IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION No.22694/2019 (GM-CPC) BETWEEN CHINNAPPA @ KUMARAPPA SINCE DECEASED BY HIS LR’S (1) SMT. LAKSHMAMMA AGED ABOUT 75 YEARS W/O LATE CHINNAPPA @ KUMARAPPA (2) K.C.JAYAKUMAR S/O LATE CHINNAPPA @ KUMARAPPA BHOVI AGED ABOUT 43 YEARS (3) SARASWATHI AGED 40 YEARS D/O LATE CHINNAPPA @ KUMARAPPA BHOVI (4) PRASANNA AGED 37 YEARS S/O LATE CHINNAPPA @ KUMARAPPA BHOVI ALL ARE RESIDING AT NO.9/8 1ST MAIN ROAD, BYRASANDRA 1ST BLOCK EAST JAYANAGAR BENGALURU – 560 011 ... PETITIONERS (BY SRI H.N.VENKATESH, ADVOCATE) AND AKKAYAMMA SINCE DECEASED BY HER LR SRI KODANDARAMA S/O ANNAJAYAPPA AGED ABOUT 51 YEARS RESIDING AT NO.9/5 1ST MAIN ROAD, BYRASANDRA JAYANAGAR 1ST BLOCK, EAST BENGALURU – 560 011 ... RESPONDENT (BY SRI C. MANIVANNAN, ADVOCATE FOR C/R) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR RECRODS IN EXECUTION CASE NO.25135/2017 AND ORDERS ON I.A.NO.VI DATED 27.05.2019 VIDE ANNEXURE-‘G’ ON THE FILE OF XXVIII ADDITIONAL CITY CIVIL JUDGE, MAYOHALL UNIT, (CCH-29), BENGALURU AND ETC., THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The Judgment Debtors in respondent’s Execution Petition No.25135/2017 are invoking the writ jurisdiction of this Court seeking to lay a challenge to the order dated 27.05.2019, a copy thereof is at Annexure-‘G’ whereby the learned XXVIII Additional City Civil Judge, Mayo Hall, Bengaluru, has dismissed their application in I.A.No.6 filed under Section 75 of CPC, 1908, wherein he has sought for appointment of a Court Commissioner for ascertaining the existence of decreetal property. The respondent-decree holder having entered caveat through her counsel, opposes the writ petition.
2. The learned counsel for the petitioners vehemently contends that the executability of the decree depends upon the existence and availability of the subject property; without ascertaining its existence, it is preposterous to go on with the execution process; the Executing Court ought to have appointed a Commissioner as sought for by the judgment debtors; such appointment would not have caused any prejudice to the decree holder but it would have facilitated the adjudication of the Execution Petition; this aspect of the matter having not been adverted to by the court below, there is error of great magnitude, warranting indulgence of the writ court for setting the injustice as naught.
3. The learned counsel for the respondent-decree holder contends with equal vehemence that suit in O.S.No.16646/2002 having been decreed on 31.07.2010, JDrs’ appeal in R.F.A.No.1372/2010 having been negatived by this court on 1.6.2017 and DHrs’ Execution Case No.25135/2017 for enforcement of the said decree is being dragged on with the unsustainable obstruction by them; the contention canvassed by the petitioners/JDr side being hit by res judicata, the court below has rightly rejected their claim for appointment of Court Commissioner. So contending, he seeks dismissal of the Writ Petition with costs.
4. Having heard the learned counsel for the parties and having examined the petition papers, this court is of the considered opinion that the matter does not indulgence at it’s hands for the following reasons:
a) Respondent’s suit in O.S.No.16646/2002 was decreed on 31.07.2010; the petitioners carried the matter to this court in R.F.A.No.1372/2019 which came to be dismissed on 1.6.2010. In the said judgment, paragraphs 21 to 24 are dedicated to the issue of identity of the subject property and this court has held that such an issue does not arise at all;
b) Earlier respondent’s suit was dismissed on the ground that the identity of the subject property had not been established; however, this court in respondent’s M.F.A No.1899/2003 reversed the said finding and held that the identity of the property has been established; this finding too has attained finality, there being no further challenge.
c) The findings recorded by the trial court in the suit, this court in the RFA and in the MFA operate as res judicata since they have arrived at after being “heard and decided”; the petitioners being the judgment debtors could not have filed the subject application for appointment of the Court Commissioner for conducting spot inspection and report about the existence of the subject property; making such an application is abuse of the process of the court, to say the least;
d) this case reminds me of what the Privy Council, about a century & a half ago had observed in the case of THE GENERAL MANAGER OF THE RAJ DURBHANGA VS. MAHARAJAH COOMAR RAMAPUT SINGH IN MOORE’S INDICN APPALS (1871-72), VOL.14, PAGE 605; it reads:
“These proceedings certainly illustrate what was said by Mr.Doyne, and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a Decree….”
In the above circumstances, the writ petition being devoid of merits is liable to be dismissed, and accordingly it is.
The Executing Court is directed to expedite the execution process at the earliest, if necessary with the aid of State machinery.
No costs.
Sd/- JUDGE KLV