Karnataka High Court
Shivappa vs Hiriyamma on 17 June, 2019
Equivalent citations: AIRONLINE 2019 KAR 608
Author: Krishna S.Dixit
Bench: Krishna S Dixit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 38722/2016 (GM-CPC)
BETWEEN:
SHIVAPPA
S/O ADIVEPPA @ DURUGAPPA
AGED ABOUT 58 YEARS, COOLIE
R/O HOSAKUNDUWADA VILLAGE
DAVANAGERE TALUK & DIST - 577 006
... PETITIONER
(BY SRI. REVANNA BELLARY., ADV)
AND:
1. HIRIYAMMA
W/O HOSAPET HANUMANTHAPPA
DEAD BY LRS
(a) SMT. CHOWDAMMA
W/O PANDAPPA
AGED ABOUT 44 YEARS
HOUSEHOLD & COOLIE
(b) SMT. UMA
HUSBAN S NAME NOT KNOWN
TO PETITIONER
D/O LATE HIRIYAMMA
AGED ABOUT 42 YEARS
HOUSE HOLD & COOLIE
(c) MARIYAMMA
D/O LATE HIRIYAMMA
AGED ABOUT 30 YEARS
HOUSEHOLD & COOLIE
ALL ARE R/O HOSAKUNDUWADA VILLAGE
DAVANAGERE TQ & DIST. 577 006.
2. HANUMANTHAPPA
@ HOSAPET HANUMANTHAPPA
FATHER'S NAME NOT
KNOWN TO PETITIONER
AGED ABOUT 65 YEARS
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3. PARUSAPPA
S/O HOSAPET HANUMANTHAPPA
AGED ABOUT 30 YEARS
4. PREMAVVA
W/O NAGARAJAPPA HIRIYAMA
AGED ABOUT 35 YEARS
5. KUM. AJJAIAH
S/O LATE NAGARAJAPPARA HIRIYAMMA
AGED ABOUT 19 YEARS
6. KUM. ASHWINI
D/O LATE NAGARAJAPPARA HIRIYAMMA
AGED ABOUT 17 YEARS
7. KUM. ANITHA
D/O LATE NAGARAJAPPARA HIRIYAMMA
AGED ABOUT 15 YEARS
RESPONDENT NOS.6 & 7 ARE
REP. BY THEIR NATURAL
GUARDIAN MOTHER
RESPONDENT NO.4 SMT. PREMAVVA
W/O NAGARAJAPPA HIRIYAMMA
NATURAL MOTHER AND GUARDIAN
RESPONDENT NOS.2 TO 7 ARE
R/O HOSAKUNDUWADA VILLAGE
DAVANAGERE TALUK & DISTRICT 577 006
... RESPONDENTS
(BY SRI. HAREESH BHANDARY T., ADV. FOR
SRI. S. VISHWAJITH SHETTY, ADV. FOR R-1[a], 3 TO 5;
SRI. RUDRAPPA P., ADV. FOR R-3
R-1 (b) SERVED; R-6 & R-7 ARE MINORS
V.O.D. 19.06.2017; R-1 [a] & [b] ARE LRs
OF DECEASED R-1[C]
V.O.D. 31.05.2019 R-3 TO R-7, TREATED AS LRs OF R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDERS ON I.A.NO.1 DTD. 28.9.2015 PASSED IN
O.S.NO.26/2007 OF PRINCIPAL CIVIL JUDGE COURT,
DAVANAGERE AT ANNEXURE-M AND PRAYED FOR ALLOW
THE I.A.NO.1 IN O.S.NO.26/2007 AND PERMIT THE
PETITIONER TO CARRY OUT AMENDMENT IN THE SCHEDULE
TOWARDS EAST AND WEST AS PER ANNEXURE-K AND ALSO
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DIRECT THE TRIAL COURT TO ISSUE AMENDED DECREE IN
FAVOUR OF THE PETITIONER.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Petitioner being the decree holder in O.S.No.26/2007 is invoking the writ jurisdiction of this Court for assailing the rejection of his amendment application in I.A.No.1 in the said suit for the amendment of suit schedule property by describing it properly. After service of notice, the respondents have entered their appearance through their counsel and opposed the writ petition.
