Karnataka High Court
Mrs Manorama vs Mrs Nagamma on 26 June, 2012
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 26TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT PETITION NO.31612 OF 2010(GM-CPC)
AND
WRIT PETITION NO.8064 OF 2011(GM-CPC)
BETWEEN :
MRS MANORAMA
AGED ABOUT 63 YEARS,
PRESENTLY RESIDING CARE OF K.R.MUNISWAMY
NO.7, IVTH CROSS,
GUPTA LAYOUT, ULSOOR,
BANGALORE - 560 008. ...PETITIONER
(BY SRI ARJUN REGO, ADVOCATE FOR M/S. REGO & REGO,
ADVOCATES)
AND :
1 MRS NAGAMMA
W/O LATE N MUNISWAMAPPA
ADULT
PRESENTLY RESIDING AT MUDALAPALYA,
HAMLET OF NAGARBHAVI,
NAGARBHAVI POST,
2
YESHWANTHPURA,
BANGALORE SOUTH TALUK.
2 MR KRISHNAPPA
S/O LATE N MUNISWAMAPPA
ADULT,
PRESENTLY R/AT MUDALAPALYA
HAMLET OF NAGARBHAVI,
NAGARBHAVI POST,
YESHWANTHPURA,
BANGALORE SOUTH TALUK.
3 MR NARAYANAPPA
S/O LATE N MUNISWAMAPPA
ADULT, PRESENTLY R/AT MUDALAPALYA
HAMLET OF NAGARBHAVI,
NAGARBHAVI POST,
YESHWANTHPURA,
BANGALORE SOUTH TALUK.
4 MR PUTTACHANDRU
S/O LATE N MUNISWAMAPPA
ADULT,
PRESENTLY R/AT MUDALAPALYA
HAMLET OF NAGARBHAVI,
NAGARBHAVI POST,
YESHWANTHPURA,
BANGALORE SOUTH TQ.
5 MR DHANANJAYA
S/O LATE N MUNISWAMAPPA
ADULT,
PRESENTLY R/AT MUDALAPALYA
HAMLET OF NAGARBHAVI,
NAGARBHAVI POST,
YESHWANTHPURA,
BANGALORE SOUTH TQ.
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6 MR SABJAN SAHIB
FATHERS NAMEN NOT KNOW TO THE
PETITIONER
ADULT,
RESIDING IN A PORTION OF SURVEY NO.83,
NAGARBHAVI VILLAGE,
YESHWANTHPUR HOBLI,
BANGALORE SOUTH TALUK.
7 MR RAGHAVAIAH
FATHERS NAMEN NOT KNOW TO THE
PETITIONER
ADULT,
RESIDING IN A PORTION OF SURVEY NO.83,
NAGARBHAVI VILLAGE,
YESHWANTHPUR HOBLI,
BANGALORE SOUTH TALUK.
8 MR M P GUNDAPPA
S/O PUTTASWAMAIAH
ADULT
PRESENTLY R/AT MALLATHAHALLI,
YESHWANTHPUR,
BANGALORE - 560 022. ...RESPONDENTS
(BY SRI H V DEVARAJU, ADVOCATE FOR R1-5
SRI PUSHPATHI MUDEGONDU, ADVOCATE FOR M/S.SREEDHAR
ASSOCIATES, ADVOCATES FOR R8,
R6 & R7-ARE DISPENSED WITH)
****
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, 1950 PRAYING TO
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QUASH THE ORDER DATED 23.6.2008S AS PER THE ORIGINAL
OF ANNEXURE-W HERETO AND DIRECT THE ACCEPTANCE OF
THE BALIFF'S REPORT AS PER ANNEXURE-E. J, M AND P AND
THE ENTRY OF FULL SATISFCATION OF THE DECREE SOUGHT TO
BE EXECUTED IN EX.NO.1073/2007 GRANTING
SIMULTANEOUSLY TO THE PETITIONER HER COSTS, COURT
FEES.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner decree holder had originally filed O.S.No.5371/1990 against the defendants. By the Judgment & decree dated 29-5-2006 the suit was decreed and the plaintiff was declared as the absolute owner of suit schedule 'B' property. The defendants were permitted to demolish the small room measuring 8' x 10' constructed by them in the said schedule 'B' property and deliver the vacant possession of the schedule 'B' property with two 5 vacant rooms within 90 days from that date. The plaintiff was also entitled to the mesne profits from the date of filing of the suit etc. Thereafter Execution case No.1073/2007 was taken out. By the order dated 17-12-2007, delivery warrant was issued in favour of the decree holder. One objector namely Sri Gundappa, the 8 th respondent herein filed I.A.No.2 under Section 3 read with Order 21 Rule 97 & 101 of CPC permitting him to raise objections for the execution of the decree which is not binding on him and to recall the delivery warrant issued against the Judgment debtors by allowing the I.A. In support of the application it is stated that the Judgment & decree is null and void since it has not been obtained against the property in Survey Number 83/1 of Nagarabhavi village. That there is no decree passed against him. That various grounds were raised. The objections have been filed by the decree holder disputing the same. It is contended thereafter that on the 6 basis of the warrant the same was duly executed on 4-2- 2008. However when the matter was placed for