Karnataka High Court
Smt. Jakshamma vs Sri G T Ramesha on 25 June, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.29634/2019 (GM-CPC)
BETWEEN:
SMT. JAKSHAMMA
AGED 57 YEARS
W/O MANJAPPA
R/AT. SAGAR ROAD
SORABA TOWN
SHIVAMOGGA 574229.
Digitally signed
...PETITIONER
by RUPA V
Location: High (BY SRI. ROHIT URS D, ADV., FOR
Court of SMT. MAMATHA ROY, ADV.,)
karnataka
AND:
1. SRI. G.T. RAMESHA
S/O THIMMANNA
AGED ABOUT 47 YEARS
ELECTRICAL CONTRACTOR.
2. SRI. G.T. SURESHA
S/O THIMMANNA
AGED ABOUT 45 YEARS
ELECTRICAL CONTRACTOR.
BOTH ARE RESIDING AT
SAGAR ROAD, SORABA TOWN
SHIVAMOGGA 574229.
...RESPONDENTS
(R1 SERVED V/O/DTD:08.07.2022
NOTICE TO R2 H/S)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI QUASHING THE ORDER DTD:8.4.2019 PASSED BY THE
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CIVIL JUDGE, JMFC AT SORABA ON IA NO.VIII IN EXECUTION
PETITION NO.17/2008 VIDE ANNEXURE-A & ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
20.06.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS
DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CAV ORDER
This writ petition is filed challenging the order dated
08.04.2019 passed by the Civil Judge and JMFC, Soraba on
I.A.No.VIII in Ex.P.No.17/2008.
2. Heard.
3. Sri.Rohit Urs D, learned counsel for the petitioner
submits that the petitioner filed a suit for mandatory injunction
for demolition of the constructed structure put up by the
respondents-judgment debtors (JDRs) in 'B' Schedule property
by encroaching upon the property of the petitioner. The said
suit came to be decreed. The petitioner filed an execution
petition to execute the judgment and decree. The
respondents-JDRs filed an application for appointment of an
Engineer as the Court Commissioner to measure Schedule A
and B properties which came to be dismissed. The decree
came to be executed and thereafter, the respondents-JDRs filed
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an application claiming damages of Rs.3,00,000/- alleging that
during the execution, the Bailiff has caused damage to other
properties. After two years of the execution, another
application was filed by the respondents-JDRs claiming
damages of Rs.35,00,000/- and also for appointment of the
Court Commissioner to measure the damages. The said
application was allowed without considering the material on
record. It is further submitted that the petitioner obtained the
decree for mandatory injunction on 30.11.2007. However, the
respondents-JDRs dodged the proceedings for one or the other
reason and after execution of the decree, a frivolous application
was filed contrary to their stand in the execution proceedings.
Without considering any of these aspects, the Executing Court
allowed the application for appointment of the Court
Commissioner. It is also submitted that the filing of the
application by the respondents-JDRs is an abuse of the process
of law and the Executing Court failed to take note of its earlier
orders and mechanically allowed the application under the
impugned order.
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4. Though the respondents are served, they remained
absent.
5. I have heard the arguments of the learned counsel
for the petitioner and perused the material available on record.
I have given my anxious consideration to the submission
advanced by the learned counsel for the petitioner.
6. The petitioner obtained a decree for mandatory
injunction in O.S.No.31/2004 on 30.11.2007. An execution
petition came to be filed in Ex.P.No.17/2008 to execute the
said judgment and decree by demolishing the constructed
structure of 2¼ feet East-West on the northern side of the suit
Schedule 'B' property. The records indicate that the
respondents' appeals in R.A.No.508/2007 and RSA
No.212/2008 were dismissed. In the execution proceedings,
the respondents-JDRs filed an application in I.A.No.VIII under
Order 26 Rule 9 of the Code of Civil Procedure, 1908 seeking
appointment of an Engineer as the Court Commissioner to
measure Schedule A and B properties. The said application was
duly considered by the Executing Court and was rejected vide
order dated 27.11.2013. The Executing Court vide order dated
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06.07.2015 directed the Bailiff to demolish the constructed
structure put up by the JDRs encroaching to the extent of 2¼
feet as per the decree, with the assistance of a Junior Engineer,
PWD, Soraba and the police aid with both men and women.
The case was ordered to be called on 15.07.2015. The
Executing Court recorded the finding in the said order that even
after dismissal of the appeals filed by the JDRs, till today the
JDRs have failed to obey the decree. The JDRs filed another
application in I.A.No.XVIII to measure Schedule A and B
properties through the PWD Engineer and Bailiff before
demolishing the constructed structure. The Executing Court
rejected the said application on 10.08.2016 wherein it has
recorded the finding that the order of demolition of the
constructed structure by the Executing Court was challenged by
the JDRs before this Court in W.P.No.31308/2015. The said
writ petition was also dismissed on 14.07.2016. This Court has
made the following observation:
"Once the decree has been passed by the trial
Court after considering the available evidence, at the
execution stage, the execution Court cannot deviate
from the decree in any manner and therefore, through
the resort to Articles 226 and 227 of the Constitution
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of India fresh such evidence cannot be entertained and
execution cannot be stalled in the writ petition. Thus,
the writ petition are misconceived and liable to be
dismissed."
7. The respondents-JDRs filed a memo dated
20.08.2016 in the execution proceedings stating that he is
undertaking to execute the order of demolition of the
constructed structure put up by them encroaching 2¼ feet East
to West on the northern side of suit Schedule 'B' property as
per the decree. The Executing Court vide order dated
24.08.2016 allowed the memo subject to the following
conditions:
"1. Fifteen days (15) time is granted to the
Judgment Debtor to demolish the constructed structure
as identified by PWD Engineer and Court bailiff.
