[Cites 4, Cited by 0]
Karnataka High Court
Sri.Rudraiah.C vs The State Of Karnataka on 6 March, 2026
-1-
WP No. 35598 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT PETITION No. 35598 OF 2024 (GM-CPC)
BETWEEN:
1. SRI.RUDRAIAH C.,
S/0 DHARMARAJ,
AGED ABOUT 59 YEARS,
R/AT No.14, 11TH CROSS,
SWIMMING POOL EXTENSION,
MALLESHWARAM,
BENGALURU-560 003.
...PETITIONER
(BY SRI NANJA REDDY P. N., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPTD., BY ITS SECRETARY,
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
VIKAS SOUDHA, BENGALURU 560 001.
Digitally
signed by
VINUTHA B S 2. BRUHAT BENGALURU MAHANAGARA PALIKE,
Location:
High Court of REPTD., BY ITS CHIEF COMMISSIONER,
Karnataka N.R.SQUARE, BENGALURU 560 002.
3. KARNATAKA SLUM DEVELOPMENT BOARD,
REPRESENTED BY ITS COMMISSIONER,
No.55, RISALDAR STREET,
SHESHADRIPURAM,
BENGALURU -560 020.
...RESPONDENTS
(BY SRI NEELAKANTAPPA K.PUJAR, HCGP FOR R1;
SRI K.V. BATHEGOWDA, ADVOCATE FOR R2;
SRI N. MANOHAR, ADVOCATE FOR R3)
-2-
WP No. 35598 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER PASSED IN EX.No.2857/2013 DATED
21/11/2024 (ANN-X) ON THE FILE OF THE XIX ADDL. CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CITY, AS THE SAME
IS ILLEGAL AND CONTRARY TO THE JUDGMENT AND DECREE
PASSED IN R.A.No.599/1980 DATED 09/12/1982 AND ALSO IN
VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND
CAV ORDER
Heard Sri P.N. Nanjareddy, learned counsel for the
petitioner, Sri Neelakantappa K. Pujar, learned High Court
Government Pleader for respondent No.1, Sri K.V. Bathegowda,
learned counsel for respondent No.2 and Sri N. Manohar,
learned counsel for respondent No.3.
2. This writ petition is filed by the decree holder challenging
the order dated 21.11.2024 passed in Ex. No.2857/2013 by the
XIX Additional City Civil & Sessions Judge at Bengaluru (for
short, 'the Execution Court').
3. The petitioner purchased two residential sites from Smt.
Lakshmamma. The properties are described as Site Nos.25 and
26, situated at 3rd Cross, Muneshwara Block, Palace Guttahalli,
-3-
WP No. 35598 of 2024
Bengaluru. Prior to the purchase of the sites by the petitioner,
the second respondent-BBMP attempted to form a road in the
sites in question on 01.12.1977. Aggrieved by the same, Smt.
Lakshmamma filed O.S. No.3046/1977 seeking a decree of
permanent injunction. The said suit came to be dismissed on
25.06.1979.
3.1 Thereafter, Smt. Lakshmamma filed R.A. No.599/1980.
The Appellate Court, by judgment dated 09.12.1982, allowed
the appeal and decreed the suit. The said judgment and decree
have attained finality. Subsequently, the petitioner purchased
the above two sites from Smt. Lakshmamma under a sale deed
dated 29.01.1993 and was put in possession of the properties.
3.2 Thereafter, the petitioner filed Execution No.1019/1997 to
execute the judgment and decree passed in R.A. No.599/1980.
In the said execution proceedings, the second respondent-
BBMP filed a memo on 16.06.1999 undertaking to provide an
alternative site at Malleshwaram. Based on the said
undertaking, the Executing Court closed the execution petition,
reserving liberty to the petitioner to initiate fresh execution
proceedings in the event the alternative site was not provided.
-4-
WP No. 35598 of 2024
Accordingly, the execution petition came to be closed on
17.06.1999.
