Karnataka High Court
Smt. Devakki W/O Lagamanna Hammannavar vs Smt. Kasavva D/O Ramappa Patil on 23 September, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC-D:13602
WP No. 105456 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 105456 OF 2024 (GM-CPC)
BETWEEN:
SMT. DEVAKKI W/O. LAGAMANNA HAMMANNAVAR,
AGE: 65 YEARS, OCC: HOUSEHOLD WORK,
R/O. INGALI, TQ: HUKKERI,
DISTRICT: BELAGAVI-591309.
...PETITIONER
(BY SRI. S.S. YADRAMI, SR. COUNSEL FOR
SRI. GIRISH V. BHAT, ADVOCATE)
AND:
SMT. KASAVVA D/O. RAMAPPA PATIL,
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O. INGALI, TQ: HUKKERI,
DISTRICT: BELAGAVI-591309.
...RESPONDENT
(BY SRI. RAMESH N. MISALE, ADVOCATE FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED
GIRIJA A 02-09-2024 PASSED ON I.A.NO.I IN EP NO.68/2023 PASSED BY THE
BYAHATTI
SENIOR CIVIL JUDGE, HUKKERI VIDE ANNEXURE-R GRANTING
Location: HIGH
COURT OF TEMPORARY INJUNCTION IN FAVOUR OF THE DHR RESTRAINING
KARANTAKA
DHARWAD
BENCH
THE JDR FROM ALIENATING THE SUIT SCHEDULE PROPERTIES; TO
QUASH THE IMPUGNED ORDER DATED 02-09-2024 PASSED ON
I.A.NO.II IN EP NO.68/2023 PASSED BY THE SENIOR CIVIL JUDGE,
HUKKERI VIDE ANNEXURE-R ISSUING POSSESSION WARRANT
AGAINST THE PETITIONER; TO QUASH THE IMPUGNED ORDER
DATED 02-09-2024 PASSED ON I.A.NO.III IN EP NO.68/2023
PASSED BY THE SENIOR CIVIL JUDGE, HUKKERI VIDE ANNEXURE-R
AND CONSEQUENTLY ALLOW THE I.A.NO.III DATED 08.04.2024 VIDE
ANNEXURE-M AND DISMISS THE EXECUTION PETITION; TO QUASH
THE IMPUGNED ORDER DATED 02-09-2024 PASSED ON I.A.NO.IV IN
EP NO.68/2023 PASSED BY THE SENIOR CIVIL JUDGE HUKKERI VIDE
ANNEXURE-R AND CONSEQUENTLY ALLOW THE I.A.NO.IV DATED
27.05.2024 VIDE ANNEXURE-P AND DISMISS THE EXECUTION
PETITION IN EP NO.68/2023.
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NC: 2024:KHC-D:13602
WP No. 105456 of 2024
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)
1. Heard the learned Senior Counsel appearing for the petitioner and also the learned counsel appearing for the respondent.
2. The prayers sought in this writ petition are to quash the order dated 02.09.2024 passed by the Senior Civil Judge, Hukkeri ('the Trial Court', for short) in allowing I.A.Nos.I and II filed by the respondent herein in E.P.No.68/2023 and also rejection of I.A.Nos.III and IV filed by the petitioner herein in E.P.No.68/2023 and pass such other orders as deems fit in the circumstances of the case.
3. The factual matrix of the case of the petitioner is that;
3.1. The petitioner was the plaintiff in O.S.No.69/2006 before the Court of Senior Civil -3- NC: 2024:KHC-D:13602 WP No. 105456 of 2024 Judge, Hukkeri and the suit filed by the petitioner was dismissed and the claim of the defendant, who is the respondent herein on counter claim is declined as the legally wedded wife of deceased Lagamanna Appanna Hammannavar and the plaintiff also i.e., the petitioner herein is restrained by an order of injunction that she should not cause any interference or obstruction in the peaceful possession and enjoyment of the suit schedule properties by the petitioner.
