Karnataka High Court
Kamaraj S.Nadar S/O Y Nadar vs Y.Selvin Nadar S/O Y Nadar on 22 August, 2014
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22 n d DAY OF AUGUST 2014
BEFORE
THE HON'BLE MR. JUSTICE RAM MOHAN REDDY
W.P. No.104552 OF 2014 [GM-CPC]
BETWEEN:
KAMARAJ S.NADAR S/O. Y NADAR
AGE: 43 YEARS
OCC: AGRICULTURE & BUSINESS
R/O. SIDDANABHAVI, KUMTA TALUK
DIST: U K.
... PETITIONER
(By Sri. S G KADADAKATTI ADVOCATE)
AND:
Y.SELVIN NADAR S/O. Y NADAR
AGE: 47 YEARS,
OCC: AGRICULTURIST & BUSINESS,
R/O SIDDANABHAVI,
KUMTA TALUK, DIST: U K.
... RESPONDENT
(By Sri. R M KULKARNI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 19.03.2014 PASSED BY
LEARNED CIVIL JUDGE, KUMTA, IN EX.CASE NO.77/2008
VIDE ANNEXURE-G.
This petition coming on for Preliminary
Hearing in 'B' group this day, the Court made the
following:
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O R D E R
The decree holder in Execution Petition No.77/2008, on the file of the Civil Judge (Jr.Dn.), Kumta, aggrieved by the order dated 19.03.2014 insofar as it relates to a direction to refix the gate so that the decree holder and the judgment debtor amicably use the same and protect the property, as also to remove the iron sheets fixed to mark the boundary of the Judgment Debtor, in place of boundary stones, has presented this petition.
2. There can be no more dispute that O.S.No.69/2007 was allowed in part by judgment and decree dated 27.03.2008, which when challenged in R.A. No.19/2009 by the judgment debtor/defendant, was dismissed. The decree reads thus:-
"The defendant or persons claiming through or under them have no right to reduce or obstruct the user of the 7 feet width pathway by the plaintiff as reserved in the Sale Deed dated 07.02.2000 executed by Smt.Shobha James in favour :3: of the plaintiff which is registered as document No.282 of Book 1 Volume 722 at pages 162 to 165 of S.R.O., Kumta.
The defendant is directed to remove the compound wall and the obstruction which is obstructing the user of the said pathway by the plaintiff within a month from this day failing which the plaintiff is at liberty to get the same removed through the process of the Court at the cost of the defendant.
The suit of the plaintiff in respect of the relief as prayed in para 8(b) of the plaint is dismissed."
3. The decree holder having put into execution the said decree in Execution Petition No.77/2008, the executing court, by the order impugned, on the basis of the report received from the Bailiff, over execution of the warrant, observed that the decree holder forcibly put up iron sheets and separated the passage from the remaining property of the judgment debtor, which is not one of the directions or declarations in the :4: decree in O.S. No.69/2007 and therefore, directed removing the said sheets, while the judgment debtor was directed to put up boundary stones to demarcate the boundary, after leaving 7 feet width of passage. In addition, the executing court directed the decree holder to reinstall the iron gate of 7 feet width at the entrance of the passage, to avoid stray animals entering into the judgment debtor's property, while directing the decree holder and judgment debtor to amicably put to use the said gate for egress and ingress.
4. Heard the learned counsel, perused the pleadings.
5. The decree in O.S. No.69/2007 is to remove the obstruction in the passage way and therefore, the executing court was not justified in directing the decree holder to put up an obstruction by way of a gate at the entrance of the passage, though for securing the property of the judgment debtor. In my considered opinion, there :5: was no justification for the executing court to undo the decree which the decree holder had secured after protracted litigation.
6. If the judgment debtor and decree holder were to jointly and amicably decide that it is in their best interest to have a gate fixed at the entrance of the passage, so as to avoid trespass of cattle and other persons, it is open for them to negotiate and bring about an amicable settlement and cannot use the Court as a arm-twisting method to bring about such a settlement.
7. The direction issued by the trial court to the decree holder to remove the iron sheets fixed to demarcate the boundary of the property belonging to the judgment debtor cannot be said to be either perverse or contrary to the decree, calling for interference.
8. This petition is accordingly allowed in part. The direction issued by the executing court :6: to the decree holder to fix the gate at the entrance of the passage is quashed and in all other respects, the order impugned remains unaltered.
SD/-
JUDGE RK* Ct: Dk/-