same cannot be a ground to stall the
execution proceedings in Ex.P.No.26 of 2018.
NC: 2025:KHC:50201
HC-KAR
7. The material on record would go to show that the
executing Court had earlier issued delivery warrant on
10.10.2019 and 15.02.2020. However, the bailiff could not
execute the said delivery warrant and hand over physical
possession of the suit schedule property to the respondent
herein, since it was found that the petitioner who is the
Judgment Debtor had locked the scheduled premises and was
not available near the premises. It is under these
circumstances, the executing Court has allowed I.A.No.V and
has directed the office to issue delivery warrant in respect of
the suit schedule property and the Court bailiff is directed to
hand over the physical possession of the suit schedule property
to the Decree Holder by breaking open the lock of the property.
I do not find any illegality or irregularity in the said order
passed by the executing Court. Therefore, I am of the opinion
that this writ petition deserves to be dismissed.
8. Accordingly, the writ petition is dismissed.
This Court had directed the petitioner to deposit a sum of
₹.2,50,000/- while issuing notice to the respondent and
granting interim order.
NC: 2025:KHC:50201
HC-KAR
It is brought to the notice of this Court that petitioner has
complied the said order and the said amount of
₹.2,50,000 has been deposited by him before the executing
court. If that is so, the respondent - Decree Holder is at liberty
to withdraw the said amount before the executing Court by
filing necessary application.
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
NMS
List No.: 1 Sl No.: 21
