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Karnataka High Court
Harijana Sanna vs Sri Kuppunda S Appaiah @ Vittala on 25 March, 2026
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WP No. 17552 of 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO. 17552 OF 2022 (GM-CPC)
BETWEEN:
HARIJANA SANNA.
H.S. BORAMMA.
BOTH ARE SINCE DECEASED BY HIS LRS.
1. SMT. H.S.PARVATHY,
W/O PUTTAIAH,
AGED ABOUT 73 YEARS,
R/AT CHERAMBANE VILLAGE,
BHAGAMANDALA, MADIKERI TALUK,
KODAGU DISTRICT-571247.
2. SMT. H.S.JAYAMMA @ SUMA,
Digitally signed
by DEVIKA M W/O PREM,
Location: HIGH AGED ABOUT 71 YEARS,
COURT OF R/AT VIJAYA BANK, BALELE VILLAGE,
KARNATAKA VIRAJPET TALUK,
KODAGU DISTRICT-571218.
3. SMT. H.S.MUNIYAMMA,
W/O SANNAPPA,
AGED ABOUT 59 YEARS,
R/AT NANGALA VILLAGE,
VIRAJPET TALUK,
KODAGU DISTRICT-571218.
...PETITIONERS
(BY SRI. SACHIN B S., ADVOCATE)
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AND:
1. SRI. KUPPUNDA S. APPAIAH @ VITTALA,
S/O LATE SUBBAIAH,
AGED ABOUT 73 YEARS,
R/AT NANGALA VILLAGE,
VIRAJPET TALUK,
KODAGU DISTRICT-571218.
2. SRI. GUDDANDA K. BJEEMAIAH,
S/O LATE CARIAPPA,
AGED ABOUT 61 YEARS,
R/AT NANGALA VILLAGE,
VIRAJPET TALUK,
KODAGU DISTRICT-571218.
...RESPONDENTS
(BY SRI. RAJESH P.L., ADVOCATE FOR R1;
R2 - SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTUION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 14.09.2021 IN EXECUTION CASE
NO.2/2015 ON THE FILE OF THE COURT OF PRINCIPAL CIVIL
JUDGE, VIRAJPET, AS PER ANNEXURE-A AND CONSEQUENTLY
ALLOW THE PETITION FILED BY THE PETITIONER UNDER
ORDER 21 RULE 11 READ WITH RULE 32 OF THE CODE OF
CIVIL PROCEDURE AS PRAYED FOR.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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WP No. 17552 of 2022
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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
This writ petition is filed challenging the order dated
14.09.2021 passed in Execution Case No.2/2015 by the
Principal Civil Judge, Virajpet (for short 'Executing Court').
2. Sri B.S. Sachin, the learned counsel for the
petitioners submits that the petitioner filed a suit for permanent
injunction against the respondents, which was dismissed and
the Appellate Court in R.A.No.32/2006 decreed the suit, which
was confirmed in R.S.A.No.2138/2008. It is submitted that the
petitioner filed execution petition in Ex.Case No.2/2015 seeking
specific prayer that the judgment-debtors have not obeyed the
Court order and caused mischief and obstruction, which has to
be removed and direction has to be given to the judgment-
debtors to comply the judgment. The Executing Court under
the impugned order closed the execution petition by recording
an incorrect finding that the petitioner has failed to approach
the police authorities indicating the obstruction and further
finding that the petitioner has to file a suit for recovery of
possession. It is submitted that it is the specific case of the
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plaintiff that after the judgment and decree by the competent
Court, there is a clear presumption that the said decree is
passed by considering the lawful possession of the suit
schedule property by the plaintiff and in violation of the same,
if the judgment-debtors obstruct the right of pathway, then the
Executing Court is bound to exercise its power under Order 21
Rule 32(5) of the Code of Civil Procedure, 1908 (for short
'CPC'). However, the Executing Court has failed to consider the
said aspect and closed the execution petition. In support of his
contentions, he placed reliance on the judgment of this Court in
the case of KAREPPA v. TAHASILDAR AND OTHERS
reported in 2016 3 KCCR 2251 and the judgment of the
Punjab and Haryana High Court in the case of SANJU @
PAYAL AND ANOTHER v. KAMLESH AND ANOTHER
reported in 2025 Supreme (P & H) 1554 and seeks to allow
the petition.
3. Per contra, Sri Rajesh P.L., the learned counsel for
respondent No.1 supports the order of the Executing Court and
submits that the judgment-debtors have clearly deposed in the
execution proceedings that they have not encroached or
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causing any obstruction to the decree holder as contended. It
is submitted that the Executing Court considering the evidence
of R.W.1 and the documents at Ex.D.1 and Ex.D.2 i.e., sketch
and RTC, clearly recorded the finding that the petitioner is
required to file a suit for possession and recover possession
from the person, who is in possession and the said finding is
strictly in consonance with the material on record and hence,
he seeks to dismiss the petition.