3.3 The second respondent passed a resolution on
27.04.2000 to grant an alternative site. As the undertaking was
not complied with, the petitioner issued a legal notice on
26.07.2000 calling upon the second respondent to grant the
alternative site. In response, the second respondent, by
communication dated 17.08.2000, called upon the petitioner to
pay the difference in the amount towards the alternative site.
On 27.12.2000, the petitioner submitted a letter agreeing to
pay the difference amount for the allotment of the alternative
site.
3.4 In the meantime, the third respondent attempted to put
up construction on the alternative site. Aggrieved by the same,
the petitioner approached this Court in W.P. Nos.9916-
9917/2011. This Court granted an interim order directing that
the alternative site proposed for allotment to the petitioner be
kept vacant. Thereafter, this Court, by order dated 06.09.2013
disposed of the writ petitions, requiring the petitioner to file an
execution petition in terms of the order passed in Ex.
No.1019/1997.
-5-
WP No. 35598 of 2024
3.5 Pursuant thereto, the petitioner filed Ex. No.2857/2013
on 21.10.2013 seeking attachment of movables. The Executing
Court, however, dismissed Execution No.2857/2013 by order
dated 09.01.2017. The dismissal was challenged in Writ Petition
No.6352/2017. This Court, by order dated 09.10.2019, set
aside the order passed in the execution proceedings and
remanded the matter to the Trial Court.
3.6 Upon remand, the Execution Court again dismissed
Execution Petition No.2857/2013 as not maintainable by order
dated 12.06.2020. The said order was challenged in Writ
Petition No.9062/2020. This Court, by order dated 27.07.2023,
set aside the said order and remanded the matter to the Trial
Court. Thereafter, the Execution Court once again dismissed
the execution petition by order dated 21.11.2024 on the
ground that the judgment-debtor had not violated the
judgment and decree passed in R.A. No.599/1980.
3.7 Aggrieved by the said order, the petitioner is before this
court.
4. Sri P.N. Nanjareddy, learned counsel appearing for the
petitioner, submits that O.S. No.3046/1977 came to be
dismissed, against which RA No.599/1980 was filed. The
-6-
WP No. 35598 of 2024
appellate court allowed the appeal by granting a decree of
permanent injunction restraining the defendants, their
workmen, contractors, or anybody acting on their behalf from
forming any drains on any portion of the suit sites bearing
Nos.25 and 26 (Corporation Nos.25/1 and 25/2).
4.1 Learned counsel further submits that the decree was
granted in the suit filed by Smt. Lakshmamma, the vendor of
the suit schedule properties to the petitioner. Upon purchase of
the suit schedule properties, the petitioner became entitled to
the benefit of the said decree. It is further submitted that when
Execution No.1019/1997 was filed, the second respondent-
BBMP filed a memo undertaking to provide an alternative site
at Malleshwaram, pursuant to which a resolution also came to
be passed in that regard.
4.2 It is submitted that the petitioner was called upon to pay
the difference in the amount towards the alternative site, to
which the petitioner had agreed. Accepting the undertaking
filed by the second respondent, the Execution Court closed the
execution proceedings with liberty to the petitioner to initiate
fresh execution proceedings in the event the alternative site
was not granted.
-7-
WP No. 35598 of 2024
4.3 It is further submitted that when the second respondent
failed to provide the alternative site, the petitioner filed
Execution No.2857/2013. The said execution petition was
dismissed thrice by the Execution Court and was restored on all
occasions by this Court in writ proceedings. It is contended that
the impugned order once again dismissing the execution
proceedings is unsustainable in law. The decree of the Court
cannot be allowed to remain merely on paper without being
executed.
5. Per contra, Sri K.V. Bathegowda, learned counsel
appearing for respondent No.2, submits that the decree
obtained by the predecessor-in-title of the petitioner does not
enure to the benefit of the petitioner. It is contended that the
decree loses its enforceability after the transfer of the property
in favour of the petitioner.