3.2. It is not in dispute that the said judgment and decree passed by the Trail Court was challenged in the appeal in R.A.No.364/2011 before the First Appellate Court and the same is also challenged before this Court in RSA No.5446/2012 and the order of the First Appellate Court was reversed vide order dated 13.07.2023 and this Court confirmed the -4- NC: 2024:KHC-D:13602 WP No. 105456 of 2024 judgment of the Trial Court by setting aside the judgment of the First Appellate Court. 3.3. Against the said order a SLP was filed before the Hon'ble Apex Court in SLP No.20262/2023 and the Hon'ble Apex Court also dismissed the said SLP and confirmed the order of the Trial Court and also the order of this Court. 3.4. Based on the said order, Execution Petition is filed and the same is numbered as E.P.No.68/2023. In the Execution Petition, prayer is sought that the Judgment Debtor is causing obstructions to the Decree Holder by violating the injunction order passed by the Senior Civil Judge, Hukkeri, in O.S.No.69/2006, which is confirmed in RSA No.5446/2012 and other prayer is sought that the Judgment Debtor may please be arrested and kept in civil prison and also by attaching her properties for violating the injunction order and also the seeking direction to the PSI, Yamakanmardi to -5- NC: 2024:KHC-D:13602 WP No. 105456 of 2024 assist the Decree Holder to remove the obstruction of the Judgment Debtor and any other relief as deems fit in the circumstances of the case.
3.5. During the pendency of the Execution Petition, all these four I.As. are filed. I.A.No.I is filed by the Decree Holder/respondent herein under Order 39 Rules 1 and 2 of CPC for granting temporary injunction restraining the Judgment Debtor/petitioner herein from alienating the suit properties, I.A.No.II is filed under Order 21 Rule 35 R/w. Section 151 of CPC by the Decree Holder/respondent herein praying to order for possession of the properties by issuing possession warrant. The other two applications i.e., I.A.Nos.III is filed under Section 151 of CPC by the Judgment Debtor/petitioner herein praying the Court to dismiss the Execution Petition and so also filed I.A.No.IV invoking -6- NC: 2024:KHC-D:13602 WP No. 105456 of 2024 Section 47 of the CPC to dismiss the Execution Petition.
3.6. All the applications are considered together by the Trial Court. The first two applications are resisted by the petitioner herein by filing statement of objections and other two applications filed by the petitioner herein are also resisted by the Decree Holder/respondent herein. The Trial Court having considered the grounds urged in the applications, formulated the following points for consideration:
1. Whether the DHr has made out prima-facie case?
2. Whether balance of convenience leans in favour of the DHr?
3. Whether the DHr will be put to irreparable loss and injury if TI order is not granted as per IA-1?
4. Whether the DHr has made out a bonafide grounds for issuing possession warrant of suit properties as prayed in IA No.II?-7-
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5. Whether the JDr has made out sufficient grounds for rejecting the EP as per IAs No.III and IV?
6. Whether the applicant/JDr has made out sufficient grounds for investigation and enquiry of present EP U/sec 47 of CPC as per IA No.IV?
3.7. The Trial Court answered points No. 1, 2, 3 and 4 in the affirmative and points No.5 and 6 in the negative and dismissed the applications filed by the Judgment Debtor/petitioner herein. Being aggrieved by the same, the Judgment Debtor/petitioner is before this Court in the present petition.
4. The Trial Court having considered the grounds which have been urged in the applications as well as the objections filed by the respective parties, considered all the points together and came to the conclusion that the contention of the JDR cannot be acceptable, because already suit filed by the petitioner was dismissed in O.S.No.69/2006 and the same has been -8- NC: 2024:KHC-D:13602 WP No. 105456 of 2024 attained its finality confirming the order in RSA and the Hon'ble Apex Court also dismissed the same. The Judgment Debtor has no right over the suit schedule properties, but without having any manner of right, title and interest over the suit properties, she has got entered her name in the suit properties and also causing obstruction to the Decree Holder and also trying to alienate the suit properties by taking advantage of her name appearing in the suit properties, which is not permissible under law.