2. Learned counsel for the petitioner assailing the impugned order submits that, the suit in O.S.No.26/2007 for ejectment having been decreed, the decree has been put in Ex.No.179/2013; although there was some defect with description of the property in the plaint itself, all the parties went to trial fully knowing the identity of the property; the judgment debtors in their written statement have specifically admitted the description of the property; the judgment and decree are affirmed in contesting respondents R.A.No.41/2012, wherein also there was no dispute as to the identity of the property; that being so the Court below ought to have favoured petitioner's application -4- for proper description of the said property especially when the delivery warrant was returned unexecuted for improper description of the same.
3. Learned counsel appearing for the judgment debtors per contra makes the submission in justification of the impugned order stating that they had filed the objections to the application for amendment specifically disputing the identity of the property; at this length of time the application having been filed, has been rightly rejected by the Court below. So contending he seeks dismissal of the writ petition.
4. I have heard the learned counsel for the petitioner and the learned counsel for the respondents. I have perused the petition papers.
5. The ejectment suit in O.S.No.26/2007 having been decreed on 29.8.2012, the decree has been affirmed by the first Appellate Court in R.A.No.41/2012 on 22.9.2014. Neither in the suit nor in the regular appeal the respondents- judgment debtors have raised any issue as to the identity of the property. On the contrary, in their Written Statement filed on 6.7.2007 a copy whereof is at Annexure-'B' at para 13 they have in so many words -5- admitted the identity of the property. This admission in the pleadings(relevant part) reads as under:-
"13. ....... The suit schedule in above said suit and schedule of this suit is one and same and parties in both the suits are same. Both suits filed in a different cause of action, is not maintainable".
That being the position, the petitioner's application could not have been dismissed by the Court below with the reasons assigned therein.
6. Though there was no dispute as to the identity of the property at any point of time, it is strange that the delivery warrant issued by the Executing Court came to be returned unexecuted on the ground that a particular boundary of the subject property is improper. When this defect is being rectified by way of amendment, the Court below could not have dismissed the application especially when it was not a case where by reason of amendment, the suit property is being substituted by some other property; it is not the contention of the respondents, here also.
7. The Madras High Court in the case of R. Srinivasan .vs. M. Thabhusami, 1996(2) LW 539 at Para 9 as observed as under:-
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"9..................The finding of the Court below that Section 152, C.P.C. cannot be invoked to correct the survey number of the property and that Section 152 can be invoked only to correct clerical error or arithmetical errots in the judgments and decrees, in my opinion, is erroneous. Likewise the other reasoning given by the Court below that any kind of correction can be carried out only before the decree is passed, is also not correct. The further conclusion of the Court below that when a decree had been obtained for a particular survey number, it cannot be corrected at the time of execution, is also erroneous. Even assuming without admitting that the petition under Section 152, C.P.C. to correct the survey number may be technically objected to, in the interests of justice, the Court below should have ordered the application in its inherent powers, as the decree holder has obtained the decree after full contest cannot at all be deprived of the fruits of the decree on a technical reason."
The above observations support the case of the petitioner who is entitled to the usufructs of the decree obtained after full contest by the other side.
8. This case reminds me of what the Judicial Committee of Privy Council speaking through the RIGHT HON. SIR JAMES COLVILE, about a century & a half ago i.e., in the year 1872 had observed in the case of THE GENERAL MANAGER OF THE RAJ DURBHANGA VS. -7- MAHARAJAH COOMAR RAMAPUT SINGH IN MOORE'S INDIAN APPEALS (1871-72), VOL.14, PAGE 605 = 17 W.R.459; it reads:
"These proceedings certainly illustrate what was said by Mr. Doyne, and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a Decree...."
In the above circumstances this writ petition succeeds, the impugned order is set at naught; petitioner's application in I.A.No.1 in O.S.No.26/2007 for proper description of the suit property in the plaint is favoured.
A direction issues to the Executing Court to accomplish the Execution proceedings in Execution No.179/2013 within an outer limit of six months and report compliance to the Registrar General of this Court.
No costs.
Sd/-
JUDGE KGR*