5.1 Learned counsel further submits that the decree was
obtained by suppressing the earlier rejection of the suit in O.S.
No.1067/1980 filed by Smt. Lakshmamma, the predecessor-in-
title of the petitioner, against two individuals, wherein the suit
for mandatory and permanent injunction came to be rejected.
-8-
WP No. 35598 of 2024
5.2 It is also submitted that the existence of the sites in
question has not been established. Therefore, the Execution
Court was justified in rejecting the execution petition. Learned
counsel further submits that the petitioner cannot seek
execution of the undertaking in order to insist upon the
allotment of an alternative site.
5.3 With these submissions, learned counsel prays for
dismissal of the writ petition.
6. I have considered the submissions made by learned
counsel for the parties and perused the writ papers.
7. The sequence of dates and events is not disputed by the
BBMP. However, the BBMP contends that the existence of the
two sites was doubted in O.S. No.1067/1980 filed by Smt.
Lakshmamma, the predecessor-in-title of the petitioner. It is
contended that, in view of the said order passed by the Trial
Court, the judgment and decree sought to be executed are not
enforceable.
7.1 It is further contended that the said order has attained
finality and that the decree was obtained by suppressing the
earlier order passed in O.S. No.1067/1980. The contentions
-9-
WP No. 35598 of 2024
raised by the respondent-BBMP are not tenable. O.S.
No.1067/1980 was filed by Smt. Lakshmamma against two
individuals seeking a decree of mandatory and permanent
injunction.
7.2 The Trial Court, while considering the prayer for
mandatory injunction directing removal of the construction put
up by the defendants therein on the property of Smt.
Lakshmamma, rejected the suit on the ground that the portion
of the property on which the construction had been carried out
was not identifiable and, therefore, no order of injunction could
be granted. The Trial Court further observed that the plaintiff
therein had not adduced evidence to establish the existence of
the properties.
7.3 The findings recorded in the said judgment are neither
relevant nor of any consequence in the present proceedings.
The order passed in O.S. No.1067/1980 cannot be relied upon
by the BBMP as a defence to avoid compliance with, or to
object to the execution of, the judgment and decree passed in
R.A. No.599/1980. The decree in question is against the BBMP.
The BBMP has not challenged the said decree, and the same
has attained finality.
- 10 -
WP No. 35598 of 2024
7.4 After the decree was granted, the decree holder
transferred the property in favour of the petitioner under a
valid sale deed dated 29.01.1993.
7.5 It is a settled position of law that any decree attached to
a property, upon its transfer, enures to the benefit of the
subsequent purchaser. In view of the said legal position, the
contention that the judgment and decree are person-specific
and that, upon transfer of title, the benefit of the decree would
not pass to the purchaser is unacceptable and contrary to the
settled principles of law.
7.6 This contention is also not available to the BBMP for the
further reason that, in the execution proceedings initiated by
the petitioner in Ex. No.1019/1997, the BBMP filed a memo
undertaking to grant an alternative site measuring 45 × 60 feet
at 13th Cross, Malleshwaram, Bengaluru, and prayed for
closure of the execution proceedings. Pursuant thereto, the
BBMP passed a resolution dated 27.04.2000 in this regard. The
Trial Court, recording the said undertaking, closed the
execution proceedings with liberty to the petitioner to initiate
fresh execution proceedings in the event the undertaking was
not complied with.
- 11 -
WP No. 35598 of 2024
7.7 It is submitted that the documents on record disclose that
the BBMP forwarded the resolution for allotment of the
alternative site to the Government. The Government, by order
dated 20.08.2005, rejected the proposal on two grounds:
firstly, relying upon the order passed in O.S. No.1067/1980;
and secondly, by placing reliance on judgments of other High
Courts holding that a decree of permanent injunction cannot be
executed by a subsequent purchaser.
7.8 In light of the rejection, the petitioner agitated his right
multiple times in the execution court as well as in this court.
