Karnataka High Court
Puttappa vs Kanaka Housing Co Operative Society ... on 19 June, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.28332 OF 2018 (GM-CPC)
Between:
1. Puttappa
S/o Channabasappa
Aged about 60 years
2. Parameshwarappa
S/o Basavarajappa
Aged about 35 years
3. Devaraj
S/o Basavarajappa
Aged about 30 years
All are residents of
Bommanakatte Village
Shivamogga Taluk 577 201
Shivamogga District
...Petitioners
(By Sri P.N. Harish, Advocate)
And:
1. Kanaka Housing Co-operative
Society Limited (Regd.)
1st Main Road, Kanakanagara
By its Secretary K.V. Lakshmikantappa
S/o late K.H. Virupakshappa
Aged about 50 years
R/o Sri Amba Nivasa
2
Yalakoppa Street
Shivamoga 577 201
2. Smt. Kariyamma
W/o Channabasappa
Aged about 89 years
3. C. Ramappa
S/o Channabasappa
Aged about 66 years
4. Manjappa
S/o Channabasappa
Aged about 62 years
Respondents 2 to 4 are
r/o Bommanakatte Village
Shivamogga Taluk 577 201
Shivamogga District
5. Ramaiah
S/o Ramappa
Aged about 66 years
R/o Hosamane Extension
Shivamogga 577 201
6. Dasappa
S/o Choudappa
Aged about 56 ears
Bommanakatte Village
Shivamogga Taluk 577 201
Shivamogga District
...Respondents
This writ petition is filed under Article 227 of the
Constitution of India praying to quash the order dated
03.11.2017 in EX.No.259 of 2013 passed by the I Additional Civil
Judge and JMFC, Shivamogga Vide Annexure-C; and etc.
3
This petition coming on for preliminary hearing, this day,
the Court made the following:
ORDER
This writ petition is filed under Article 227 of the Constitution of India challenging the order dated 03rd November, 2017 passed in Execution No.259 of 2013 by the I Additional Civil Judge and JMFC, Shivamogga. The petitioners herein are the judgment debtors No.4, 5 and 6 respectively before the Court below.
2. The relevant facts for adjudication of this writ petition are that the respondent No.1 herein is the decree holder in OS No.352 of 2007 dated 02nd April, 2012 passed by the First Additional Civil Judge and JMFC at Shivamogga. The judgment debtors have challenged the decree passed on 02nd April, 2012 in OS No.352 of 2007 in RA No.54 of 2012 on the file of the II Additional Senior Civil Judge, Shivamogga and the said Regular Appeal came to be dismissed on 30th October, 2013. The decree passed by both the Courts have reached finality since the judgment debtors have not challenged the order passed in Regular Appeal No.54 of 2012 by the First Appellate Court. 4 Thereafter, the decree holder has filed Execution No.259 of 2013 on the file of the Principal Civil Judge (Jr.Dn.) and JMFC, Shivamogga and sought to execute the order passed in OS No.352 of 2007. Since the judgment debtors have tried to obstruct the execution of the order passed by the Court below, the decree holder/respondent No.1 herein, has filed application under Section 151 of the Code of Civil Procedure and prayed for issuing direction to Vinobha Nagar Police, Shivamogga with regard to implementation of the decree of the Court. In the said application, the decree holder has stated that he has developed a layout in the suit schedule property and the judgment debtors are interfering with the possession and enjoyment of the decree holder, and accordingly, he has sought for police protection from the Court below. The said application was filed on 29th May, 2017 as per Annexure-B. However, the judgment debtors/ petitioners herein have not filed any objection to the said application. The learned trial Judge, after considering the material on record and after hearing the parties, by order dated 03rd November, 2017, allowed the application filed by the decree holder/Respondent No.1 herein under Section 151 of the Code of 5 Civil Procedure and directed the Vinobha Nagar Police, Shivamogga to give protection to the decree holder for implementing the decree passed in OS No.352 of 2007.
3. Heard the learned counsel for the petitioner and perused the entire material on record. The learned Advocate appearing for the petitioners submits that the Trial Court has not afforded reasonable opportunity to the petitioners to make objection to the said application and the impugned order is cryptic in nature and is passed without any reasons and as such, the learned counsel has sought for setting aside the impugned order.
4. I have carefully gone through the entire case papers. It is needless to say that though the execution petition is filed in the year 2013, however, the decree holder/respondent No.1 herein was not able to enjoy the fruits of the decree as such. Apart from this, the Trial Court has considered the affidavit accompanying the application made by respondent No.1 herein and after thoughtful consideration of the fact, I am of the view that the judgment debtors are not allowing the respondent No.1 6 to enjoy the suit schedule property and interfering with the possession and enjoyment of the property held by the decree holder and as such, I do not find any favourable ground to interfere with the well-reasoned order passed by the trial Court.
5. Further, this petition is filed under Article 227 of the Constitution of India. It is settled principle of law that this Court is having limited jurisdiction to interfere unless there is abuse of power as well as the order passed by the Court below would touch the conscious of the Court as such. Perusal of the impugned judgment would clearly indicate that the learned trial Judge has applied his mind while allowing the application made by the decree holder/respondent No.1 herein and as such it is not a fit case for interference under Article 227 of the Constitution of India. Hence, the writ petition is devoid of merits and liable to be rejected. Writ Petition is accordingly dismissed.
Sd/-
JUDGE lnn