acceptance of delivery warrant by the order dated 6-2-2008 the same was recalled pending further enquiry. Thereafter the decree holder has filed I.A.3 under Section 151 of CPC to set aside the order recalling the warrant dated 6-2-2008. It is contended therein that the delivery warrant was issued by the Executing Court to deliver 'B' schedule property in O.S.No.5371/1990 and the same has been executed and that he has been put into possession of the suit property on 4-2-2008. He has been in possession of the same eversince then. Hence, the order dated 6-2-2008 recalling the delivery warrant is erroneous and liable to be set aside. Although these applications were taken up for consideration together by the Executing Court, by the impugned order it was held that an enquiry is to be conducted and all the parties are at liberty to adduce their evidence including 7 production of the documents. That I.A.2 filed by the objector is kept pending till the completion of recording of evidence. The I.A.3 filed by the decree holder is also kept pending for further hearing and evidence. The said order is questioned in these Writ Petitions.
2. The petitioner contends that the order holding an enquiry is erroneous. That the records show that the delivery warrant has been executed and he has been put into possession as far as back on 4-2-2008. Having put him in possession the trial Court did not have any jurisdiction to pass the order dated 6-2-2008. Therefore the holding of enquiry and leading evidence on the said aspect does not arise for consideration at all. He further pleads that the entire case of the objector is with reference to property bearing No.83/1. The decree would clearly indicate that the schedule property is a room measuring 8' x 10' 8 constructed by the plaintiff on the western side of the plaint 'A' schedule property. That plaint 'A' schedule property is a land measuring 4 acres 4 guntas forming part and parcel of Survey Number 83. Therefore Survey Number 83 is different from property bearing No. 83/1. Hence, the entire plea of the objector has no nexus with the plaint schedule decretal property. Hence, it is to be rejected.
3. Notice to Respondents 6 & 7 have been dispensed with. Sri H.V.Devaraju, the learned counsel for respondents 1 to 5 is absent. At the request of respondent No.8 the matter was adjourned by the order dated 7-6- 2012 by a week. At his request once again it was rd adjourned to 15-6-2012. On the 3 occasion, that is on 21-6-2012 the matter was adjourned to 26-6-2012 at the respondents request. He is duty bound to make his arguments. He is not present in the Court today. That the 9 proxy counsel submits that he is not in Bangalore and hence unable to make his arguments. No submissions are forthcoming from the counsel for respondent No.8.
4. Heard the petitioner's counsel and examined the material on record.
5. The decree in O.S.5371/1990 is with reference to the schedule 'B' property declaring that the plaintiff is the absolute owner of the suit schedule 'B' property and the defendants were permitted to demolish the small room constructed by them in the schedule 'B' property and deliver vacant possession. Schedule 'B' property as can be seen from the decree consists of two rooms measuring 8 x 10 feet constructed by the plaintiff on the western side of the plaint 'A' schedule property, the small room measuring 8 x 10 feet constructed unauthrorisedly by the defendants. 10 Hence, the decree would show that two rooms have been constructed by the plaintiff and one unauthorisedly by the defendants. Plaint 'A' schedule measurement has been narrated as a portion of the land measuring 4 acres 4 guntas forming part and parcel of Survey Number 83 over the decree. The execution has been taken out and the delivery warrant has been executed and the petitioner is put into possession of the 'B' schedule property on 4-2- 2008.
