Karnataka High Court
Shankar S/O Mahadev Gondale Died By His ... vs Gaddeppa Died By His Lrs 1) Gowrabai on 13 October, 2022
Author: R. Devdas
Bench: R. Devdas
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE R. DEVDAS
WRIT PETITION No.202601/2022 (GM-CPC)
BETWEEN:
1. SHANKAR S/O MAHADEV GONDALE
DIED BY HIS LRS.
1A) GUNAWANT
S/O LATE SHANKAR GONDALE,
AGED ABOUT: 60 YEARS,
OCC: AGRICULTURE,
1B) VISHNU
S/O LATE SHANKAR GONDALE
AGED ABOUT 50 YEARS,
OCC: AGRICULTURE,
1C) NIMBAJI
S/O LATE SHANKAR GONDALE
AGED ABOUT 42 YEARS,
OCC: AGRICULTURE,
1D) CHIDANAND
S/O LATE SHANKAR GONDALE
AGED ABOUT 36 YEARS,
OCC: AGRICULTURE,
2. MAHADEV
S/O MALHARI GONDALE
DIED BY HIS LR.
2
2A) LAXMAN S/O LATE MAHADEV GONDALE,
AGED ABOUT 35 YEARS,
OCC: AGRICULTURE,
3. MOTI S/O TULJARAM GONDALE
AGED ABOUT 65 YEARS,
OCC: GONDALE
4. SUBHASH S/O KALJAPPA GONDALE
DIED BY HIS LR.
4A) NANDABAI
W/O SUBHASH GONDALE,
AGED ABOUT 55 YEARS,
OCC: HOUSEWIFE
R/O MANNUR VILLAGE,
TQ. AFZALPUR,
DIST. KALABURAGI.
... PETITIONERS
(BY SRI G.B.YADAV AND
SRI MAKSOOD AFZAL, ADVOCATES)
AND:
GADDEPPA DIED BY HIS LR.
GOWRABAI W/O LATE GADDEPPA PUJARI,
AGED ABOUT 78 YEARS,
OCC: HOUSEHOLD,
R/O MANNUR VILLAGE,
TQ. AFZALPUR,
DIST. KALABURAGI
... RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER
DATED 28.04.2018 PASSED IN E.P.NO. 03/2017 BY THE CIVIL
3
JUDGE AND JMFC AT AFZALPUR ALLOWING THE I.A NO.I FILED
BY THE RESPONDENT UNDER SECTION 151 OF CPC AS PER
ANNEXURE-E AND DISMISS THE I.A.NO.I; ISSUE A WRIT OF
CERTIORARI QUASHING THE IMPUGNED ORDER DATED
13.01.2022 REJECTING THE I.A.NO.V FILED BY THE
PETITIONERS UNDER ARTICLE 136 (PART-I) OF LIMITATION
ACT 1963 R/W SECTION 151 OF CPC AS PER ANNEXURE- H AND
ALLOW I.A NO.V AS PRAYED.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
R. DEVDAS J., (ORAL):
The petitioners are aggrieved of the impugned order dated 13.01.2022 passed by the Civil Judge and JMFC, Afzalpur in Execution Petition No.3/2017 on I.A.No.V.
2. Learned counsel for the petitioners submits that respondent herein sought to execute the judgment and decree passed in O.S.No.166/1981 dated 02.12.1982 and decree signed on 08.12.1982. 4 The judgment and decree granted permanent injunction in favour of the plaintiff. However, the petitioners herein who are the judgment debtors filed I.A.No.V invoking Article 136 of the Limitation Act, 1963, read with Section 151 of Code of Civil Procedure to reject the Execution Petition on the ground of limitation.
3. Learned counsel for the petitioners submits that executing Court has not considered the application filed by the judgment debtors in proper perspective.
4. Having heard the learned counsel for the petitioners and on perusing the impugned order passed by the Civil Judge and JMFC, Afzalpur, this Court finds that the learned Judge has noticed the proviso contained in Article 136 of the Schedule provided to the Limitation Act, 1963, wherein it is 5 clearly provided that although a period of 12 years is prescribed as limitation for execution of any decree or order of any Civil Court, nevertheless, an application for enforcement of an execution of a decree granting perpetual injunction shall not be subject to any period of limitation. That being the position, this Court does not find any infirmity in the impugned order.
Consequently, writ petition stands dismissed.
Sd/-
JUDGE VNR 6 WP NO.202601/2022 IN THE HIGH COURT OF KARNATAKA AT KALABURAGI [SHANKAR S/O MAHADEV GONDALE DIED BY HIS LRS 1A) GUNAWANT AND ORS VS. GADDEPPA DIED BY HIS LRS 1) GOWRABAI] RDJ 17.10.2022 (VIDEO CONFERENCING / PHYSICAL HEARING) ORDER ON 'FOR BEING SPOKEN TO' Though this writ petition was dismissed by order dated 13.10.2022, learned counsel for the petitioners moved this Court for 'Being Spoken To', stating that there were two prayers made in the writ petition and the order has been passed in respect of one prayer only.
Regarding the impugned order dated 13.01.2022 passed by the Civil Judge and JMFC, Afzalpur, in E.P.No.3/2017 on I.A.No.V, this Court has held that there is no infirmity in the order passed by the executing Court, since the proviso to Article 136 of the Limitation Act, 1963, clearly states that there is no prescription of limitation for execution of any decree or order granting perpetual injunction.
In the writ petition, the petitioners have also called in question the earlier order passed by the executing Court on 7 28.04.2018 by which police protection was given to the decree holder to conduct pooja and pallakki utsav.
In the considered opinion of this Court, two orders passed by the Civil Court/executing Court could not have been questioned in one writ petition. Secondly, earlier order was passed way back on 28.04.2018 granting police protection to the decree holder and was executed and therefore, at this point of time, this Court cannot permit the judgment debtors to question the same.
Consequently, the challenge raised to the earlier order dated 28.04.2018 in E.P.No.3/2017 passed by the Civil Judge and JMFC, Afzalpur, allowing I.A.No.I also stands dismissed.
Sd/-
JUDGE NB List No.: 1 Sl No.: 1