Karnataka High Court
Sri B P Prakashmurthy vs Smt C L Annapoorna on 15 January, 2025
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
-1-
NC: 2025:KHC:1360
WP No. 23538 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 23538 OF 2019 (GM-CPC)
BETWEEN:
SRI B P PRAKASHMURTHY
S/O LATE PUTASWAMACHAR,
R/AT D.NO.318/D9,
D.SUBBAIAH ROAD,
DEVARAJA MOHALLA,
MYSURU-570 001.
...PETITIONER
(BY SRI.SANTHOSH KUMAR M.B., ADVOCATE)
AND:
1. SMT C L ANNAPOORNA
W/O K.SHEKAR,
R/AT D.NO.46/103,
III STREET, TATABAD
COIMBATORE-641 012
Digitally
signed by TAMIL NADU STATE.
VANAMALA
N
Location:
2. SRI.D.VENKATESH
HIGH S/O LATE D.SUBBAIAH,
COURT OF
KARNATAKA MAJOR
R/AT NO.D318, D.SUBBAIAH ROAD,
MYSORE-570 001.
3. SRI.M.B.DODDEGOWDA
S/O LATE M.D.BYREGOWDA,
MAJOR,
R/AT NO.318,
-2-
NC: 2025:KHC:1360
WP No. 23538 of 2019
D.SUBBAIAH ROAD,
MYSORE-570 001.
...RESPONDENTS
(BY SRI.S.A. MARUTI PRASAD., ADVOCATE FOR R1;
VIDE ORDER DATED 08.01.2024
PETITIONER AGAINST R2 AND R3 ARE DISMISSED)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED BY THE LEARNED PRINCIPAL SENIOR
CIVIL JUDGE AND CJM AT MYSORE ON THE
APPLICATION FILED UNDER ORDER 26 RULE 9 READ
WITH 151 OF CPC IN EXECUTION PETITION NO.41/2007
DATED 22.04.2019 VIDE AT ANNX-C.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE
THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD
ORAL ORDER
The petitioner is a judgment debtor in
Execution No.41/2007 on the file of the Principal
Senior Civil Judge and CJM, Mysuru ['the executing
Court']. The petitioner is aggrieved by the executing
Court's order dated 22.04.2019, and the executing
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Court by this impugned order has rejected the
petitioner's application under Order XXVI Rule 9 of
the Code of Civil Procedure [CPC]. The petitioner has
filed this application to appoint the jurisdictional
ADLR to visit the suit property viz., property bearing
Door No.318/D, D. Subbaiah Road, Devaraj Mohalla,
Mysuru measuring East to West 48 feet and North to
South 12 ½ feet and file a Report on the identity of
the property referring to the City Survey Records
including the relevant PT Sheet.
2. The proceedings in Execution No.41/2007
are for execution of the decree in O.S.No.530/1998.
The executing Court has rejected this application on
two propositions. The executing Court has first
reasoned that the petitioner, who did not contest the
suit in O.S.No.530/1998 [a suit for possession], has
availed the remedy under Order IX Rule 9 of CPC in
Misc. No.48/2007 which is dismissed and the appeal
as against such order in Misc. appeal No.30/2012 is
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also dismissed. The executing Court has next
reasoned that the petitioner has sued the first
respondent in O.S.No.1571/2007 for permanent
injunction regarding the property bearing No.318/D9
of D. Subbaiah Road, Devaraj Mohalla, Mysuru and
that such suit is also dismissed. The executing Court
has also opined that it is bound by the terms of the
decree and it cannot go beyond the terms of the
decree.
3. Sri S.A. Maruthi Prasad, the learned
counsel for the first respondent, submits that after
dismissal of the Misc. appeal No.30/2012 the
petitioner has filed Civil Revision Petition in CRP
No.494/2015, and this revision petition is also
dismissed. Further the learned counsel submits that
the petitioner's suit in O.S.No.1257/2008 for
declaration that the judgment and decree in
O.S.No.530/1998 is not binding has been dismissed
both by the original Court and first appellate Court
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with this Court dismissing the corresponding second
appeal in RSA No.137/2018.
4. Sri Santhosh Kumar M.B., the learned
counsel for the petitioner, proposes to contend that
the suit property [in No. 318/D] is distinct from the
property No.318/D9 and that the first respondent
under the guise of the executing decree for
possession of the suit property is trying to take
possession of the property in No.318/D9, and
therefore, the application is well founded. The learned
counsel proposes to emphasize that a decree can only
be executed for the property to which it relates and
not otherwise.
5. However, the learned counsel cannot
persuade this Court to opine that the question of
identity was not examined either in the suit in
O.S.No.1257/2008 or in the suit in
O.S.No.1571/2007. If the question of identity is
indeed adjudicated, as it should be in the aforesaid
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suits, the petitioner cannot re-agitate the same issue
in presenting an application to appoint a
Commissioner in the present execution proceedings.
As such, this Court does not find any reason to
interfere with the impugned order, and the petition
therefore stands rejected.
Sd/-
(B M SHYAM PRASAD)
JUDGE
SA
ct:sr
