Karnataka High Court
A C D Souza vs Prabhuraj D Ambli on 1 December, 2022
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER 2022
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.22472/2022 (GM-CPC)
BETWEEN :
A C D'SOUZA
AGED ABOUT 74 YEARS
S/O LATE I D'SOUZA
R/AT NO 28 NEW NO 64
1ST FLOOR, 6TH CROSS
BRINDAVAN NAGAR
MATHIKERE
BANGALORE 560054.
... PETITIONER
(BY SRI. JOSE SEBASTIAN, ADVOCATE)
AND :
1. PRABHURAJ D AMBLI
S/O DURADUNDYYA M AMBLI
AGED ABOUT 51 YEARS
R/AT NO 304
ARCHANA ENCLAVE
PRASHANTH NAGAR, ISRO LAYOUT
BANGAORE - 560078.
2. RASHMI P AMBLI
W/O PRABHURAJ D AMBLI
AGED ABOUT 47 YEARS
R/AT NO 304
ARCHANA ENCLAVE
PRASHANTH NAGAR
2
ISRO LAYOUT,
BANGALORE - 560078.
3. M RAMESH
S/O LATE MUNINARAYANAPPA
AGED ABOUT 67 YEARS
SRIGANGA NO 156/8P 16
21ST CROSS, BHAGAVATHI
TEMPLE ROAD, HULIMAVU,
BANGALORE 560076.
4. SMT SUMA
W/O M RAMESH
NO 123 KATHARAGUPPE VILLAGE
PRASHANTHA NILAYA
BANASHANKARI 3RD STAGE
BANGALORE 560085.
5. G T GOPAL
S/O THIMMEGOWDA
AGED ABOUT 51 YEARS
NO 68, BEGUR WOODS
BEGUR TO KOPPA MAIN ROAD
BEGUR, BANGALORE 560068.
6. A R BALARAMEGOWDA
(RETIRED DY. SP)
NOW R/AT AREHALLIL
BAILAGUMBA POST
RAMANAGARA 562159.
7. T D JAYARAM
(RETIRED DY. SP.)
NOW R/AT THUNGANI GRAM
KANAKAPURA TALUK
RAMANAGAR 562117.
8. C R RAVISHANKAR
PRESENTLY WORKING AS DY SP
AT CID STATE INTELLIGENCE OFFICE
3
RAJAGUPTE VARTHE
KASTURBA ROAD
BANGALORE 560001.
... RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO THE
QUASHING OF IMPUGNED ORDERS PASSED ON I.A.NO.
16, DATED 01.07.2022 IN EX.25148/2009 ON THE FILE OF
THE XIII ADDITIONAL CITY CIVIL JUDGE, MAYOHALL
UNIT, BENGALURU UNDER THE ORIGINAL OF ANNEXURE-
X.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
This petition is by the decree holder in Ex. No.25148/2019 on the file of the XIII Additional City Civil and Sessions Judge, Bengaluru [for short, 'the executing Court']. The petitioner has impugned the executing Court's orders dated 01.07.2022 and 13.09.2022. The executing Court by the order dated 01.07.2022 has directed the petitioner to take appropriate steps against the defendants - judgment debtors in the suit for prosecution of the execution case. The petitioner is aggrieved by certain portions of this order dated 01.07.2022 and as such has filed an 4 application for review. The executing Court by its next impugned order dated 13.09.2022 has rejected the application once again observing that the petitioner will have to take further steps only as against the judgment debtors.
2. It transpires from the records that the petitioner has the benefit of a decree for permanent injunction against the three defendants in O.S. No.17399/2006 which is decreed on 06.04.2009. The petitioner has commenced the execution proceedings only against the first and second defendants - the first and second respondents, who are arrayed as first and second judgment debtors. The executing Court, by its order dated 24.05.2012, has allowed he petitioner's application [I.A. No.7] under Order XXI Rules 97 and 101 of the Code of Civil Procedure, 1908 [for short, 'the CPC']. The operative portion of the executing Court's order dated 24.05.2012 reads as under:
5
The Judgment-debtor Nos.1 & 2 & respondents of I.A. No.7 are directed to remove the compound wall put up by them to the suit schedule property and also they shall not cause any obstructions to the plaintiff possession. If Judgment-debtors and respondents of I.A. No.7 fail to comply this order, the Decree-holder is at liberty to execute the order through appointment of court Commissioner.