5. The Trial Court has also made an observation that, even though the Decree Holder has filed the Execution Petition as per the decree passed in O.S.No.69/2006, but during the pendency of the cases and appeals, the JDr has got changed the revenue records and entered her names to the suit properties, as such, DHr has rightly claimed the possession of the suit properties. The Trial Court also taken note of the judgment of the Hon'ble Supreme -9- NC: 2024:KHC-D:13602 WP No. 105456 of 2024 Court reported in (2023) 7 SCC 307 in the case of Sanwarlal Agrawal and Others V/s. Ashok Kumar Kothari and Others, wherein it is clearly held that, even if there is any ambiguity in the decree, it is for the executing court to consider the decree if necessary after referring to the judgment. If sufficient guidance is not available even from the judgment, the Court is even free to refer to the pleadings so as to construe the true import of the decree. No doubt, the court cannot go behind the decree or beyond the decree but while executing a decree, in case of any ambiguity, it is necessary to construe the decree so as to give effect to the intention of the parties and it is undeniable that an executing court can construe a decree if it is ambiguous. The Trial Court referring to the said judgment came to the conclusion that the said decision is squarely applicable to the present case on hand in favour of DHr and it is not helpful to the JDr in any way. It is also held that, the court cannot
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 stop/withheld the proceedings of this Execution Petition. On the other hand as per the judgment and decree passed by the Trial Court, the Dhr is entitled for the possession of suit properties and she is also entitled to protect her right in the suit properties. Hence, without much discussion the Trial Court came to the conclusion that, the DHr has made out a bonafide grounds for issuing possession delivery warrant of suit schedule properties as prayed in the IA No.ll.
6. It is also observed that, the DHr apprehends that the JDr is illegally trying to alienate the suit properties and if during the pendency of the Execution Petition, the suit properties are alienated, it will defeat the valuable right of the DHr in the suit properties and she will be put to irreparable loss and injury. However, in order to protect the right of the DHR, Temporary Injunction is necessary to be issued or otherwise, it will cause hardship to the DHr.
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7. Taking note of the reasoning given by the Trial Court as well as the judgment passed in RSA and also the order passed by the Hon'ble Apex Court, came to the conclusion that the Dhr has prima facie made out a case for grant of Temporary Injunction. The Trial Court also having considered the material on record, i.e., the confirmation of the order passed by the Trial Court in the second appeal and in the Special Leave Petition and also taking note of dismissal of the same, it has also came to the conclusion that the dispute between the DHr and JDr is reached its finality with regard to contentions is concerned. When the order has reached its finality, the question of invoking Section 47 of the CPC all questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree can be determined by the executing court. In the present case the JDr has challenged the execution of the judgment and decree, which is confirmed by the Hon'ble Apex Court and which is remained
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 unchallenged. The executing court cannot go beyond the decree until and unless the decree is nullity. In this case JDr has not taken any grounds stating that the judgment and decree of O.S.No.69/2006 and R.S.A.No.5446/2012 are nullity. Hence JDr has no locus standi to file the present IAs No.III and IV and object the Execution Petition invoking Section 47 and 151 of CPC. Hence, question of conducting detailed enquiry under Section 47 of the CPC does not arise at all. The decree had become final between parties as no appeal was filed, as such, the IAs of JDr are not maintainable and no investigation can be done in the Execution Petition and the same is beyond the judgment and decree passed by the Trial Court, which is confirmed in RSA and hence dismissed the applications.
8. The learned Senior Counsel appearing on behalf of the counsel on record in his argument would vehemently contend that;
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 8.1. The order impugned is erroneous. The learned Senior Counsel mainly contend that, the Trial Court fails to consider the material on record and particularly, the counsel brought to the notice of this Court the prayer sought in the Execution Petition and particularly Execution Petition is filed with regard to causing of obstruction and seeking of the relief of the petitioner to keep him in the civil prison contending that the petitioner has violated the judgment and decree and causing obstructions to the possession of the respondent. 8.2. In support of his contention, the counsel contended that the respondent/DHr had obtained decree by making false representation and suit is failed for the relief of declaration and Temporary Injunction and no possession is sought. But in the Execution Petition, an application is filed for seeking possession of the properties. Once the decree is obtained and
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 the respondent is in possession, no occasion for him to seek for the relief of possession by filing the application particularly, I.A.No.II. 8.3. The counsel also in his argument would vehemently contend that, the Trial Court committed an error in allowing both I.A.Nos.I and II and ought not to have allowed those two applications.
8.4. The counsel also vehemently contend that, when the specific ground has been urged in the objection statement, the relief sought ought not to have been granted by the Trial Court and committed an error in allowing those two applications and rejecting the application filed by the respondent to dismiss the Execution Petition.
