Karnataka High Court
Sri P Narayana Hebbar vs Smt Prema on 4 October, 2018
Author: S G Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.1020 OF 2015(GM-CPC)
BETWEEN:
Sri. P.Narayana Hebbar,
S/o Kundeshwara Nagappa Hebbar,
Aged about 78 years,
Proprietor, Nithyananda,
Restaurant, at Door No.38/VI,
37A/VI and 38-I/VI of Kundapura
Kasaba Village, Kundapura Taluk. ... Petitioner
(By Sri. N S Bhat, Advocate)
AND:
1. Smt. Prema,
W/o K. Annaji Shet,
Aged about 62 years.
2. Mr. Vinayaka Raikar,
S/o K. Annaji Shet,
Aged about 47 years,
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3. Mr. Raghavendra Raikar
S/o K. Annaji Shet,
Aged about 42 years.
4. Smt. Nirmala,
D/o K. Annaji Shet,
Aged about 51 years.
5. Smt. Vinayaka Shet,
D/o K. Annaji Shet,
Aged about 49 years.
All are R/at Near Municipal Office,
Municipal Road,
Kundapur Hobli & Taluk-576 201,
District : Udupi. ... Respondents
(By Sri Vigneshwara.U, Advocate)
****
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the impugned
order dated 28.06.2014 passed by the court of Principal
Civil Judge & JMFC Kundapura in Ex.C.No.15/2010
(in O.S.No.200/2003) vide Annexure-G, and consequently
to restore Ex.C.15/2010 and allow I.A.No.VI under Section
47(1) R/w Section 151 of CPC as prayed for by the
petitioner.
This Writ Petition coming on for Preliminary
Hearing this day, the court made the following:
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ORDER
The petitioner is before this Court under Article 227 of the Constitution of India assailing the order dated 28.06.2014 in Execution No.15/2010 on I.A.No.VI passed by the Principal Civil Judge and JMFC, Kundapura.
2. The petitioner is judgment debtor and respondents are decree holders in Execution No.15/2010 filed to execute the judgment and decree dated 17.12.2007 in O.S.No.200/2003. The decree holders had filed suit in O.S.No.200/2003 for ejectment and the said suit was decreed directing the judgment debtor- petitioner herein to deliver vacant possession of the suit schedule premises. The judgment debtor filed application I.A.No.VI under Section 47(1) read with Section 151 of CPC to direct the decree holders to remove and vacate portion where the judgment debtor has constructed cement sheet pent roof in front of suit 4 schedule property. The said application came to be rejected vide order dated 28.06.2014, which is impugned in this writ petition.
3. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the writ papers.
4. Learned counsel for the petitioner submits that as per the decree dated 07.01.2008, he has handed over suit schedule property, but he submits that he had constructed cement sheet pent roof in front of the suit schedule property and on the said portion of the property, the decree holders have no right. Hence, he submits that the decree holders shall hand over that portion of the property to the judgment debtor.
5. Learned counsel for the respondents submits that the portion is part and parcel of the premises and it is not a separate property. Construction if any, made by 5 the judgment debtor is only with regard to front sheet pent roof to protect from rain water and sun shade.
6. Admittedly, the petitioner-judgment debtor has handed over premises in question pursuance to decree dated 07.01.2008 in O.S.No.200/2003. On the portion of the land where pent roof in front of the suit schedule property is said to have been constructed, the judgment debtor has no right on the said portion. The executing Court has rightly rejected the application filed by the judgment debtor. The executing Court has rightly observed that it is not a separate schedule premises and it does not have any separate door number.
7. As the judgment debtor has no manner of right over the said property, the order passed by the trial Court is proper and correct. No error or illegality is committed by the trial Court by rejecting the application. 6
Accordingly, writ petition is dismissed as devoid of merit.
Sd/-
JUDGE RB