6. The objector filed an application under Section 47 read with Order 21 Rule 97 and Rule 101 of CPC seeking permission to object the execution of the decree which is not binding on him and to decide his rights and to recall the delivery warrant. In support of the application he has stated that the Judgment and decree has not been obtained against the owner of the property bearing No.83/1 of 11 Nagarbhavi village, that he is the owner of Survey Number 83/1 and there is no decree against him. The entire affidavit is with reference to Survey Number 83/1. As mentioned earlier the decree obtained by the plaintiff is with reference to Survey Number 83 and not Survey Number 83/1. The entire case of the objector is with reference to Survey Number 83/1. Even if the application is to be allowed the same would be referable only to Survey Number 83/1 and not Survey Number 83. Therefore the application filed by the objector is contrary to the decree obtained. The objector cannot have any right to contest the decree obtained by the petitioner.
7. The petitioner's application was to recall the order dated 6-2-2008 wherein the delivery warrant was recalled. It is specifically stated in the affidavit in support of the application that the delivery warrant was executed and he was put into possession on 4-2-2008. Hence, the 12 question of recalling the delivery warrant, when the petitioner has been put into possession does not arise. Under these circumstances for the reasons stated he submits that the order recalling the delivery warrant may be recalled and to accept the report of the bailiff for having duly executed the warrant on 4-2-2008. Rather than considering both these applications on merits the lower Court was of the view that unless and until the evidence is recorded and the points in dispute are decided, it is not possible to dispose off the I.As. That if the evidence is recorded and the documents are got marked and then this Court can come to a correct conclusion after appreciating the oral and documentary evidence. To know whether the decretal schedule property was properly delivered or not, whether this property belongs to the objector/decree holder or not whether delivery warrant was issued or not, it is necessary to record the evidence of both the sides. 13
8. So far as the reasoning of the lower Court ordering for enquiry is concerned, I'am unable to accept any of the reasons assigned by the lower Court. The question of collecting further evidence and looking into the documents to see whether the property has been properly delivered or not will not arise for consideration, under the facts and circumstances as evidenced from the record. As held earlier the plea of the objector is with reference to Survey Number 83/1. The decree is not with reference to Survey Number 83/1 but Survey No. 83. Hence, there are no grounds for the objector to object the same. Even otherwise what is pleaded is not even the entire extent of land of Survey Number 83 but only so far as it relates to two rooms constructed by the defendant in a portion of survey Number 83. Hence, there are no grounds to entertain the Petition. Therefore the question of looking 14 into the material documents in order to ascertain the plea of the objector will fall at the threshold itself.
8. The application filed by the petitioner is to recall the order dated 6-2-2008 wherein the delivery warrant was recalled. The specific contention of the petitioner is that in terms of the order passed earlier, the bailiff has put the petitioner into possession of the property on 4-2-2008. The records would disclose the said fact. It is only for the acceptance of the said fact the matter was placed for consideration before the Court on 6-2-2008. As on that date in view of the application filed by the objector the order dated 6-2-2008 was passed recalling the delivery warrant.
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9. Having held that the objector does not have any locus-standi. I'am of the considered view that the application of the petitioner requires to be allowed. In the I.A. having specifically pleaded he was in possession and there is no material to disbelieve the same, it is a ground to allow the said application. Even otherwise the objector in his application has specifically stated that the delivery warrant has been executed. Hence on all these grounds I do not find any reason as to why the trial Court should have posted the matter for further evidence to cull out these facts. Consequently the application filed by the objector is dismissed. I.A.3 filed by the decree holder is allowed.
The order dated 23-6-2008 passed by the XV Additional City Civil & Sessions Judge, Bangalore city, (CCCH No.3), in Execution Petition No.1073/2007 is set 16 aside. I.As are allowed. The Petitions are disposed off.
Sd/-
JUDGE RSK