This court on 30.05.2023 in WP No.9062/2022, ordered the
Joint Commissioner to conduct survey/spot inspection to find
out the existence and extent of the properties in question. A
report was submitted stating that no such properties existed
and the people of the locality had stated that the road has
existed from the past 60 years.
7.9 The BBMP has placed strong reliance on the report said to
have been prepared during the spot inspection. Though the
report bears the signature and stamp of the officer concerned,
the requisite signatures of the people of the locality are
conspicuously missing. In such circumstances, the so-called
- 12 -
WP No. 35598 of 2024
joint inspection report lacks credibility and cannot be relied
upon.
7.10 The stand taken by the BBMP is wholly unrealistic. When
the formation of the road in the sites in question is stated to
have taken place during the period 1977-1982, the
identification of the sites after nearly five decades is difficult to
conceive. The stand taken by the BBMP is not only
unreasonable but practically impossible. This Court is unable to
appreciate the reliance placed by the BBMP on the alleged spot
inspection, particularly when the BBMP had filed a memo before
the Execution Court as early as in 1999 undertaking to provide
an alternative site. Further, the BBMP had passed a resolution
on 27.04.2000 to grant the alternative site and had also called
upon the petitioner to pay the difference amount as early as on
17.08.2000.
7.11 If, in fact, the sites were not in existence, there was no
necessity for the BBMP to file such an undertaking, pass a
resolution for allotment of an alternative site, seek approval of
the Government, and determine the difference amount payable
by the petitioner. The plea regarding the non-existence of the
sites in question is contradictory to the actions of the
- 13 -
WP No. 35598 of 2024
authorities. The stand taken by the BBMP that the sites do not
exist is in direct conflict with its own undisputed actions on
record.
7.12 At this distance of time, nearly fifty years after the
alleged formation of the road, any dispute regarding the
existence of the sites cannot be realistically examined. The very
circumstances only expose the lack of merit in the stand taken
by the BBMP. The BBMP, being a public authority, is expected
to take a stand that is supported by the record and is
reasonable.
8. Now coming to the correctness of the order passed by the
Execution Court, the Execution Court has formulated the
following two points for consideration:
"1. Whether the petitioner/decree holder proves that
respondent No.2/BBMP requires to be directed to grant
alternative site measuring 45 feet x 60 feet in favour of
petitioner as prayed?
2. What order?"
8.1 The Execution Court held that the decree of bare
injunction granted was a decree in personam and would not run
with the land, and therefore the petitioner cannot execute such
a decree. It was further held that the petitioner is not a decree
- 14 -
WP No. 35598 of 2024
holder. The said finding is contrary to the law laid down by the
Hon'ble Supreme Court in Vaishno Devi Constructions and
another vs. Union of India and others [(2022) 2 SCC
290], wherein it has been held as under:
"26.....The High Court gave liberty to the
transferees to avail of Section 146 if they did not fall
within the provisions of Order 21 Rule 16 CPC and,
thus, would cover transferees of a property after the
decree was passed. In this behalf the learned Judge
disagreed with an earlier judgment of the Madras High
Court in K.N. Sampath Mudaliar v. Sakunthala Ammal
opining that Section 146 CPC could not have the effect
of overriding Order 21 Rule 16 CPC. The Law
Commission agreed with the view taken in the former
judgment (which was delivered at a later point of
time) and further noted that this view was supported
by the High Courts of Andhra Pradesh, Patna and
Kerala as well. Thus, the Law Commission
recommended amending Order 21 Rule 16 to clarify
that it does not affect the provisions of Section 146
and that a transferee of rights in the subject-matter of
the suit can obtain execution of a decree without
separate assignment of the decree. The objective
appears to be to not have multifarious proceedings to
determine the issue of assignment, but to determine
the issue of assignment in the execution proceedings
itself.