4. I have heard the arguments of the learned counsel
for the petitioners, the learned counsel for respondent No.1 and
meticulously perused the material on record.
5. The petitioner filed O.S.No.4/1997 seeking for the
following relief:
"a) For a permanent injunction restraining the
defendants, their men, agents, labourers or any
person/persons claiming through them from
trespassing or interfering or creating mischief or
putting or destroying the fence or cultivations or
blocking the path way leading towards the residential
house and Government well in the suit schedule
properties or disturbing the peaceful possession and
enjoyment of the schedule property."
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6. The said suit was contested. In the said
proceedings, the Trial Court appointed the Court Commissioner
and he submitted the report showing the factual aspects as per
the memo of instructions given by the parties. After detailed
adjudication, the suit in O.S.No.4/1997 came to be dismissed
on 28.03.2006. Being aggrieved, the petitioner filed
R.A.No.32/2006, which came to be allowed vide judgment and
decree dated 12.09.2008 by the Civil Judge (Sr. Dn.), Virajpet
(for short 'Appellate Court'). The Appellate Court allowed the
appeal and decreed the suit as prayed for. The respondent
No.1 challenged the judgment and decree of the Appellate
Court before this Court in R.S.A.No.2138/2008. This Court vide
order dated 23.09.2011 dismissed the RSA. The suit of the
petitioner came to be decreed as prayed for. The petitioner
filed execution petition in Ex.Case No.2/2015 alleging that the
judgment-debtors are not obeying the decree granted by the
Court and causing mischief and obstruction, which has to be
removed and direction has to be issued to the judgment-
debtors to comply the judgment. The Executing Court
considered the contentions of both the parties under the
impugned order and the execution petition was dismissed. The
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Executing Court has considered various aspects in paragraph
Nos.10 and 11 and comes to the conclusion that for the alleged
obstruction by the defendants, the petitioner ought to have
approached the jurisdiction police and he has failed to do so. It
has recorded further finding that, if there is any encroachment
made by the judgment-debtors as per the report of the Court
Commissioner, the petitioner has an opportunity to file a suit
for recovery of possession. In my considered view, such
approach of the Executing Court would run contrary to Order
21 Rule 32(5) of CPC. The Executing Court has further
recorded the finding with regard to the possession of the
petitioner/plaintiff, which was uncalled for as the Appellate
Court in R.A.No.32/2006 recorded a clear finding with regard to
the lawful possession of the petitioner by considering the Court
Commissioner's report and the said finding has been affirmed
by this Court in R.S.A.No.2138/2008 and if the Executing Court
makes any finding with regard to the possession of the
petitioner/plaintiff, it would run contrary to the judgment and
decree.
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7. Insofar as the scope of Order 21 Rule 32(5) of CPC,
this Court in the case of Kareppa (supra) at paragraph Nos.5
and 6 held as under:
"5. Sub-clause (5) of Rule 32 of Order 21 reads
as under:
32. Decree for specific performance for restitution
of conjugal rights, or for an injunction.--
(1) xxxx xxxx xxxx
(2) xxxx xxxx xxxx
(3) xxxx xxxx xxxx
(4) xxxx xxxx xxxx
(5) Where a decree for the specific performance
of a contract or for an injunction has not been
obeyed, the Court may, in lieu of or in addition to all
or any of the processes aforesaid, direct that the act
required to be done may be done so far as
practicable by the decree-holder or some other
person appointed by the Court, at the cost of the
judgment-debtor, and upon the act being done the
expenses incurred may be ascertained in such
manner as the Court may direct and may be
recovered as if they were included in the decree.
Explanation.-- For the removal of doubts, it is
hereby declared that the expression "the act required
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to be done" covers prohibitory as well as mandatory
injunctions."
6. A perusal of the provisions contained in sub-
clause (5) read along with explanation appended
thereto makes it clear that in addition to the remedy
provided under Order 21, Rule 32(1), if a decree
holder in whose favour the decree has been obtained
complains of its disobedience, then the Court may, in
lieu of or in addition to all or any of the processes
mentioned in Rule 32 direct that the act required to
be done may be done as far as practicable by the
decree-holder or some other person appointed by the
Court at the cost of the judgment-debtor. The 'act
required to be done' as has been explained in the
explanation appended thereto covers prohibitory and
mandatory injunction. Therefore, it is patently clear
that if a decree of prohibitory injunction has been
violated by the judgment debtor, then the decree-
holder can seek restitution by getting the act
required to be done carried out by the decree-holder
or some other person appointed by the Court.
