Karnataka High Court
H Jagannath vs Smt Usha Rani on 28 September, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION NO.13560 OF 2019 (GM-CPC)
BETWEEN:
H. JAGANNATH
S/O HANUMAIAH
AGED ABOUT 68 YEARS
NO.320, 19TH E MAIN
1 'N' BLOCK
RAJAJINAGAR
BENGALURU-560010
...PETITIONER
(BY SRI: SHARATH S GOWDA, ADVOCATE)
AND:
1. SMT USHA RANI
W/O RAMAKRISHNA
AGED ABOUT 55 YEARS
R/AT NO.440, 19TH C MAIN
1ST N BLOCK, RAJAJINAGAR
BENGALURU-560010
2. K SURENDRA PRABHU
S/O LATE K M KRISHNAPPA
AGED ABOUT 58 YEARS
2
R/AT ESIC QUARTERS
H NO.27/4, NANDINI LAYOUT
BENGALURU-560096
3. K. RAVINDRA PRABHU
S/O LATE K M KRISHNAPPA
AGED ABOUT 50 YEARS,
R/AT NO.2391, 10TH MAIN,
E BLOCK, II STAGE
RAJAJINAGAR
BENGALURU-560010
4. K SHAILENDRA PRABHU
S/O LATE K M KRISHNAPPA
AGED ABOUT 45 YEARS,
R/AT NO.2391, 10TH MAIN,
E BLOCK, II STAGE
RAJAJINAGAR
BENGALURU-560010
...RESPONDENTS
(BY SRI: T SESHAGIRI RAO FOR C/RESEPONDENTS)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN
THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE
WRIT TO QUASH THE ORDER DATED 13.3.2019 ON
I.A.NO.4/2018 PASSED BY THE COURT OF IV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AT MAYOHALL UNIT, BENGALURU
(CCH-21) IN EXECUTION PETITION NO.25233/2018 THEREBY
ISSUING DELIVERY WARRANT IN RESPECT OF ENTIRE EXTENT
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OF C SCHEDULE PROPERTY MEASURING TO AN EXTENT OF
NORTH TO SOUTH 9 FEET EAST TO WEST 48 FEET WHICH IS
BEYOND THE SCOPE OF JUDGMENT AND DECREE DATED
16.11.2007 PASSED IN O.S.NO.1620/1994 VIDE ANNEXURE-A
AND TO ISSUE WRIT IN THE NATURE OF MANDAMUS OR ANY
OTHER APPROPRIATE WRIT DIRECTING THE COURT OF IV
ADDITIONAL CITY CIVIL AND SESSINS JUDGE AT MAYOHALL
UNIT, BENGALURU (CCH-21) IN EXECUTION PETITION
NO.25233/2018 TO RECALL THE DELIVERY WARRANT AS THE
SAME IS NOT IN TERMS OF DECREE PASSED IN
O.S.NO.1620/1994 AND ISSUE WRIT IN NATURE OF MANDAMUS
OR ANY OTHER APPROPRIATE WRIT DIRECTING THE COURT OF
IV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
MAYOHALL UNIT, BENGALURU (CCH-21) IN EXECUTION
PETITION NO.25233/2018 TO PASS APPROPRIATE ORDERS
CALLING UPON THE RESPONDENTS TO REDELIVER THE
POSSESSION OF AN EXTENT MEASURING NORTH TO SOUTH 1
FEET AND EAST TO WEST 48 FEET ON THE SOUTHERN PORTION
OF SCHEDULE C PROPERTY.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 24.09.2020 AND COMING ON FOR
PRONOUNCMENT OF ORDER, THROUGH VIDEO CONFERENCE,
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Two issues crop up for consideration in this petition filed under Articles 226 and 227 of the Constitution of India namely, (1) Whether the executing court can go beyond the decree under execution?
(2) Whether the jurisdiction under Articles 226 and 227 of the Constitution of India could be exercised against the orders of the Executing Court? If so, whether the delivery warrant issued by the Executing Court and the consequent delivery of land measuring North to South 1' and East to West 48' on the Southern portion of the schedule property could be sustained under law and facts of the case?