27. In the conspectus of the aforesaid we are of
the view that the objective of amending Order 21 Rule
16 CPC by adding the Explanation was to deal with the
scenario as exists in the present case, to avoid
separate suit proceedings being filed therefrom and to
that extent removing the distinction between an
assignment pre the decree and an assignment post
the decree. Thus, what has been discussed even in the
judgment in Jugalkishore Saraf as a view based on the
equitable principle was sought to be incorporated in
Order 21 Rule 16 CPC by adding the Explanation,
something which had not been done earlier. Once the
legislative intent is clear, and the law is amended,
then the earlier position of law cannot be said to
- 15 -
WP No. 35598 of 2024
prevail post the amendment and it is not in doubt that
the present case is one post the amendment.
28. We may further add that while considering
the divergent views of the High Courts, the Law
Commission took note of the fact that two different
interpretations of Jugalkishore Saraf had been
adopted. Thus, the Law Commission really sought to
clarify the legal position so that the conflicting
interpretations of the Supreme Court judgment would
not survive. The Explanation clearly stipulates that
nothing in Order 21 Rule 16 CPC would affect the
provisions of Section 146 and the transferee of the
right in property which is subject-matter of a suit may
apply for execution of the decree without separate
assignment of the decree as required by law. No doubt
the appellants are not parties in the suit proceedings
but they claim as aassignees of the decree-holder."
8.2 The Execution Court has further recorded that there is no
evidence of disobedience of the judgment and decree. It has
also observed that it is not clear whether the formation of the
road was undertaken by the BBMP or the BDA. The Execution
Court has further held that the prayer in the execution petition
seeking grant of an alternative site is not maintainable. It is
also observed that the filing of the suit in O.S. No.1067/1980
by the petitioner's vendor, Smt. Lakshmamma, which directly
concerns the properties in question, was not disclosed. On that
basis, the Execution Court has further held that the suit itself
was not maintainable.
- 16 -
WP No. 35598 of 2024
8.3 The above findings are not sustainable. The Hon'ble
Supreme Court, in the case of Meenakshi Saxena and
another vs. ECGC Limited and another [(2018) 7 SCC
479], has held as under:
"....17. The whole purpose of execution
proceedings is to enforce the verdict of the court.
Execution court while executing the decree is only
concerned with the execution part of it but nothing
else. The court has to take the judgment in its face
value. It is settled law that executing court cannot go
beyond the decree. But the difficulty arises when there
is ambiguity in the decree with regard to the material
aspects. Then it becomes the bounden duty of the
court to interpret the decree in the process of giving a
true effect to the decree. At that juncture the
executing court has to be very cautious in
supplementing its interpretation and conscious of the
fact that it cannot draw a new decree. The executing
court shall strike a fine balance between the two while
exercising this jurisdiction in the process of giving
effect to the decree."
8.4 The said principle has been reiterated in Sanwarlal
Agrawal and others vs. Ashok Kumar Kothari and others
(AIROnline 2023 SC 139).
8.5 In the light of the above enunciation of law by the Hon'ble
Supreme Court regarding the scope of interpretation by an
Execution Court, the findings recorded by the Execution Court
that there is no proof of disobedience, that there is no proof of
formation of the road by the BBMP, that there is no evidence
- 17 -
WP No. 35598 of 2024
regarding the existence of the property, that the suit itself was
not maintainable, and that the decree cannot be executed on
account of suppression of the order in O.S. No.1067/1980, are
clearly beyond the scope of the powers of the Execution Court.
The extent of interpretation permissible to an Execution Court
arises only in cases where there is ambiguity in the decree. In
the present case, we find that there is no ambiguity in the
decree.
9. The Execution Court has further referred to the spot
inspection report. The said report was prepared by the
engineers of the BBMP, who were also examined before the
Execution Court. During the examination of CW.2, the Joint
Commissioner, West Zone, BBMP, Malleshwaram, it was
admitted that a road had been formed on the suit property.
CW.2 has further stated that the neighbouring residents
reported that the road had been in existence for the last 60
years and that no encroachment was found during the
inspection. This finding has been accepted by the Trial Court.