3. After this order, the executing Court has appointed a Court Commissioner who has filed his report dated 31.01.2014 stating inter alia that because of certain obstructions, he is not able to execute the warrant. After this report, the executing Court by its order dated 15.02.2014, has issued directions to the Assistant Commissioner of Police, South-East Zone, Bengaluru to provide appropriate protection to the Court Commissioner to execute the warrant.
4. The Court Commissioner thereafter has executed the warrant and has filed his report on 06.03.2014 stating that the compound constructed has 6 been demolished. The saga of this litigation which should have stopped at this stage, has not with Sri. Ramesh and his wife Smt. Suma [the third and fourth respondents and Obstructors] filing an application under Section 47 of CPC. The executing Court by its order dated 25.01.2017 has rejected these Obstructors' application.
5. The petitioner has continued with the execution proceedings filing an application for correction of certain portion in the executing Court's order dated 25.01.2017. The decree holder has sought for correction of the property number as mentioned in such order, but the executing Court has rejected this application by its order dated 01.07.2022 [the first of the two impugned Orders] while directing the petitioner to take appropriate steps against the defendants -
judgment debtors in the suit for prosecution of the execution case.
7
6. Sri. Jose Sebastian, the learned counsel for the petitioner, submits that the petitioner is prosecuting the execution case to secure necessary orders for construction of a compound to the subject property because notwithstanding the earlier orders against the judgment debtors and the obstructors and removal of the offending construction, the petitioner is not able to put up construction. The petitioner is constrained because of the apathy of the local Police, and as such the request with the executing Court and its order dated 01.07.2022.
7. Sri Jose Sebastian submits that the petitioner is aggrieved by the following observation in the executing Court's order dated 01.07.2022.
Therefore, in the absence of DHR producing any material to show that the afore stated 3rd parties namely, Ramesh, Suma, G T Gopal are claiming title through the original defendants in the suit or that they are acting on behalf of the original defendants in the suit, the proceedings in the 8 present execution petition against the 3rd parties cannot be taken."
The learned counsel contends that the said observation reopens the Issues that are already settled with the rejection of the Obstructers' application. The petitioner has therefore filed the application for review and that has been rejected without considering the consequence of the observation in the light of the concluded orders.
8. Sri Jose Sebastian also submits that this Court must intervene because the observation by the executing Court [in paragraph-5 of the order dated 01.07.2022] that if there could be any allegation against the Police Officers, the petitioner must initiate contempt proceedings and the proceedings cannot be continued as against these Police Officers is also contrary to law and the circumstances of the case. When queried specifically, Sri Jose Sebastian reiterates that the petitioner is prosecuting the execution petition solely for 9 the purposes of, as part of the rights available under the decree for permanent injunction, constructing a compound wall to the subject property in the light of the earlier orders in the execution case and for no other purpose.
9. There is nothing on record to indicate that Sri Ramesh or Smt Suma, or their power of attorney, Sri. G T Gopal, [the Obstructors] have called in question the executing Court's order dated 25.01.2017 rejecting their application, and it could be that these third parties have accepted the executing Court's order. In law, this must have its consequence, and the executing Court's observation as aforesaid must necessarily be considered in such backdrop and cannot be construed as re- opening settled questions or obstructing the petitioner's right to prosecute the execution petition for construction of a compound if that is permissible in law. 10
10. The petitioner will have to persuade the executing Court to pass suitable orders and at this stage, it would be premature for this Court to comment on the contention that the petitioner could pursue the execution proceedings for orders to construct the compound wall to the subject property. However, the executing Court is justified in its observation that if there is any reason for allegation against the Police Officers, they cannot be drawn into the execution proceedings as judgment debtors or obstructors and the petitioner must avail the remedy as against them in accordance with law.
In the light of the afore, the petition stands disposed of observing that the petitioner's apprehension regarding the executing Court's observation in its order dated 01.07.2022 as extracted above is rather unjustified and it cannot prejudice the petitioner's right or create any right in favour of the respondents/ 11 Obstructors, or the third parties claiming under them contrary to law. The petitioner could prosecute the execution petition for the purposes as now stated, and the petitioner is reserved liberty in that regard but subject to all just exceptions in law.
Sd/-
JUDGE AN/-