IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29th DAY OF JULY , 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT BETWEEN:
SMT.JANAKI, W.P.NO.25956 OF 2018 (GM-CPC) & W.P.NOS.27481-482 OF 2018 & W.P.NO.27568 OF 2018 W/O SUSAINATH (THAMBI), AGED ABOUT 45 YEARS, RESIDING AT MEKOOR, HOSAKERI VILLAGE, POLLIBETTA POST, VIRAJPET TALUK, KODAGU DISTRICT - 571215.
(BY SRI.SACHIN B.S, ADVOCATE) AND:
1. SMT.JAYA, W/O SHESHAPPA, AGED 61 YEARS, RESIDING AT POLLIBETTA POST, VIRAJPET TALUK, KODAGU DISTRICT - 571218.
2. SMT.KEMPAMMA, W/O CHENNAIAH, AGED ABOUT 58 YEARS, RESIDING AT KALAMMA COLONY, KUSHALANAGAR, SOMWARPET TALUK, KODAGU DISTRICT - 571218.
3. SMT.LAKSHMI, W/O M.R. BABU, AGED ABOUT 50 YEARS, RESIDING AT MULLUSOGE VILLAGE, KUSHALANAGAR, SOMWARPET TALUK, KODAGU DISTRICT – 571218.
... PETITIONER 4. THAMBI (SUSAINATH), S/O SOLEMAN, MAJOR, 5. SMT.DARMANI, W/O SOLEMAN, MAJOR, 6. LINGARAJU, S/O NARASA, MAJOR, 7. SMT.PARAVATHY, W/O LINGARAJU, MAJOR, ALL ARE RESIDING AT MEKOOR, HOSAKERI VILLAGE, POLLIBETTA, SOUTH KODAGU DISTRICT - 571215.
... RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 3.6.2017 PASSED ON IA NO.4 ORDERS DTD:7.8.2017 ON IA NO.2 AND 3 AND ORDER DTD:7.6.2018 IN EXECUTION PETITION NO.10/2017 ON THE FILE OF CIVIL JUDGE AND JMFC COURT AT VIRAJPET AS PER ANNEXURE-A AND B AND CONSEQUENTLY ALLOW IA NO.4 AND 2 AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner being the judgment debtor in Execution No.10/2007 is invoking the writ jurisdiction of this Court for assailing the order dated 07.06.2018, whereby her application in I.A.No.4 for appointment of Court Commissioner for conducting survey and demarcation of the subject properties has been rejected as per Annexure- A; she has also called in question the other order dated 03.06.2017 and the order dated 07.08.2017, whereby the Executing Court having refused to recall the delivery warrant has directed police protection for execution of the decree.
2. Learned counsel for the petitioner assails these orders arguing that the Executing Court ought to have appointed a Surveyor as the Court Commissioner since the measurement and demarcation of the subject properties is a step-in-aid of execution; till that is done the delivery warrant would not have been issued and therefore her application for recalling the same should have been favoured; when there is other modes of executing the decree, the police protection could not have been directed at all. Thus he seeks indulgence of this Court.
3. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court declines to interfere in the matter for the following reasons:
(i) the suit of the respondents in O.S.No.85/2002 has been decreed for possession on 30.11.2006, a copy whereof is at Annexure-C; going by the pleadings of the parties only three issues were framed and none related to identity of the property since there was no dispute as to the identity; therefore asking the Executing Court to appoint a Court Commissioner for ascertaining the suit property amounts to asking it to go behind the decree, which is impermissible subject to all just exceptions into which the case of the petitioner does not fit;
(ii) the Executing Court in E.P.No.10/2007 filed on 05.04.2007 has directed issuance of delivery warrant which was objected to when being executed by the Court Mahazar; subsequently the petitioner has filed the application seeking recall of the delivery warrant with one or the other excuse which the Executing Court was not impressed by; thus the said application came to be rejected by the impugned order, which cannot be faltered;
(iii) it is now a settled position of law that the Executing Court can call the State machinery for the implementation of the decree obtained in a full fledged trial of the suit, when the judgment debtor is recalcitrant; the Court Mahazar in his report dated 15.12.2012 has specifically stated about the unjustifiable obstruction from the side of the decree holder; therefore the order calling the police intervention cannot be faltered; and, (iv) the Judicial Committee of Privy Council speaking through the RIGHT HON. SIR JAMES COLVILE, about a century & a half ago i.e., in the year 1872 had observed in the case of THE GENERAL MANAGER OF THE RAJ DURBHANGA VS. MAHARAJAH COOMAR RAMAPUT SINGH IN MOORE’S INDIAN APPEALS (1871-72), VOL.14, PAGE 605 = 17 W.R.459; 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 petitions being devoid of merits, stand rejected.
Sd/- JUDGE Snb/