Supreme Court - Daily Orders
Nagaraju vs Narayana on 17 December, 2024
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.14623 OF 2024
(Arising out of SLP(C)No.2014/2020)
NAGARAJU & ANR. APPELLANT(S)
VERSUS
NARAYANA RESPONDENT(s)
O R D E R
1. Leave granted.
2. This appeal arises from the order passed by the High Court of Karnataka dated 29th November, 2019 in Writ Petition No. 5736 of 2019 by which the High Court allowed the Writ Petition filed by the respondent herein (original plaintiff/decree holder) and directed that the Executing Court should proceed further with the execution of the decree passed by the Trial Court in favour of the decree holder.
3. For the sake of convenience, the appellant herein shall be referred to as the judgment debtor and the respondent Signature Not Verified Digitally signed by CHANDRESH Date: 2024.12.23 12:19:56 IST 1 Reason: herein shall be referred to as the decree holder.
4. The original plaintiff instituted Suit No.466 of 2001 in the Court of Principal Civil Judge at Channarayapatna for declaration and permanent injunction in respect of the land bearing survey no. 11/3 ad-measuring 27 ghuntas situated in Gurumaranahalli village, Channarayapatana Taluka.
5. In the suit the Trial Court framed the following issues:-
“6. Do the Defendants prove that khatha was made in the year 1963 in the name of the father of the Plaintiff Diddigowda to an extent of 2 acres without any basis in excess to property allotted to him measuring 1 acre 20 guntas?
7. Do the Defendants prove that Plaintiff sold his property measuring 5 guntas out of property allotted to his share in favour of Mamtaz Mohammad of Channarayapatna Town ?
8. Whether the suit is bad for non-joinder of necessary parties?
9. Whether the Plaintiff has cause of action?
10. Whether the Plaintiff entitled for the relief sought?
11. What Order or Decree?”
6. The suit ultimately came to be partly allowed.
7. The operative part of the order passed by the Trial 2 Court reads thus:-
“The suit of the Plaintiff is partly decreed. It is declared as the Plaintiff is the owner, and land measuring 20 guntas out of the schedule property. In respect of the boundaries of the schedule property no relief has been granted. Granted permanent injunction restraining the Defendants or any person acing on their behalf interfering with the Plaintiff's possession and enjoyment of 20 guntas of land in Sy.No.11/3; Parties shall bear their respective costs. Prepare Decree as above.”
8. It is not in dispute that there was no further challenge to the decree passed by the Trial Court. The decree attained finality.
9. The plaintiff thereafter went for execution of the decree by filing Execution Petition No. 76 of 2014.
10. In the said Execution Petition, the judgment debtors filed their objections.
11. Ultimately, the Executing Court came to the conclusion that it is not possible to execute the decree in view of no clarity as regards the exact boundaries of the schedule properties.
12. The Executing Court while dismissing the Execution Petition filed by the decree holder observed in paras 9, 3 10, 11 and 12 respectively as under:-
“9. On perusal of the both the above schedules it is clear that that southern boundary shown in the decree is different from one shown in the petition schedule. The P.W-1 during his cross-examination at has clearly stated that he shown wrong boundary towards south as Road instead of Kuluvadike land. The said portion of the cross- examination is extracted below for the purpose of clarity; " The witness informed that the boundaries provided in the suit and boundaries at spot was not tallying each other and accordingly the Revenue Inspector and Surveyor put report for which the Witness answered that Southern side boundary was not correct. The southern side required kuluvadike land, the owner of the said kuluvadike land was Amasaiah. The southern boundary shown in 'V· the suit is falsely entered as road. The said road shown in the suit is the national highway passing from Channarayapattana to ® Bangalore. I don't know how much extent of land was retained with Amasaiah. The boundary of Amasaiah is about 150 mtrs away from the National Highway.”
10. Therefore it is clear that the DHR is seeking execution of the decree by showing different boundary towards south than shown in the suit. Apart from this the decree is in respect of land measuring 20 guntas and not in respect of any boundaries. Therefore now the DHR cannot say that he is in possession, of the property bounded: by the boundaries shown in the petition schedule. The boundaries shown in the petition schedule is not, proved in O.S. 466/2001. Therefore he cannot execute the decree claiming possession within the specific boundaries.4
11. On the other hand the, JDR No.2 has got examined himself as D.W-1 and got marked 3 documents as Ex.D-I to Ex.D-3. The letter wrote by the Tahasildar to the District Commissioner is at Ex.D-1, wherein the Tahasildar has reported that on spot inspection it is find that the DHR is not in possession of property to an extent of khata made in his name.
12.On perusal of the records this Court has find that the decree in O.S 466/2001 has not passed in respect of any specific boundaries. Therefore the DHR cannot execute the decree with specific boundaries as shown the petition schedule. Hence, the question of Violation of decree by JDR does not arise. Therefore, this Court is of the opinion that there is no interference on the part of the JDRs. Hence, I answer point No.1 in the negative.”
