Karnataka High Court
Sri. N Nagendra S/O Late N Malleshappa vs Smt. Chowdamma W/O Late A. Ramanna on 9 December, 2021
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 09thDAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
W.P.NO.103475/2021 (GM-CPC)
BETWEEN
SRI. N NAGENDRA S/O LATE N MALLESHAPPA
AGED ABOUT 45 YEARS,AGRICULTURIST,
R/O FARM HOUSE,
OPP. NARASIMHULU HOUSE,
NEAR HARIPRIYA NAGAR,
NEAR NALANDA SCHOOL,
SANGANAKALLU ROAD,
BALLARI - 583101, DISTRICT BALLARI.
...PETITIONER
(BY SRI.VEERESH R BUDIHAL, ADV.)
AND
SMT. CHOWDAMMA W/O LATE A. RAMANNA
AGED ABOUT 75 YEARS,AGRICULTURIST,
R/O MILLER PET,NEAR WATER TANK,
BALLARI - 583101,DISTRICT BALLARI.
.....RESPONDENT
(BY SRI.S.G.KADADAKATTI, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TOA. ISSUE
THE WRIT OF CERTIORARI QUASHING THE ORDER PASSED
BY THE II ADDITIONAL SENIOR CIVIL JUDGE BALLARI ON IA
NO VII IN E.P.NO. 166-2017 DATED 14-2-2019 VIDE
AT.ANNEXURE G, BY ALLOWING THE APPLICATION FILED BY
THE PETITIONER HEREIN AND ETC.,
:2:
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. A suit in O.S.No.98 of 2005 was filed seeking for declaration and for possession. The said suit was dismissed. However, on appeal, this dismissal was set aside and the suit came to be decreed in R.A.No.85 of 2008.
2. The decree passed by the Appellate Court was confirmed by this Court in R.S.A.No.5030 of 2010 and also by the Supreme Court. Thus, the decree for declaration and for possession has stood confirmed right up to the Apex Court.
3. An Execution Petition was filed to execute this decree and in these proceedings, a delivery warrant was issued. The bailiff, however, submitted a report stating that wife of the judgment debtor was obstructing execution of delivery warrant. Immediately thereafter, a third party objector filed an application obstructing the execution of the decree. This application was allowed by the Executing Court, but, however, this Court in W.P.No.106827 of 2019, set aside the said order and the application filed by the 3rd party objector was rejected.
:3:
4. As against the rejection of the 3rdparty objector's application, an SLP was preferred to the Supreme Court, but the same was also dismissed. Thus, the claim of even the 3rd party objector was rejected.
5. Thereafter, an application was filed by the Judgment Debtor to recall the delivery warrant on the ground that the notice of the execution petition was not served on him. This application was rejected. As against rejection, the Judgment Debtor preferred W.P.No.100295 of 2021. However, this Court dismissed the said writ petition.
6. After dismissal of the writ petition, the Judgment Debtor filed application to recall delivery warrant on the ground that there was a dispute about the identity of the property and also on the ground that there was standing crops on the schedule property.
7. The Trial Court by the order dated 12.04.2021, has rejected both its applications i.e. I.A.Nos.7 and 8. Thereafter delivery warrant was issued by the Executing Court. However, delivery warrant was returned un-executed by the bailiff with a report stating that the southern side :4: boundary of the suit property could not be identified. The Executing Court taking notice of the fact that southern side of the boundary was shown as 30 feet road. The bailiff could not fix the boundary and therefore granted liberty to the bailiff to get assistance of Surveyor to fix southern side of the boundary. The Trial Court accordingly has accepted the report of the bailiff and has directed the ADLR to assist the Court and the bailiff in fixing southern side of boundary of the suit schedule property.
8. It is against these orders that are passed on I.A.Nos.7, 8 and 9 and the order directing the ADLR to assist the bailiff to fix southern boundary, the present writ petition is filed by the Judgment Debtor.
9. The facts narrated above clearly prove the old adage that "the miseries of the decree holders begin after he obtains the decree".
10. The narration of the facts clearly indicate that an attempt has been made at every stage of the proceedings to thwart the execution of the decree. A decree which was confirmed by this Court in 2010 and confirmed even by the :5: Supreme Court was initially sought to be upset by putting up a 3rdparty objector. This claim of the 3rdparty object was also rejected and confirmed by the Apex Court.
11. Thereafter, an application has been made to recall delivery warrant on the ground that notice of the Execution Petition was not served. After this attempt had failed, the Judgment Debtor has now raised question relating to the identity of the property.
12. In my view, these facts by themselves conclusively prove that there is absolutely no merit in the allegation raised by the petitioner-Judgment Debtor. The argument that property could not be identified cannot really have any substance. Admittedly, it is not the case of the Judgment Debtor that at any stage of the proceedings right from filing of the suit till passing of order by the Supreme Court that there was a dispute regarding the identity of the property. Both the parties have fought a long and bitter battle regarding their entitlement over suit schedule property and during the entire length of this battle, there has never been any dispute raised by the petitioner-Judgment Debtor that there was any dispute relating to the identity of the property. :6: The attempt, therefore, to raise a dispute regarding the identity, is clearly an afterthought and designed solely to protract the proceedings.
13. The Trial Court, in my view, has passed not only a just order but also a proper order. While rejecting all the applications, the Trial Court, given the facts and circumstances of the case was absolutely justified in directing the ADLR to assist the bailiff in fixing the boundary and thereby ensuring that the decree holder was able to reap the fruits of his decree. I see absolutely no ground to entertain this writ petition. Writ petition is therefore dismissed.
Sd/-
JUDGE KGK