9.1 When it is alleged that as far back as in 1977 the BBMP
attempted to form roads on the sites in question, and a decree
of injunction was granted in the year 1982, the subsequent
- 18 -
WP No. 35598 of 2024
conduct of the BBMP assumes significance. When execution of
the said decree was initiated, the BBMP filed a memo
undertaking to provide an alternative site.
9.2 The very act of filing an undertaking to grant an
alternative site itself indicates that the BBMP had formed a road
on the suit properties. If the roads had not been formed on the
said sites, there would have been no necessity for the BBMP to
file such an undertaking before the Court. The matter did not
end with the filing of the undertaking.
9.3 The BBMP has also passed a resolution to grant an
alternative site, and the recommendation of the Commissioner
was forwarded to the Government for approval. If the road had
not been formed on the sites in question, the Commissioner,
BBMP, would not have recommended the grant of an
alternative site, nor would a resolution have been passed to
that effect.
9.4 Further developments have also taken place. The
petitioner was called upon to pay the difference in the amount
towards the alternative site, to which the petitioner had agreed.
It is only when the resolution of the BBMP was placed before
the Government for consideration that the denial commenced.
- 19 -
WP No. 35598 of 2024
However, it is significant to note that the decree passed against
the BBMP has remained unchallenged.
9.5 Once there exists a decree which is sought to be
executed, it is the duty of the Execution Court to ensure its
enforcement. The Execution Court cannot go into questions
regarding the existence of the property forming the subject
matter of the decree, the maintainability of the suit in which
the decree was passed, or other such issues as enumerated by
the Hon'ble Supreme Court in the judgments referred to supra.
9.6 It appears that the Execution Court has misdirected itself
in referring to the order passed in O.S. No.1067/1980. The said
suit was filed by Smt. Lakshmamma, the vendor of the
petitioner, against two individuals seeking injunction in respect
of the alleged encroached construction made by them. The Trial
Court, observing that the portion of the encroachment was not
established, declined to grant the injunction.
9.7 The order passed in O.S. No.1067/1980 has no bearing
on the decree sought to be executed in the present
proceedings. Moreover, the said order neither has any
relevance to the decree in question nor does it record any
- 20 -
WP No. 35598 of 2024
finding contradictory to the findings recorded in the decree
sought to be executed.
9.8 Even assuming that there was any such contradiction,
nothing prevented the BBMP from challenging the decree in
appropriate proceedings. Having failed to exercise its right of
appeal, it is not open to the BBMP at this stage to question the
correctness of the decree in execution proceedings.
10. The executing Court is required to record evidence and a
finding regarding the disobedience of the order of injunction
and the formation of a road on the sites in question. In view of
the other considerations taken into account by the executing
Court, neither evidence has been recorded nor any finding
rendered with regard to the violation of the injunction order
and the formation of a road in breach thereof. Unless such a
finding is recorded and the decree is executed, the decree
cannot be permitted to remain merely on paper, thereby
defeating its purpose.
11. The prayer of the petitioner seeking a direction to
respondent No.2-BBMP to allot an alternative site in terms of
its undertaking cannot be entertained. When the execution
proceedings were closed on 17.06.1999 on the basis of the
- 21 -
WP No. 35598 of 2024
undertaking, liberty was granted to the petitioner to initiate
fresh execution proceedings in the event of non-compliance.
The petitioner has availed the said liberty and initiated the
present execution proceedings. The undertaking was filed in the
form of a memo, which by itself is not executable.
12. In view of the foregoing reasons, the following;
ORDER
(i) Writ petition is allowed.
(ii) The order dated 21.11.2024 passed in
Ex.No.2857/2013 on the file of XIX Additional City
Civil and Sessions Judge, Bengaluru, is hereby set
aside.
(iii) The execution No.2857/2013 is restored to file for
fresh consideration subject to the observations
made hereinabove.
(iv) No order as to cost.
Sd/-
(K. V. ARAVIND)
JUDGE
DDU