Therefore, what is important is ascertainment of
factum of violation of the decree passed. If the
executing Court comes to the conclusion that after
the decree of permanent injunction was passed
defendant violated the decree and laid the road then
decree holder would be entitled for restitution of his
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land by ensuring as far as practicable the act
required to be done to restore the land back to the
decree holder was done."
8. In the case of Sanju @ Payal (supra), the High
Court of Punjab and Haryana has considered various decisions
on the orders of the Executing Court under Order 21 Rule 32(5)
of CPC and held as under:
"[12] In the given facts, no merit can be found
in the submission made on behalf of the appellants
that since no specific date or time of dispossession of
respondent No.1-decree holder from the suit
property was pleaded or established on record, as
such the warrants of possession in her favour could
not have been issued. In the humble opinion of this
Court, once, a concurrent finding of fact was
recorded by both the Courts below in the suit that
respondent No.1-decree holder was in possession of
the suit property, the same carried presumption of
her possession as on the date of filing of suit till the
date of its adjudication. As such, in any subsequent
execution application based on dispossession at the
hands of judgment debtor, the non-mentioning of
specific particulars in the shape of date or month of
forcible dispossession was not of much relevance as
the substratum of execution was mere dispossession
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of the decree-holder, which was duly established on
records of the present case. Strength to the
aforesaid view can be drawn from the following
observations made by this Court in case of "Dilbagh
Singh Versus Harpal Singh alias Harpal Singh
Chela", reported as 2020 (2) ICC 312:-
4. Having heard............It is not even disputed; and
it has been so recorded by the Executing Court as
well, that the question of possession qua the suit
property had been specifically is in issue before the
trial Court. The issue had been decided in favour of
the decree holder and the possession over the suit
property had specifically been held in favour of the
decree holder. The said findings were challenged by
the present petitioners before the Appellate Court,
However, even the Appellate Court upheld the
finding of the Trial Court to the effect that the suit
property was in specific possession of the
plaintiff/decree holder. Accordingly, the Executing
Court has to start with the said finding and with
presumption that the property was in possession of
the decree holder as on the date of passing of the
decree. Starting with any other point or assumption,
would tantamount to disputing the finding of the trial
Court, which had come in the judgments/decree after
a long and protracted trial, in which both the parties
were at liberty to present their respective cases. So
far as the Executing Court is concerned, it could not
have gone beyond the decree to dispute the
possession in favour of the decree holder. Therefore,
the Executing Court has not committed any
irregularity or illegality in accepting that as on the
date of decree, the possession of the suit property
was with the decree holder.
5. The petitioners/judgment debtors have not
claimed either in their objections; or even before this
Court; that the judgment debtors are not in
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possession of the suit property; as of today. Rather,
it is the case of the petitioners that the
petitioners/judgment debtors have throughout been
in possession of suit property and the decree holder
had got a decree; based upon a factually wrong
finding recorded by the Trial Court that he was in
possession. I am afraid that this cannot be the scope
of objection to be entertained on behalf of the
judgment debtor. An execution of a decree, pre
supposes the validity of the decree, whereas, the
argument of learned counsel for the petitioners is
indicative of disputing the validity of the decree
itself.........."
[13] Moreover, no merit can be found with the
submission made on behalf of the appellants-
judgment debtors that warrants of possession were
not to be issued in exercise of powers under
explanation to Order 21 Rule 32 (5) of CPC in favour
of decree-holder in a suit for permanent injunction,
as this question has already been answered by this
Court in case of "Kapoor Singh Versus Om
Parkash". reported as 2009 (4) CivCC 586.
Relevant paras-9 to 11 from the said decision are
extracted hereunder:-
"9. As discussed earlier, the decree dated
22.10.1994 was in two parts. One concerning the
specific performance of the contract and the other
concerning restraint order with regard to the forcible
dispossession. In respect of the latter part, Order 21,
Rule 32 (5) CIVIL PROCEDURE CODE, provides
that the Court may, in lieu of or in addition to all or
any of the processes which are provided under Order
21, Rule 32 (1) to (4), direct that act which is
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required to be done which covers prohibitory as well
as mandatory injunctions.
10. To my mind, the Act required to be done
which is also mentioned in the explanation are
prohibitory and mandatory injunction empowers the
Executing Court in case of violation of the decree of
permanent injunction where the respondents have
forcibly taken possession in spite of the decree of
injunction.
Thus, an order of mandatory injunction can be
issued for restoration of possession as has been done
in the present case. The Courts cannot be a party to
the illegal designs of a judgment debtor who wishes
to carry on with his illegal possession.
