Full Judgment
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2024 BEFORE THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 24245 OF 2018 (GM-CPC) BETWEEN: CHENNAPPA SINCE DEAD BY LRS:
1. SMT. VENKATAMMA, AGED ABOUT 75 YEARS, W/O LATE CHENNAPPA.
2. SONAPPA AGED ABOUT 55 YEARS, S/O LATE CHENNAPPA, BOTH ARE RESIDING AT BETTAHALLI VILLAGE, SULIBELE HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT. …PETITIONERS Digitally (BY SRI. CHANDRASHEKARA REDDY M V, ADVOCATE) signed by SUMA AND: Location: HIGH COURT OF EREGOWDA KARNATAKA
AGED ABOUT 60 YEARS, S/O. MUNISHAMAPPA, R/AT BETTAHALLI VILLAGE, SULIBELE HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT. …RESPONDENT (BY SRI. THEJESH P, ADVOCATE) THIS WRIT PETITION FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 21.03.2018 PASSED ON I.A. FILED UNDER ORDER 26 RULE 9 OF CPC -2- IN EP NO.59/1994 PRODUCED AT ANNEXURE-M BY HOLDING THAT THE EXECUTION COURT HAS NO JURISDICTION TO PASS THE IMPUGNED ORDER. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B-GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The judgment debtors in Ex.No.59/1994 pending on the file of the Principal Civil Judge and JMFC, Hosakote (henceforth referred to as 'executing Court') are before this Court challenging the correctness of an order dated 21.03.2018 by which, it allowed an application filed by the decree holder under
Order XXVI Rule 9 read with Section 151 of the Code of Civil
Procedure, 1908 (henceforth referred to as 'CPC') and appointed Taluk Surveyor as a Commissioner for local inspection to fix the boundaries as per the decree on the strength of Hakku Pathra.
2. The parties shall henceforth be referred to as they
were arrayed before the executing Court. The petitioners herein were the judgment debtors, while the respondent was the decree holder before the executing Court. -3-
3. The decree holder filed O.S.No.113/1993 for
declaration of title and recovery of possession and injunction in respect of a site bearing No.8 with specific boundaries. The said suit was decreed on 07.10.1993, following which, the decree holder initiated execution proceedings in Ex.No.59/1994.
4. In the execution petition, the judgment debtors
filed I.A.No.3 under Section 47 read with Order XXI Rules 35, 97 and 98 of CPC to obstruct the execution of the decree on the ground that they were the owners of site No.5 and that the decree holder was trying to execute the decree against site No.5.
5. The executing Court disposed off the said
application by order dated 28.02.2012 and directed the decree holder not to proceed against site No.5 in execution of the decree passed in O.S.No.113/1993. However, it granted liberty to the decree holder to proceed to execute the decree as against site No.8 within the boundaries as mentioned in the decree.
6. Later, the judgment debtors filed an application under Section 151 of CPC seeking protection of the -4- jurisdictional police to protect their possession in site No.5, which was also granted by the executing Court in terms of the
order dated 23.02.2013.
7. Later, the Court Bailiff, who was handed over a
delivery warrant, visited the property on 05.01.2013 but was unable to identify site Nos.8 and 5. He therefore, submitted his report stating that the occupant of the site bearing No.9 and the occupant of the site bearing No.4 agreed to accept any decision that may be passed by any person, who may be appointed by the Court. He therefore, returned the delivery
warrant to the Court for appropriate orders. This continued even on 12.09.2015 and the warrant was not executed.
8. (i) Later, the decree holder filed an application
under Order XXVI Rule 9 read with Section 151 of CPC to appoint Taluk Surveyor as a Commissioner to inspect the suit schedule properties and fix boundaries of the site No.8 as per the decree and on the strength of the Hakku Pathra and to direct the Taluk Tahsildar to implement the decree by handing over the possession of the suit schedule property.
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(ii) This application was contested by the judgment
debtors, who contended that the decree holder had sought many reliefs in one application and therefore, the said application was not maintainable. They also contended that the suit in O.S.No.113/1993 was filed in respect of site No.8, which measured east to west 50 feet and north to south 40 feet. They claimed that the decree holder had obtained an ex-parte
decree. They claimed that the decree holder attempted to execute the decree in respect of site No.5, measuring east to west 40 feet and north to south 50 feet. Therefore, they claimed that the decree cannot be executed in respect of site No.5 and therefore, no Commissioner can be appointed to identify the property, which does not exist.
9. The executing Court after considering the contentions of the decree holder and the judgment debtors,
held that the decree holder had obtained a decree in respect of
site No.8 in O.S.No.113/1993. It further held that decree holder was interested in the property bearing site No.8 and therefore, it is for him to establish the boundaries and measurement of the suit schedule property. It therefore, allowed the application in terms of the impugned order and -6- appointed Taluk Surveyor as the Commissioner to fix the boundaries of the suit property and its measurement.
10. Being aggrieved by the said order, the judgment
debtors are before this Court in this writ petition.
11. The learned counsel for the judgment debtors submitted that the judgment debtors are interested only in
respect of site No.5 and not in respect of site No.8. He contends that the boundaries mentioned by the decree holder were imaginary and did not exist. He therefore, contends that the Surveyor cannot be appointed to identify the limits of the property bearing site No.8.
12. Per contra, the learned counsel for the decree
holder contended that the suit in O.S.No.113/1993 was filed for declaration and possession of the property bearing site No.8 with a small residential house thereon. He contends that the
judgment debtor (since deceased) was a party in the said suit
and he did not contest the said suit, which resulted in an ex- parte decree. He contends that since the legal representatives of judgment debtor are claiming title to site No.5 and not site No.8, there should be no impediment for the decree holder to -7- obtain possession of site No.8 by identifying it through a survey Commissioner and taking possession. Therefore, he contends that in view of the inability on the part of the Court Bailiff to handover the possession, the Court should employ all means available to ensure that possession of the property is delivered to the decree holder.
13. I have considered the submissions of the learned counsel for the judgment debtors as well as the learned counsel for the decree holder.
14. As stated above, the judgment debtors were not interested in site No.8 but were interested in site No.5. The
judgment debtor (since deceased) did not dispute the
correctness of the boundaries mentioned in the suit schedule or measurement. The judgment debtor (since deceased) did not
contest the suit thereby giving an impression that the judgment
debtor was conscious that the boundaries mentioned in the suit schedule did not correspond to site bearing No.5. He also did not dispute the boundaries and the measurement mentioned in the schedule to the suit. Now that there is a decree in favour of the decree holder, the Court has to employ all means -8- available with it to ensure that the title of the decree holder and the possession of the suit is delivered. The exercise of powers of the Court through Court Bailiff to handover the possession of the suit property proved futile and vacant possession of the suit property could not be handed over. The Court is bound to take all steps to ensure that the property of the decree holder is restored to him. The application for appointment of Commissioner was one such step in that regard. There is no error committed by the executing Court in appointing the Commissioner to fix boundaries of the property of the decree holder as per the decree as well as title deeds of the decree holder.
15. Hence, this writ petition lacks merit and is dismissed. Sd/- (R. NATARAJ) JUDGE PMR List No.: 1 Sl No.: 73