Karnataka High Court
Basavaraj S/O Padmannappa Kale vs The Corporation Of The City Of ... on 22 June, 2018
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
ON THE 22ND DAY OF JUNE 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT PETITION NO.206600 OF 2015 (GM-CPC)
BETWEEN:
BASAVARAJ S/O PADMANAPPA KALE
MAJOR, THROUGH HIS SPECIAL
POWER OF ATTORNEY
ANAND S/O BASAVARAJ KALE
AGED ABOUT 32 YEARS
OCC: BUSINESS
R/O: JEWARGI CROSS
KALABURAGI - 585 102
... PETITIONER
(BY SRI AMEET KUMAR DESHPANDE, ADVOCATE)
AND:
1. THE CORPORATION OF THE
CITY OF KALABURAGI PUBLIC GARDEN
KALABURAGI - 585 101
2. DR. UMESHCHANDRA S/O DEVENDRAPPA
AGE: 45 YEARS
OCC: MEDICAL PRACTITIONER
R/O: VENKATESH NAGAR
KALABURAGI - 585 101
(DEVENDRAPPA S/O RUDRAPPA
JUDGMENT DEBTOR NO.2 IS SHOWN
WHO HAVE DIED BEFORE THE
EXECUTING COURT AS MENTIONED
2
IN THE CAUSE TITLE OF THE ORDER
IMPUGNED)
... RESPONDENTS
(BY SRI KRUPA SAGAR PATIL, ADVOCATE FOR
SRI B.V. JALDE, ADVOCATE FOR R2;
NOTICE TO R1 SERVED & UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 21.09.2015 PASSED IN EXECUTION PETITION NO.
68 OF 2009 BY THE PRINCIPAL CIVIL JUDGE KALABURAGI, THE
CERTIFIED COPY OF THIS IS AT ANNEXURE-L, ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner filed a suit for mandatory injunction. The same was decreed directing the defendants to rebuild the western compound wall and lavatory towards the southern corner as it was existing before 28.07.1990. The judgment debtors had filed R.A.No.583 of 2004, which was partly allowed on 5.11.2004, wherein the judgment of the trial court was modified by directing the judgment debtor No.1 to rebuild the wall within the property of the decree holder. Aggrieved by the same, the decree holder had filed 3 RSA No.1186 of 2004. The Hon'ble Court directed to construct the compound wall at the same place where it stood on 28.07.1990, while taking into consideration the fact that the some portion of the plot No.5 has already been acquired for the purpose of construction of road subsequent to filing of the suit. Therefore, execution was taken out. By the impugned order the petition was dismissed. Hence, the present petition.
2. Learned counsel for the petitioner contends that the decree is still not executed. That the orders of the trial court had to be complied with. The executing court could not have dismissed the petition.
3. The same is disputed by the respondents.
4. The executing court took note of the fact that the commissioner has submitted his report that the decree holder has failed to produce any material to come to conclusion that the work conducted by the commissioner was incorrect and he has not complied with the memo of 4 instructions submitted by the parties. While passing the judgment in RSA No.1186 of 2004 by this court it was observed that some portions of the plot No.5 has been acquired for the purpose of construction of road subsequent to filing of the suit. Therefore, the parties were at liberty to show the extent of acquisition by producing records. The court commissioner has stated that he has measured the plots by taking into consideration the existing compound wall. The commissioner came to the conclusion that the rebuilt compound wall is in the same line with the other properties. The said report appears to be reasonable.
5. The reasons assigned by the court below are just and appropriate. I find no good ground to interfere with the same. Hence, the petition being devoid of merit is dismissed.
Sd/-
JUDGE sdu CT-RRJ