8.5. The counsel also vehemently contends that the order impugned is erroneous. It is contended that, Order 39 Rules 1 and 2 of CPC provides that, in a suit it is proved by affidavit or
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 otherwise the Court may by order for grant of injunction restrain the said act. It is also contended that, the Executing Court has no jurisdiction to entertain the application filed under Order 39 Rules 1 and 2 CPC. The counsel also would contend that, when the application filed under Order 21 Rule 35 read with Section 151 CPC, it clearly shows that the petitioner is in possession and enjoyment of the suit schedule property. But in the execution petition the respondent is seeking relief that the petitioner is causing obstructions to the respondent for violating injunction order and to also seeking to arrest the petitioner and keep in civil prison. It is also contended that respondent in the counter claim filed by the petitioner in O.S.No.69/2006 contended that she is in possession of the property and an issue also raised in the said proceedings i.e., issue No.5 and the said issue is answered in
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 affirmative and if the respondent is in possession as claimed in the Original Suit then there is no occasion for the respondent/DHr to file the I.A.No.II seeking possession warrant and same will render the whole decree as non- est in law.
8.6. It is also contended that, respondent has not pleaded in her affidavit of I.A No.II regarding their dispossession, which runs contrary to her pleadings in the Original Suit. The Trial Court ought not to have granted such relief by allowing I.A.No.II and I.A.Nos.I and II filed by the DHr is self-exclusive to and contrary to one another and relief is sought invoking Order 39 Rules 1 and 2 and also sought for possession as per I.A.No.II. The Court has to take note of the conduct of the DHr and she is making misrepresentation before the Court to get the order on I.A.No.II. Hence the order impugned is liable to be set aside.
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9. Per contra, learned counsel appearing for the respondent by filing the statement of objections contend that, no dispute with regard to the fact that the decree was granted and an appeal was allowed reversing the judgment of the Trial Court and as against the said order RSA was filed and in RSA this Court set aside the order of the First Appellate Court and confirmed the order of the Trial Court and the same was challenged in SLP before the Hon'ble Apex Court and the Hon'ble Apex Court also dismissed the SLP filed by the petitioner herein. The counsel would vehemently contend that, the Executing Court in E.P.No.68/2023, finding the prima facie threat of the petitioner/JDr by order dated 23.08.2023 restrained the petitioner/JDr from alienating the suit properties in any manner pending disposal of that Execution Petition. Copy of the order of Temporary Injunction dated 23.08.2023 is produced as Annexure-R1.
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10. The counsel also in the statement of objections contended that, the main contention of the petitioner that the relief cannot be granted. The Executing Court exercising inherent powers entertained the application and restrained the petitioner. The petitioner has suppressed this fact in the above petition and hence the petition is liable to be dismissed with costs on this ground alone. Web copy of the order passed in W.P.No.102513/2024 is produced as Annexure-R2.
11. The counsel also vehemently contend that, when the applications are filed under Order 39 Rules 1 and 2 and the same was allowed, it is appealable order and the same cannot be quashed in the writ petition. However, if the petitioner accedes that the order is passed exercising the jurisdiction under Section 151 of CPC, then the petition is liable to be dismissed since this Court in E.P.No.102513/2024 is pleased to hold that the order on I.A.No.1 has been passed by
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 the learned Executing Court exercising inherent jurisdiction. It is also trite law position of law as reiterated by the Hon'ble Apex Court in the case of Manoharlal Chopra Vs. Rai Bahaddur Rao Raja Saith Hiralal reported in AIR 1962 SC 527. The counsel also brought to notice of this Court paragraph No.18 of the said judgment and so also paragraph No.19 and 20 of the said judgment. The counsel also contend that Order 39 Rule 2 is very clear even not only with regard to the initiation of the suit even after the judgment also brought to notice the word used after judgment. The counsel also vehemently contend that, the Trial Court has not committed any error and also brought to notice of the averments made in the affidavits which have been sworn to by the respondent DHr while seeking the relief of I.A.Nos.I and II and taking note that the threat was caused and obstruction was caused to the possession of the petitioner, the Trial Court passed the order. The counsel also would submit that, during the
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 pendency of the matter, the petitioner had got change the revenue records in the name of the petitioner and Trial Court taken note of the said fact while passing the order, that too considering the prayer sought in the Execution Petition.
12. In reply to the arguments of the respondent's counsel, the petitioner's counsel would vehemently contend that the Trial Court ought not to have allowed I.A.No.II when the decree is already granted in favour of the defendant in coming to the conclusion that the plaintiff i.e. the petitioner herein is restrained from obstructing possession and if the respondent is not in possession only to seek for possession and not based on the decree of the Court, and also nothing is stated that the respondent has been dispossessed stating that the revenue records are changed in the name of the petitioner and silent about the dispossession and hence cannot seek the said relief.
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13. In reply to the arguments of the petitioner's counsel also, the counsel appearing for the respondent would contend that the powers are exercised under inherent jurisdiction while granting the relief and hence it does not require any interference.
14. Having heard the petitioner's counsel and also the counsel appearing for the respondents, the questions arise for consideration of this Court are, whether the Trial Court has committed error in allowing the I.A.Nos.I and II and whether the Trial Court committed error in rejecting the applications filed by the petitioner herein in not dismissing the Execution Petition?
15. Having heard the respective counsel and also on perusal of the material on record, there is no dispute with regard to the fact that the suit filed by the petitioner herein was dismissed and it is also not in dispute with regard to the granting of relief in favour of respondent/Dhr in O.S.No.69/2006. There is no
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 dispute with regard to the fact that the First Appellate Court in R.A.No.364/2011 reversed the finding of the Trial Court and dismissed the claim of the respondent herein. The same been challenged in RSA No.5446/2012 and this Court allowed the RSA and set aside the order of the First Appellate Court passed in RA No.364/2011. It is also not in dispute that the Hon'ble Apex Court dismissed the SLP filed by petitioner. It is clear that the dispute has attained finality of the judgment and decree of the Trial Court passed in favour of the respondent is continued. It is also not in dispute that the Execution Petition is filed before the Trial Court seeking the relief of restraining the JDr from causing obstruction to the Dhr by violating injunction order passed by the Trial Court in O.S.No.69/2006, which is confirmed by this Court in RSA No.5446/2012. It is also to be noted that the prayer is sought to put the petitioner in civil prison and also by attaching her properties for violating injunction order of the Trial
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 Court and also the JDr has not complied the order of the Court PSI, Yamakanamaradi may please be directed to assist the Dhr for removing obstruction of the petitioner JDr and any other relief.
16. Having considered the relief sought, it is very clear that the question is with regard to the violation of injunction order of the Trial Court. The second prayer is also with regard to the JDr is not complying the order of the Court and sought for PSI Yamakanamaradi to assist the Dhr for removing the obstruction of the JDr. In view of the judgment and decree is passed for declaration and permanent injunction, the same is also granted in favour of the defendant, who is the Dhr in the Execution Petition. The suit of the plaintiff/petitioner herein is dismissed. It is also not in dispute that the petitioner is unsuccessful throughout from the Trial Court to the highest Court of the country. It is also to be noted that the relief is sought for by filing I.A.I under Order
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 39 Rules 1 and 2 of CPC and the main contention is also that during the pendency of the matter, got transferred the revenue records in favor of the petitioner herein. It is also not in dispute with regard to the fact that the petitioner got transferred the property in her favor during the pendency of the matter and petitioner's counsel also not disputes the said fact. The observation made by the Trial Court is also with regard to granting of temporary injunction in Executing Court and with regard to the jurisdiction by entertaining the Trial Court under Order 39 Rules 1 and 2. This Court already considered the same in the earlier writ petition and the Court can pass order exercising inherent powers. The counsel referring to the judgment of the Hon'ble Apex Court for procedure in exercising the inherent powers also brought to the notice of this Court, no doubt when the application is filed under Order 39 Rules 1 and 2 of CPC, an appeal lies under Order 43 and here is
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 exercising of inherent jurisdiction under Section 151 of CPC also not being disputed by the respondent.
17. When an attempt is made based on the revenue records for transferring of the property and hence restrained by the passing such an order by the Trial Court by exercising the power under Order 39 Rules 1 and 2 read with Section 151 of CPC.