13. Thus, it appears that the Executing Court reached the conclusion that the decree passed in Original Suit No. 466 of 2001 is not in respect any specific boundaries.
According to the Executing Court, in such circumstances, the decree holder cannot execute the decree claiming possession within the specific boundaries.
14. The respondent herein (original plaintiff/decree holder) being dissatisfied with the order passed by the Executing Court invoked writ jurisdiction of the High Court by filing Writ Petition No.5736 of 2019. 5
15. The High Court allowed the writ petition, taking a very serious view of the matter. The Executing Court also thought fit to pass an order that if the judgment debtor failed to cooperate in the execution of the decree, then he shall pay costs of Rs.20,000/-
16. The High Court while allowing the writ petition filed by the decree holder observed as under:-
“(d) the contention of the judgment debtors that the impugned order amounts to a decree and therefore an appeal is entertainable against the same, surprises the Court to say the least; the suit is of the year 2001 and it was decreed in August 2013 after a long drawn trial; judgment debtors suit in O.S.No.8/2003 having been dismissed, has attained finality way back on 30.09.2006; it is too much to ask a successful party in a suit to invoke some other jurisdiction when the errors of law and fact are militantly apparent on the face of the records;
this Court is not sure whether such a contention can be taken in the fact matrix of the case, either, when the jurisdiction of this court is not in challenge.
In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned order; the Execution Case No.76/2014 consequently having been restored, the Court below shall execute the decree preferably within a period of eight weeks, if necessary with police aid, and report compliance to the Registrar General of this Court. The judgment debtors are liable to pay a cost of 6 Rs.20,000 /- to the petitioner; however, the weekly submission of the judgment debtors, the cost is waived subject to their not opposing the execution on untenable grounds.
Both the parties are put to notice through their counsel to appear before the Executing Court on 07.12.2019.”
17. In such circumstances, referred to above the appellants (original defendants/judgment debtors) are here before this Court with the present appeal.
18. We have heard Ms.Amrita Sharma, the learned counsel appearing for the appellants and Mr. Sharanagouda Patil, the learned counsel appearing for the respondent.
19. What we have been able to understand is that there are few infirmities in the pleadings of the Execution Petition filed by the decree holder/original plaintiff. Some better and more accurate particulars need to be furnished before the Executing Court.
20. Prima facie, it appears that it is the incorrect particulars furnished in the Execution Petition that led to all the confusion.
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21. Ordinarily, once there is a decree there should not be any problem, in so far as the execution of the same is concerned. But in the case at hand, the Executing Court is thoroughly confused because it has reached the conclusion that the boundaries shown in the petition schedule are not in accordance with the schedule property shown in the plaint of Original Suit No.466 of 2001.
22. We are of the view that we should give one opportunity to the decree holder to furnish true and correct facts or rather the correct particulars of the suit properties and its boundaries so as to facilitate the Executing Court to give effect to the decree passed by the Trial Court.
23. For the present, we are unable to agree with the order passed by the High Court and therefore we are left with no other option but to set aside the same. The decree holder should not be rendered without any legal remedy. He has obtained a decree and the decree has been accepted by the other side. The only thing is how to execute the decree.
24. In such circumstances, we permit the respondent herein (original plaintiff/decree holder) to file a fresh 8 Execution Petition before the Executing Court containing correct particulars about the suit properties and the boundaries.
25. We make it clear that if the assistance of the District Inspector of Land Record (for short the “DILR”) is required, the Executing Court may avail the services of the DILR for the purposes of determining the boundaries of the suit property.
26. With the aforesaid, the appeal is disposed of.
27. Pending application(s), if any, stands disposed of.
……………………………………………J. [J.B. PARDIWALA] ……………………………………………J. [R. MAHADEVAN] NEW DELHI, DECEMBER 17,2024 cd 9 ITEM NO.5 COURT NO.14 SECTION IV-A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition for Special Leave to Appeal (C) No.2014/2020 [Arising out of impugned final judgment and order dated 29-11-2019 in WP No. 5736/2019 passed by the High Court of Karnataka at Bengaluru] NAGARAJU & ANR. Petitioner(s) VERSUS NARAYANA Respondent(s) (TO BE TAKEN UP AS FIRST MATTER ON BOARD ] ) Date : 17-12-2024 This petition was called on for hearing today. CORAM : HON'BLE MR. JUSTICE J.B. PARDIWALA HON'BLE MR. JUSTICE R. MAHADEVAN For Petitioner(s) Ms. Amrita Sharma, Adv.
Ms. Hetu Arora Sethi, AOR For Respondent(s) M/S. S-legal Associates, AOR Mr. Sharanagouda Patil, Adv.
Mrs. Supreeta Patil, Adv.
Mr. Jyotish Pandey, Adv.
UPON hearing the counsel the Court made the following O R D E R
1. The appeal is disposed of in terms of the signed order.
2. Pending application(s), if any, stand disposed of.
(CHANDRESH) (POOJA SHARMA) COURT MASTER (SH) COURT MASTER (NSH)
(Signed order is placed on the file) 10