IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER 2017 BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.6113 OF 2014 (GM-CPC) BETWEEN 1. SMT MAHADEVAMMA W/O LATE SHRI NANJAPPA, AGED ABOUT 57 YEARS, RESIDING AT EDAHALLI VILLAGE, JAYAPURA HOBLI, MYSORE TALUK & DISTRICT.
2. SHRI. MAHADEVAPPA W/O LATE SHRI.NANJAPPA, AGED ABOUT 45 YEARS, RESIDING AT EDAHALLI VILLAGE, JAYAPURA HOBLI, MYSORE TALUK & DISTRICT 3. SHRI.GURUSWAMY S/O LATE SHRI.NANJAPPA, AGED ABOUT 35 YEARS, RESIDING AT EDAHALLI VILLAGE, JAYAPURA HOBLI, MYSORE TALUK & DISTRICT 4. SHRI. MANJUNATH S/O LATE SHRI.NANJAPPA, AGED ABOUT 39 YEARS, RESIDING AT EDAHALLI VILLAGE, JAYAPURA HOBLI, MYSORE TALUK & DISTRICT – 570 010.
5. SMT. PARVATHY D/O LATE SHRI.NANJAPPA, AGED ABOUT 43 YEARS, RESIDING AT EDAHALLI VILLAGE, JAYAPURA HOBLI, -570 010, MYSORE TALUK & DISTRICT ... PETITIONERS (BY SRI.G S BHAT, ADVOCATE) AND 1. SHRI MALLAPPA S/O LATE SHRI.BASAPPA, AGED ABOUT 57 YEARS, EDAHALLI VILLAGE, JAYAPURA HOBLI-570 010, MYSORE TALUK & DISTRICT.
2. SMT.GOWRAMMA D/O LATE SHRI.NANJAPPA, AGED ABOUT 39 YEARS, RESIDING AT EDAHALLI VILLAGE, JAYAPURA HOBLI-570 010, MYSORE TALUK & DISTRICT.
... RESPONDENTS (BY SRI.P SUBRAMANYA, ADVOCATE FOR R1; NOTICE TO R2 IS DISPENSED WITH VIDE ORDER DATED 25.2.2014) THIS WRIT PETITION IS FILED UNER ARTICLES 226 AND 227 OF CONSTITUION OF INDIA PRAYING TO CALL FOR THE RECORDS IN EX. PETITION NO.20/2008 FROM THE COURT OF THE II CIVIL JUDGE & JMFC AT MYSORE VIDE ANN-A, ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The Legal Representatives of the original defendant have filed the present writ petition against the order dated 07.12.2013 made in Execution No.20/2008 on the file of the II Civil Judge and JMFC, Mysore allowing the application filed by the decree holder under Order 21 Rule 32 of CPC for attachment of the immovable properties of Judgment Debtor Nos.1 to 6 and in the event of the Judgment Debtor’s not possessing any immovable property, they shall be detained in the civil prison for a period of one month from the date of their apprehension.
2. The decree holder, who is the plaintiff in O.S No.61/1998 had filed a suit for permanent injunction against the original defendant Sri. Nanjappa, father of the present petitioners in respect of suit schedule property bearing Door No. 45 in Sy. No.90/4G, measuring 0.02 guntas consisting of house property and vacant space situated at Edahalli Village, Jayapura Hobli, Rayanakere Post, Mysuru Taluk contending that he is the absolute owner in peaceful possession and enjoyment of the suit schedule property and defendant has no right to interfere with the suit schedule property.
3. The original defendant had not filed any written statement inspite of sufficient time granted.
4. After contest, the suit came to be decreed by the judgment and decree dated 09.01.2002 as prayed for and it was ordered and decreed that the suit filed by the plaintiff against defendant was decreed holding that the defendant, his agents or anybody claiming through him was permanently restrained from interfering with plaintiff’s peaceful possession and enjoyment of the suit schedule property morefully described in the schedule as under:-
Property bearing D.No.45, in Sy. No.90/4G situated at Edahalli Village, Jayapura Hobli, Mysore Taluk, Rayanakere Post, measuring 0.02 guntas consisting of house property and vacant space bounded on :-
East : Property of Chikkabasavaiah West : Govt. Wall South : Remaining portion of Sy.No.90/4 North : Road.
5. The original plaintiff/decree holder filed execution petition No.20/2008 against the original defendant alleging disobedience. During the pendency of the execution petition, the original defendant died and the said execution petition came to be closed. In view of the death of the original defendant/Judgment Debtor, decree holder filed present execution petition No.20/2008 against the present petitioners, who are Legal Representatives of the original Judgment Debtor/defendant alleging disobedience of the judgment and decree passed by the Trial Court under Order 21 Rule 11 of Code of Civil Procedure and also an application under Order 21 Rule 32.
6. The said application was resisted by the present petitioners/Judgment debtors contending that they are not aware of the decree passed in the original suit. It is also contended that they are the owners of the suit schedule property and it belongs to their father and after the death of their father, they are in peaceful possession and enjoyment of the suit schedule property.
7. The trial Court considering the application and objections, by the impugned order dated 07.12.2013 allowed the application filed by the decree holder and ordered for attachment of immovable property of Judgment Debtor Nos.1 to 6 and in the event of they not possessing any immovable property, they shall be detained in the civil prison for a period of one month from the date of their apprehension. Hence, the present writ petition is filed.
8. I have heard the learned counsel for the parties to the lis.
9. Sri. G.S. Bhat, learned counsel for the petitioners/LRs of Judgment Debtor after arguing the matter at length, fairly submits that the LRs of the defendant will not alienate, interfere with the property in respect of which the decree is passed and morefully described in the schedule stated supra. Hence, liberty may be reserved to the LRs of defendant to establish their rights before the appropriate Court either in respect of suit schedule property or in respect of land bearing Survey No.90 as alleged.
10. The said submission is placed on record.
11. Sri. P. Subramanya, learned counsel for respondent No.1/decree holder/plaintiff fairly submits that when the petitioners/Legal Representatives of original defendant/Judgment Debtors are not interfering with the suit schedule property in respect of which decree is passed, there is no necessity to detain them in civil prison unless and until they dis-obey the decree passed by the trial Court.
12. Having heard the learned Counsel for the parties, it is not in dispute that the respondent No.1 filed original suit in O.S. No.61/1998 against the original defendant Sri. Nanjappa and suit came to be decreed on 09.01.2002 in respect of suit schedule property bearing Door No. 45 in Sy. No.90/4G, measuring 0.02 guntas consisting of house property and vacant space situated at Edahalli Village, Jayapura Hobli, Rayanakere Post, Mysuru Taluk. Admittedly, the said judgment and decree has reached finality. It is also not in dispute that the execution petition filed against the original Judgment Debtor came to be closed in view of the death of the original defendant. In the subsequent execution petition No.20/2008 filed by the decree holder under Order 21 Rule 32 of Civil Procedure Code alleging disobedience, the same is denied and contended that he is the owner of the suit schedule property.
13. The trial Court after considering the entire material on record, found that the judgment debtors have disobeyed the decree passed by the trial Court. Therefore, the impugned order came to be passed by the Trial Court and the same is in accordance with law.
14. