Karnataka High Court
Sri. Thimmaiah N vs Sri. V Kumbaiah on 15 February, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2018
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION Nos.5523-5524/2017(GM-CPC)
BETWEEN:
1. SRI. THIMMAIAH N.,
EX-PRESIDENT,
MILK PRODUCERS CO-OPERATIVE SOCIETY,
R/AT KUNTABOMMANAHALLI VILLAGE,
SOMPURA HOBLI, NELAMANGALA TALUK,
BENGALURU RURAL DISTRICT-562123.
2. SRI. RAVIKUMAR C.,
SECRETARY,
MILK PRODUCERS CO-OPERATIVE SOCIETY,
R/AT KUNTABOMMANAHALLI VILLAGE,
SOMPURA HOBLI, NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562123.
... PETITIONERS
(BY SRI H. J. ANANDA, ADVOCATE)
AND:
SRI. V. KUMBAIAH,
S/O LATE VENKATAPPA,
AGED ABOUT 76 YEARS,
R/AT KUNTABOMMANAHALLI VILLAGE,
SOMPURA HOBLI, NELAMANGALA TALUK,
BENGALURU RURAL DISTRICT-562123.
... RESPONDENT
(BY SRI K.J. JAGADEESH, ADVOCATE FOR
SRI G. PAPI REDDY, ADVOCATE)
...
2
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 2.9.2016 PASSED IN EXECUTION
NO.8/2013 PASSED BY THE COURT OF THE CIVIL JUDGE AND
JMFC, NELAMANGALA VIDE AT ANNEXURE-A.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The judgment debtors 1 and 2 have filed the present writ petitions against the order dated 2nd September 2016 made in Execution Petition 8/2013 allowing the same filed by the decree holder under XXI Rule 11 r/w Section 151 of the Code of Civil Procedure made in O.S.No.143/1993 directing to give police protection.
2. The respondent filed O.S.No.143/1993 for permanent injunction in respect of Sy.No.24/1 measuring 3 acres 13 guntas situated at Kuntabommanahalli village, Sompura Hobli, Nelamangala Taluk contending that he is in possession and enjoyment of the suit schedule property. The same 3 was opposed by the respondent-defendant by filing the written statement. After contest, the trial Court by the judgment and decree dated 25.10.2003 decreed the suit and granted injunction. The said decree has reached finality.
3. In the meanwhile, the present petitioners filed a suit - O.S.No.270/2010 against the respondent for permanent injunction in respect of Kaneshmari No.58/198 measuring 30 x 40 feet situated at Sompura Hobli Nelamangala Taluk and the trial Court granted injunction. Against the said order, the respondent filed M.A.No.1/2014 wherein the Lower Appellate Court stayed the order passed by the trial Court.
4. In the meanwhile, the respondent, who is the decree holder in O.S.No.143/1993 filed Execution Petition No.8/2013 and also an application for police protection under Order XXI Rule 11 r/w Section 151 of the Code of Civil Procedure for execution of decree 4 passed in O.S.No.143/1993 with the police help. The trial Court granted police protection as prayed for. Hence the present writ petitions are filed.
5. I have heard the learned Counsel for the parties to the lis.
6. Sri H.J. Anand, learned Counsel for the petitioners-judgment debtors contended that the impugned order passed by the Executing Court providing police protection to implement the decree is erroneous and contrary to the material on record. He further contended that the trial Court ought not to have granted police protection. He further contended that the respondent in collusion with the police are interfering with the building belonging to the Kuntabommanahalli Milk Producers Co-operative Society which is not part of the decree. Therefore, he sought to quash the impugned order passed by the trial Court.
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7. Per contra, Sri K.J. Jagadeesh for Sri G. Papi Reddy, learned Counsel for the respondent-decree holder sought to justify the impugned order and contended that the police protective given by the trial Court is only in respect of decree made in O.S.No.143/1993 and the same is in accordance with law since the decree passed by the trial Court in the said suit has reached finality. Therefore, he sought for dismissal of the writ petitions.
8. Having heard the learned Counsel for the parties, it is an undisputed fact that the suit is filed by the present respondent - O.S.No.143/1993 for permanent injunction in respect of suit schedule property bearing Sy.No. 24/1 measuring 3 acres 31 guntas situated at Kuntabommanahalli village, Sompura Hobli, Nelamangala Taluk and after contest, the same came to be decreed on 25.10.2003. The said 6 decree has reached finality and the decree is binding on both parties to the suit.
9. Though the learned Counsel for the petitioners submits that the present office bearers Thimmaiah.N. and Ravi Kumar. C., were not parties to the earlier suit, the fact remains that they are not represented personally, but by the Office. Earlier one Sri Chandrashekar K.M., was the President and Sri K.V. Shivashankar was the Secretary of the very Milk Producers Co-operative Society. Therefore, the decree passed by the trial Court in O.S.No.143/1993 is binding on the office bearers of the said Co-operative Society. Therefore, the contention of the learned Counsel for the petitioners cannot be accepted. The Executing Court considering the entire material on record and evidence of P.W.1, R.W.1 and material evidence - Exs.P.1 to 3 has come to the conclusion that the decree holder has made out sufficient ground to execute judgment and 7 decree in O.S. 143/1993 with the help of police against the judgment debtors. Accordingly, granted police protection to implement the decree.
10. The material on record clearly depicts that the decree passed in O.S.No.143/1993 in respect of land bearing Sy.No.24/1 measuring 3 acres 31 guntas situated at Kuntabommanahalli village, Sompura Hobli, Nelamangala Taluk, Bangaluru has reached finality. Admittedly, the defendants/judgment debtors have not filed any appeal. The suit filed by the present petitioners in O.S.No.270/2010 has nothing to do with the decree passed in O.S.No.143/1993 since both the schedule properties are different. When there is an injunction decree passed against the defendants and has reached finality, they are bound to follow the decree. The trial Court on appreciation of the entire oral and documentary evidence on record has come to the conclusion that the decree holder has made out a 8 ground to grant police protection to implement the decree and it is not the case of the judgment debtors that they have challenged the decree. In the absence of the same, the impugned order passed by the trial Court granting police protection to implement the decree passed in O.S.No.143/1993 is just and proper. The petitioners have not made out any ground to interfere with the impugned order passed by the trial Court in exercise of power under Article 227 of the Constitution of India.
11. However, it is made clear that the jurisdictional police shall implement the decree only in respect of the suit property made in O.S.NO.143/1993 as mentioned therein and not beyond that, strictly in accordance with law.
Accordingly, writ petitions are dismissed.
Sd/-
Judge Nsu/-