2. The facts giving rise to above questions are as follows:-
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Respondent Nos.1 and 2 herein (hereinafter referred to as the "plaintiffs") filed a suit for declaration in O.S.No.1620/1994 to declare them as the absolute owners of 'C' schedule property and to direct the petitioner herein (hereinafter referred to as "defendant") to hand over possession of 'C' schedule property, by directing him to remove the new wall put up over the schedule 'C' property.
3. Schedule 'C' property is described as portion of property bearing site No.321 belonging to the plaintiffs, situated at 19th 'E' Main, 1st 'N' Block, Rajajinagar, Bengaluru -10, measuing East to West - 48' and North to South 9', bounded within the boundaries mentioned therein. However, after contest, the Trial Court decreed the suit of the plaintiffs with the following order:-
"The suit is decreed declaring that the plaintiffs are the owners of 'C' schedule property to the extent of North to South 8' and East to West 48'. The defendant Jagannath is directed to remove the compound wall and deliver vacant possession within two months to the plaintiffs."6
4. As could be seen from the above judgment and decree, eventhough 'C' schedule property measured 48' East to West and 9' North to South, the decree was granted in favour of the plaintiffs only to the extent of North to South 8' and East to West 48'. This judgment and decree is confirmed by this Court, by order dated 19.04.2018 in RFA.No.228/2008. It is stated that the SLP preferred by the defendant / petitioner herein against the judgment and order in RFA.No.228/2008 has been dismissed by the Hon'ble Supreme Court by order dated 12.03.2019 in SLP.No.25764/2018. Thus the decree passed by the Trial Court has attained finality.
5. Plaintiffs then sought to execute the above decree by making an application in Execution Case No.25233/2018. In the execution petition, the decree holders / plaintiffs sought for issuance of delivery warrant to remove compound wall and to deliver vacant possession of 'C' schedule property pursuant to judgment and decree passed in O.S.No.1620/1994. In the 7 verifying affidavit filed in support of the execution petition, the decree holder No.1 affirmed that the plaintiffs have obtained a decree declaring them as the owners of the suit schedule property to an extent of North to South 8' and East to West 48'. Thus, it is clear that even in the execution petition, the decree holders namely the plaintiffs sought delivery of an extent of North to South 8' and East to West 48'. But, while issuing the delivery warrant, the entire 'C' schedule property was directed to be delivered to the decree holders and accordingly, the Bailiff put the decree-holders in possession of the entire 'C' schedule property namely East to West 48' and North to South 9'; despite the objection of the judgment-debtor / petitioner herein and consequently, the Executing Court recorded full satisfaction and closed the execution petition.
6. Feeling aggrieved by the order passed by the Executing Court dated 13.03.2019 issuing delivery warrant and the consequential delivery of schedule 'C' property contrary to the decree passed in O.S.No.1620/1994, the petitioner has 8 sought for a writ in the nature of mandamus or any other writ directing the Executing Court to recall the delivery warrant and / or in the alternative to redeliver possession to an extent measuring North to South 1' and East to West 48' on the southern portion of 'C' schedule property to petitioner / judgment-debtor.
7. Respondents / decree-holders have opposed the petition, on the ground that the reliefs claimed by the petitioner have become infructuous. The Executing Court having executed the decree, the only remedy available to the judgment-debtor is to make necessary application to the Executing Court under section 47 of CPC and not by way of writ petition. In the statement of objections, it is contended that the petitioner before this Court namely the judgment-debtor is the purchaser of site No.320 from S.T.Nagaraj. The said S.T.Nagaraj was the allottee of site No.320. The dimension of the site was same as that of the site No.321 purchased by the decree-holders. However, the petitioner taking advantage of the mistake that 9 had crept in his sale-deed as regards measurements which was erroneously mentioned as 48' x 40', encroached a portion of site No.321 and therefore, the vendor of the decree-holders filed a suit in O.S.No.1620/1994 for declaration and possession of 'C' schedule property. The said suit came to be decreed on 16.11.2007. The appeal preferred against the said judgment has been dismissed by the learned Single Judge of this Court in RFA.No.228/2008 dated 19.04.2018. The SLP preferred against the said order also has been dismissed. The warrant has been duly executed on 13.03.2019 and the decree-holders having taken possession of the property by due process of law, nothing wrong is committed by the Executing Court.