2. The Judgment Debtor is hereby directed to
demolish the constructed structure within 15 days from
today.
3. The Judgment Debtor is directed to report
the demolition of the constructed structure on or before
08.09.2016.
4. If the Judgment Debtor fails to demolish the
constructed structure as undertook by him., the Court
bailiff without any delay has to demolish the structure as
ordered by the Court.
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5. If any damage occurs at the time of
demolition of the constructed structure, the Judgment
Debtor himself will be liable for the same.
6. The Court bailiff is hereby directed to report
the demolition work to this Court once in three days from
today."
8. The records indicate that the respondents-JDRs did
not adhere to the undertaking given by them in the memo
dated 20.08.2016. However, they filed another memo along
with an affidavit stating that though the Court directed the
Court Bailiff to execute the decree with the assistance of the
PWD Engineer, neither the PWD Engineer or the Bailiff
inspected the spot nor any sketch is prepared for demolition of
the illegal structure and under the pressure of the decree
holder, compound wall and building is demolished more than
the decree and damage is caused to the tune of Rs.3,00,000/-.
The Executing Court, considering the earlier orders passed by it
and also considering the conduct of the respondents-JDRs,
recorded detailed reasons and rejected the affidavit of the
respondents-JDRs with a cost of Rs.2,000/- and directed the
Bailiff to execute the decree forthwith, vide order dated
24.10.2016.
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9. The records indicate that the Bailiff with the
assistance of police has executed the judgment and decree in
question and filed a report at Annexure-D which has been
accepted by the Executing Court. The respondents-JDRs filed
another application under Order XXVI Rule 9 of the CPC praying
to appoint an expert Civil Engineer as the Court Commissioner
to ascertain the damages caused to the respondents-JDRs for
the act of illegal demolition of the schedule property of the
respondents-JDRs. The said application, under the impugned
order was allowed by the Executing Court on the ground that
there is demolition of other building which was not covered by
the suit schedule property and the Executive Engineer PWD,
Soraba was appointed as the Court Commissioner to ascertain
the assertions made in the application. The Executing Court,
while considering the application filed by the respondents-JDRs
has mechanically allowed the same without taking note of the
fact that the respondents-JDRs have dodged the execution
proceedings on one or the other pretext. The records indicate
that the respondents-JDRs have made all attempts to delay the
execution of the decree obtained by the petitioner at the first
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instance and filed a similar application to measure and mark
the portion required for demolition. The said applications came
to be rejected by the Executing Court.
10. Thereafter, after the order of demolition with the
police help, the respondents-JDRs filed an application seeking
to measure the property through PWD Engineer and Bailiff
before demolishing the constructed structure. The Executing
Court, taking note of the observations of this Court in the writ
petition, rejected the said application by imposing a cost of
Rs.2,000/-. Again, the respondents-JDRs filed a memo of
undertaking dated 20.08.2016 to demolish the encroached
portion and the Executing Court has shown indulgence.
However, the said undertaking was not complied and it was
dodged further. Later, memo along with an affidavit was filed
by the respondents-JDRs claiming that excess demolition has
caused loss to the tune of Rs.3,00,000/-. The said affidavit and
memo came to be rejected by the Executing Court by imposing
cost. Thereafter, again another application was filed for
appointment of the Court Commissioner claiming that there is
damage to the tune of Rs.35,00,000/-. In my considered view,
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the Executing Court has committed a grave error in allowing
the application of the respondents-JDRs without looking into
the earlier orders passed by it and the stand of the
respondents-JDRs. The respondents-JDRs cannot be allowed to
approbate and reprobate in the execution proceedings. The
respondents-JDRs have suffered numerous orders passed by
the Executing Court. They agreed to remove the encroachment
on their own but failed to adhere to the same. Later, they
claim that there is excess demolition to the tune of
Rs.35,00,000/- and seek for appointment of the Court
Commissioner. The Executing Court has failed to take note of
the fact that the respondents-JDRs have not laid any
foundation for the tall claim of Rs.35,00,000/- and they seek
for the appointment of the Court Commissioner to prove such
claim. Mere assertion in the application for appointment of the
Court Commissioner cannot be the sole basis for the Executing
Court to jump to the conclusion and order for appointment of
the Court Commissioner to ascertain the damage. The
appointment of the Court Commissioner is to ascertain the
factual assertions made by the parties to the proceedings which
would be based on the existing pleadings and the material
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available on record. In the instant case, the filing of the
application by the respondents-JDRs is an abuse of the process
of law which is required to be dealt with iron hand. I am of the
considered view that the Executing Court has clearly erred in
entertaining the application filed by the respondents-JDRs and
in passing the impugned order.
11. For the aforementioned reasons, I proceed to pass
the following:
ORDER
(i) The writ petition is allowed.
(ii) The impugned order dated 08.04.2019 passed by the Civil Judge and JMFC, Soraba on I.A.No.VIII in Ex.P.No.17/2008 is set aside. Consequently, I.A No.VIII filed by the respondents-JDRs under Order XXVI Rule 9 of the CPC in Ex.P.No.17/2008 is rejected with exemplary cost of Rs.25,000/- payable by the respondents-JDRs to the petitioner-decree holder.
Sd/-
(VIJAYKUMAR A. PATIL) JUDGE RV List No.: 1 Sl No.: 1