18. Now the question before this Court is with regard to the prayer sought for granting of possession by issuing the delivery warrant. The counsel for the respondent brought to the notice of this Court an affidavit filed in support of the application I.A.No.II, particularly in the paragraph No.4, wherein also specifically pleaded that the present Execution Petition is also filed for possession and the petitioner is causing obstructions to the possession of the respondent and even causing obstructions to the agricultural activities and hence it is necessary to issue the possession warrant. No doubt in terms of
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 the judgment and decree passed in O.S.No.69/2006, there is no any decree for delivery of possession. The main contention of the JDr is that causing obstruction and interfering with the possession and Execution Petition is also filed for removal of the said obstruction and even in prayer No.3 also sought against the petitioner that the petitioner is not complying the order of this Court and sought direction to the concerned police be directed to assist decree holder for removing the obstruction of DHr. When such prayer is sought and the same is also taken note of by the Trial Court while passing an order. The Trial Court also considered the averments made in the application and affidavit and also the petitioner was unsuccessful before the Trial Court when the suit was filed by the petitioner herself in O.S.No.69/2006, and did not succeed throughout from the Trial Court to the Apex Court. The material clearly discloses causing obstruction and interfering with the possession and a specific prayer is also
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 sought in the Execution Petition for clearing causing of obstructions to the possession and application is filed. When such material is also considered by the Trial Court and prayer is also seeking the assistance of the police to direct for clearing of the possession. The Trial Court taken note of the said fact into consideration and even in spite of unsuccessful from the Trial Court to the Apex Court causing obstruction and hence the said prayer is also sought and the same has been considered by the Trial Court. It is also to be noted that, when the Court comes to the conclusion throughout from Trial Court to the Apex Court that the petitioner is causing obstruction and judgment and decree of the Trial Court also while passing the same in favor of the decree holder in O.S.No.69/2006 declared the defendant as legally wedded wife of deceased Lagamana Apanna Hammannavar and the plaintiff also restrained by an order of injunction that she should not cause any interference or obstruction in the peaceful possession
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 and enjoyment of the suit schedule properties by the defendant and even in spite of that decree was passed by the Trial Court and the same has been confirmed by this Court in the second appeal as well as by the Apex Court causing obstruction and assistance of the police also sought for removal of obstruction. Hence the said fact is also taken note of by the Trial Court and particularly referring the judgment of the Apex Court with regard to the moulding of the relief by the Executing Court, the judgment reported in (2023) 7 SCC 307 in the case of Sanwarlal Agrawal v. Ashok Kumar Kothari. I do not find any error committed by the Trial Court in allowing I.A.No.II also.
19. The very contention of the counsel appearing for the petitioner that I.A.Nos.III and IV ought not to have been rejected and though separate two I.As. are filed, the prayer is one and the same to reject the Execution Petition. In I.A.No.IV Section 47 of the
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NC: 2024:KHC-D:13602 WP No. 105456 of 2024 CPC is also invoked and when the petitioner is a party to the proceedings throughout from Trial Court to the Apex Court and right has already been urged throughout the Trial Court to the Apex Court and the same has not been considered by the respective Courts, the question of invoking and making any investigation with regard to the right of the petitioner also does not arise invoking Section 47 of the CPC. The Trial Court also discussed in detail with regard to invoking of Section 47 and when all the Courts have considered with regard to the rights of the petitioner, the question of determining any right invoking Sections 47 and 151 of CPC does not arise and the Court also cannot go beyond the decree. The Trial Court also taking note of the said fact into consideration, when the order of the Trial Court has attained finality by the highest Court of the country and question of determination of right of the petitioner invoking Section 47 also does not arise.
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20. Hence I do not find any ground to entertain the writ petition to reverse the findings of the Trial Court and it is also very clear that the parties are fighting for their respective rights from 2006 and almost two decades has been elapsed for seeking the appropriate relief before the court and the court has to take note of the said fact into consideration while considering the matter on merits. Hence there is no any merit in the writ petition to reverse the finding of the Trial Court.
21. In view of the discussions made above, the writ petition is dismissed.
Sd/-
(H.P.SANDESH) JUDGE gab CT-MCK List No.: 1 Sl No.: 38