8. In the course of the arguments, learned counsel for respondents placing reliance on the decision of the Hon'ble Supreme Court in B.V.PATANKAR & Others vs. C.G.SASTRY, AIR 1961 SC 272, with reference to para 8, has emphasized that the decree in question having already been executed, prayer (a) has become infructuous. In view of the specific provision available 10 under the Code, recall of the warrant cannot be ordered by this Court in exercise of the powers under Article 226 of the Constitution of India. Even the relief of redelivery of the property cannot be granted to the petitioner under Articles 226/227 of the Constitution of India as adequate remedy is available to the petitioner to make necessary application under section 47 of CPC before the Executing Court. It is in this background, the points framed above arise for consideration.
9. Insofar as point No.1 is concerned, the law is now well settled that an Executing Court cannot go beyond the decree (see AIR 1992 SC 1740). Executing Court has to execute the decree as it stands. It cannot modify or vary the terms of the decree (see AIR 1951 SC 189). This principle, therefore, needs no further elaboration. The controversy involved in this case, if tested against the touchstone of the above principles, in my view, it leaves no manner of doubt that in the instant case, the Executing Court has blatantly exceeded 11 its jurisdiction in delivering possession of North to South 1 feet and East to West 48 feet.
10. Undisputedly, the decree under execution was clear and unambiguous. By the said judgment and decree, the decree holders were declared as the owners of 'C' schedule property only to the extent of North to South 8' and East to West 48'. There was no decree for the entire extent of 'C' schedule property measuring North to South 9' and East to West 48'. Therefore, the Executing Court could not have issued delivery warrant contrary to the decree nor could it have accepted the delivery report submitted by the Bailiff which, on the face of it, indicated that the decree holders were put in possession of an extent of North to South 9' and East to West 48' which is patently contrary to the decree in O.S.No.1620/1994.
11. The argument of the learned counsel for decree holders that this Court in RFA.No.228/2008 has recorded a finding to the effect that the plaintiffs are justified in claiming possession of 48' x 9' land in occupation of the defendant does 12 not salvage the situation. No doubt, it is true in para 17 of the judgment in RFA. No.228/2008, this Court has observed that from the documentary evidence, it was clear that the defendant claimed dimension of the site No.320 as 48' x 40' only for the reason that the possession certificate and the sale deeds contain measurement as 48' x 40', which were found to be incorrect and therefore, he cannot take advantage of an error that has crept in at the inception. Further it was observed that, it is not the case of the defendant that he has been in possession of an extra piece of land adverse to the interest of the BDA or the plaintiffs and therefore, the plaintiffs are justified in claiming possession of 48' x 9' of land in the occupation of the defendant. But, what is relevant to be noted is that, this Court did not set-aside the findings of the Trial Court on issue No.1 rather in RFA.No.228/2008 this court has confirmed the issue No.1 framed in the suit in favour of judgment debtor thereby impliedly rejecting the claim of the decree-holders for possession of North to South 1' and East to West 48'. There is no further challenge to this finding. As a result, the decree passed by the Trial Court 13 became final and therefore, there was no basis for the Trial Court to deliver possession of land beyond the terms of the decree.
12. The second line of argument advanced by the learned counsel for respondents / decree holders that the decree holders have purchased one cent of land from the BDA and they were in lawful possession of the said property also does not validate the action of the Executing Court. Undeniably, the subject matter of the suit was the property purchased by the plaintiffs under registered sale deed from the erstwhile owners and not with regard to the purchase made by them from the BDA. Even if it is accepted that the decree holders were entitled to 1 feet of land purchased by them from BDA, yet, the decree obtained by them in respect of the part of 'C' schedule property could not have been enforced against the judgment-debtor. It was not the case of the decree holders that the property purchased by them from the BDA was encroached by the judgment debtor. This Court has also observed that, "It is not 14 the case of the defendant that he has been in possession of extra piece of land adverse to the interest of BDA or the plaintiffs". Therefore, the decree obtained in O.S.No.1620/1994 could not have been enforced against the judgment debtor in respect of the property which was not the subject matter of the suit. Therefore, viewed from any angle, the delivery warrant issued by the executing Court and the consequent delivery of additional extent of land to the decree holders is indefensible and has to be held as without jurisdiction.