11. The law lies in favour of the interpretation
which would prevent multiplicity of the proceedings
rather than the one which will generate it. The
decree holder is not required to file another suit as
he had already obtained a decree in his favour by
spending much time and expense. Thus, the
Executing Court has the jurisdiction to pass an order
on the application under Order 21, Rule 32 (5)
CIVIL PROCEDURE CODE to restore the possession
of land in dispute to decree holder in case the decree
of permanent injunction is violated by the judgment
debtor."
[14] The aforesaid view of Kapoor Singh's
case (supra) was followed by this Court later in
case of "Dilbagh Singh and others Versus Harpal
Singh alias Harpal Singh Chela and others",
2020 (2) ICC 312 Relevant para-6 from the said
decision is extracted hereunder:-
"6. Although learned counsel for the petitioners
has laid much stress on the fact that to seek
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execution of the decree, qua the restoration of the
possession in his favour, the decree holder was
supposed to plead specifically as to when and in what
manner he has been dispossessed. This Court finds
this argument to be noted only to be rejected. The
provisions of sub Rule (5) Rule 32 of Order 21 CPC
do not prescribe any such condition. Rather, Order
21 Rule 32 CPC prescribes that for execution of a
decree if any act is required to be done by the
judgment debtor, the Executing Court can order that
such an act be done by the judgment debtor; as
claimed. Sub Rule (5) Rule 32 of Order 21 CPC has
been interpreted by the Supreme Court in various
judgments viz. "Samee Khan v. Bindu Khan, 1998(4)
RCR (Civil) 125 (SC)" to mean that in an execution
proceedings of a decree for injunction, if it is found
that the decree holder has been dispossessed after
the date of decree, the restoration of possession can
also be ordered by the Executing Court. Hence, it is
no more res-integra that in execution of a decree for
injunction, even restoration of possession can be
ordered by the Executing Court. This view has also
been taken by this court in 'Kapoor Singh v. Om
Parkash, 2009(4) PLR 178'. Hence, no fault can
be found, per-se, with the action of the Executing
Court in issuing warrants of possession in the
execution proceedings."
[15] Furthermore, the view expressed by this
Court in the aforesaid two judgments was even
approved by the Hon'ble Apex Court in case of
Bhudev Mallick alias Bhudeb Mallick and
another Versus Ranajit Ghoshal and others"
2025 SCC OnLine SC 360. Relevant para-40 from
the said decision is extracted hereunder:-
"40. The High Court of Punjab and Haryana in the
case of Dilbagh Singh and Others v. Harpal Singh
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Alias Harpal Singh Chela and Others reported in 2020
Supreme (P&H) 944, has held as under:-
"6. Although learned counsel for the petitioners
has laid much stress on the fact that to seek
execution of the decree, qua the restoration of the
possession in his favour, the decree holder was
supposed to plead specifically as to when and in what
manner he has been dispossessed. This Court finds
this argument to be noted only to be rejected. The
provisions of sub Rule (5) Rule 32 Order 21 CPC do
not prescribe any such condition. Rather, Order 21,
Rule 32 CPC prescribes that for execution of a decree
if any act is required to be done by the judgment
debtor, the Executing Court can order that such an
act be done by the judgment debtor; as claimed. Sub
Rule (5) Rule 32 Order 21 CPC has been interpreted
by the Supreme Court in various judgments viz.
"Samee Khan v. Bindu Khan, 1998(4) RCR (Civil)
125 (SC)" to mean that in an execution proceedings
of a decree for injunction, if it is found that the
decree holder has been dispossessed after the date
of decree, the restoration of possession can also be
ordered by the Executing Court. Hence, it is no more
res-integra that in execution of a decree for
injunction, even restoration of possession can be
ordered by the Executing Court. This view has also
been taken by this court in 'Kapoor Singh v. Om
Parkash, 2009 (4) PLR 178'. Hence, no fault can be
found, per-se, with the action of the Executing Court
in issuing warrants of possession in the execution
proceedings.
(Emphasis supplied)"
9. Keeping in mind the enunciation of law laid down by
this Court and Punjab and Haryana High Court, I am of the
considered view that the Executing Court has committed a
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grave error in recording the finding with regard to the
possession of the petitioner and further finding that the
petitioner has to file an independent suit for possession.
10. For the aforementioned reasons, I proceed to pass
the following:
ORDER
(i) The writ petition is allowed.
(ii) The impugned order dated 14.09.2021 passed
in Ex.Case No.2/2015 by the Principal Civil
Judge, Virajpet, is set aside.
(iii) Ex.Case No.2/2015 is restored to file.
(iv) The Executing Court is directed to consider the
petitioners' prayer in accordance with law after
detailed enquiry.
(v) It is open for the Executing Court to take
assistance of the Commissioner, if need arises.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
MD
List No.: 1 Sl No.: 5
