Karnataka High Court
Sri. Srinivasa Gowda vs Sri. Manjunath. N on 28 October, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
-1-
NC: 2025:KHC:42894
WP No. 29 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
WRIT PETITION NO. 29 OF 2023 (GM-CPC)
BETWEEN:
1. SRI SRINIVASA GOWDA
S/O THIMMEGOWDA
ELECTRICIAN
AGED ABOUT 57 YEARS
RESIDENT OF 1ST MAIN
1ST CROSS, RAJIV GANDHI NAGAR
LAGGERE, BENGALURU - 560 056.
2. SRI K. THIMMEGOWDA
S/O KEMPA THIMMAIAH
AGED ABOUT 86 YEARS
RETD. KIRLOSKAR EMPLOYEE
PARVATHINAGAR OPP
VIDHANA SUDHA LAYOUT
LAGGERE, BENGALURU - 560 056.
...PETITIONERS
(BY SRI PAWAN KUMAR, ADV., FOR
SRI H. DEVENDRAPPA, ADV.)
Digitally
signed by AND:
NANDINI M S
Location:
HIGH COURT SRI MANJUNATH. N
OF
KARNATAKA SINCE DECEASED BY LRS
1. SMT. ANUSUYA MANJUNATH
W/O LATE MANJUNATH N
AGED ABOUT 77 YEARS.
2. SMT. LATHA B
D/O LATE MANJUNATH N
W/O B. CHANDRASHEKAR
AGED ABOUT 48 YEARS.
RESPONDENTS 1 AND 2 ARE
R/AT 144, 14TH MAIN ROAD
-2-
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WP No. 29 of 2023
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KALIDASA LAYOUT
SRINAGAR, BENGALURU - 50.
SRI M. RAKESH
SINCE DECEASED BY HIS LRS
3. SMT. VAISHALI N
W/O LATE RAKESH
AGED ABOUT 32 YEARS
R/A NO.108, 4TH CROSS
BEHIND GANESHA TEMPLE
HEGANAHALLI CROSS
VISHWANEEDHAM POST
BANGALORE - 91.
...RESPONDENTS
(BY SRI HANUMANTHAPPA A, ADV.)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
PASSED IN EXECUTION PETITION NO. 2593/2011 DATED 27.10.2022
BY THE XIV ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE
VIDE ANNEXURE-E.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. The judgment debtors are before this Court in this
petition filed under Article 227 of the Constitution of India with
a prayer to set-aside the order dated 27.10.2022 passed in
Execution Petition No.2593/2021 by the Court of XIV Additional
City Civil and Sessions Judge, Bengaluru.
2. Heard the learned counsel for the parties.
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3. Respondents herein had filed OS No.8997/1998 before
the jurisdictional Civil Court at Bengaluru against the
petitioners herein seeking the relief of declaration of title,
possession and also for a mandatory injunction directing the
defendants to dismantle the unauthorised construction on the
schedule property. The said suit was decreed by judgment and
decree dated 26.11.2010 and the said judgment and decree
has attained finality. The decree holders have filed Execution
No.2593/2011 before the Trial Court to execute the decree in
OS No.8997/1998 dated 26.11.2010. In the said proceedings,
delivery warrant was issued which was returned with an
endorsement that when the suit schedule property was
inspected, it was found that measurement of the property is
East to West - 40 feet and North to South - 30 feet. Whereas in
the decree passed in the suit, it is mentioned that property
measures East to West 30 feet and North to South 40 feet.
Petitioners, therefore, had made a request before the Executing
Court to hold an enquiry and this request was rejected by the
Trial Court by the order impugned and delivery warrant was
reissued directing the bailiff to put the decree holders in
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possession of the property in terms of the decree. Being
aggrieved by the same, judgment debtors are before this
Court.
4. Learned counsel for the petitioners having reiterated the
grounds urged in the petition submits that since there is a
discrepancy in the measurement of the suit schedule property,
an enquiry is necessary to identify the property. The Trial Court
has failed to appreciate this aspect of the matter. Accordingly,
he prays to allow the petition.
5. Per contra, learned counsel for the respondents has
argued in support of the order impugned.
6. The respondents/decree holders are declared as the
absolute owners of the suit schedule property and the
defendants/judgment debtors, who are in possession of the
said property are directed to hand over vacant possession of
the suit schedule property after demolishing the unauthorised
construction put-up by them in the said property. Undisputedly,
the said judgment and decree has attained finality and the
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Regular First Appeal filed by the judgment debtors before this
Court has been dismissed.
7. There is a specific finding recorded by the Trial Court that
the defendants are in possession of the suit schedule property
of which the respondents are the lawful owners. The
discrepancy is with regard to the measurement of the site. It
appears that in the decree, measurement of the property is
mentioned as East to West 30 feet and North to South 40 feet.
The actual measurement of the property, when inspected, after
the delivery warrant was issued by Executing Court was found
to be East to West 40 feet and North to South 30 feet. It is not
in dispute that the boundaries of the property remain the same.
Therefore, there is no difficulty to identify the property. It is
trite that whenever there is any discrepancy with regard to the
measurement of the property, the boundaries will always
prevail. Since the property in question has been identified by its
boundaries, even at the time of spot inspection, which was held
after the delivery warrant was issued, I am of the opinion that
the Trial Court was fully justified in rejecting the prayer made
by the judgment debtors to hold an enquiry for the purpose of
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identification of the property. The decree holders, who have a
decree in their favour ever since the year 2010 are before the
Executing Court since the year 2011 and they are not in a
position to enjoy the fruits of the decree. Therefore, I am of the
opinion that the writ petition does not merit consideration.
Accordingly, the same is dismissed.
8. The Executing Court is directed to expeditiously dispose
off the Execution Petition on its merits.
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
DN