13. Having come to the conclusion that the delivery warrant issued by the Executing Court and the consequent delivery of possession insofar as North to South 1' and East to West 48' is without jurisdiction and contrary to the terms of the decree, the question now needs to be answered is, Whether the High Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India, could interfere in the order passed by the Executing Court?
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14. Learned counsel for plaintiffs / decree-holders has assailed the jurisdiction of this Court based on section 47 of the CPC and the law laid down by the Hon'ble Supreme Court in the case of B.V.PATANKAR & Others vs. C.G.SHASTRI, AIR 1961 SC 272, in para 8 whereof, it is held as under:
The inapplicability of section 47 to the proceedings out of which the appeal has arisen was also raised before us, but that contention is equally unsubstantial because the question whether the decree was completely satisfied and therefore the court became functus officio is a matter relating to execution, satisfaction and discharge of the decree. It was held by this Court in Ramanna v. Nallaparaju (S) AIR 1956 SC 87 at p. 91 that:
"When a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application under section 47, and not in a separate suit ".16
15. In the said case, the question for decision of the Hon'ble Apex Court mainly turned upon the applicability of the provisions of the House Rent Control Order and how they were applicable to the proceedings in the suit and the execution and in that context, it was held that the question with regard to the execution, discharge and satisfaction of the decree could be agitated only by an application under section 47 and not in a separate suit.
16. In the instant case, the question raised by the petitioner / judgment-debtor does not relate to the execution, satisfaction or discharge of the decree rather the controversy has arisen on account of the delivery of possession of an additional extent of land which is not covered under the decree. The Executing Court can decide under section 47 of CPC only the question relating to the execution, satisfaction and discharge of the decree which means that the question raised between the parties should essentially relate to the decree passed by the Trial Court and its execution. But in the instant case, the judgment- 17 debtor is aggrieved by the action of the Executing Court in delivering possession of the property which is not the subject matter of the suit or the decree under execution. This question, therefore, in my view, is beyond the purview of section 47 of CPC and cannot be decided by the executing court. It is an independent lis. Therefore, the argument of the learned counsel for decree holders that, on account of the availability of the alternative remedy under section 47 of CPC, the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India is barred cannot be accepted.
17. It is now well settled that the power of 'superintendence' conferred by the High Court by Article 227 of the Constitution of India is not confined to administrative superintendence only, but it includes the power of judicial revision also. This power involves a duty on the High Court to keep the inferior courts and Tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in legal manner. When there is flagrant abuse of 18 the powers and the Trial Court acts in excess of jurisdiction or erroneously assumes jurisdiction and the judgment and order passed by the sub-ordinate Court suffers from error of law apparent on the face of record, the High Court is warranted to interfere under Article 227 of the Constitution of India. Mere existence of alternative remedy cannot preclude the High Court from exercising its powers under Article 227 of the Constitution of India to interfere with an order passed in flagrant violation of law. As held by the Hon'ble Apex Court, "The rule of alternative remedy is only a consideration for exercise of discretion and does not exclude jurisdiction of the High Court in exceptional cases where the action of the inferior courts is in excess of its jurisdiction and an abuse of process of court."
18. In the instant case, on analyzing the entire material on record, I am of the clear view that the Executing Court has exceeded its jurisdiction in issuing a delivery warrant contrary to the terms of the decree under execution and delivering possession of North to South 1' and East to West 48' to the 19 decree holders which is not the subject matter of O.S.No.1620/1994. The question arisen between the parties does not fall within the ambit of section 47 of CPC. Hence, the contentions urged by learned counsel for decree holders based on the availability of an alternative remedy is also liable to be rejected.
For the reasons discussed above, the writ petition is allowed. The order dated 13.3.2019 passed by the Court of IV Additional City Civil and Sessions Judge at Mayohall Unit, Bengaluru (CCH-21) in Execution Petition No.25233/2018 issuing delivery warrant insofar as it relates to an extent of North to South 1 feet, East to West 48 feet is set aside and the consequent order passed by the Executing Court delivering possession of this extent of land is set-aside. The Executing court is directed to redeliver the possession of the above extent of land measuring North to South 1 feet, East to West 48 feet on the southern portion of schedule C property to the judgment- 20 debtor within thirty days from the date of receipt of a copy of this order.
Sd/-
JUDGE Bss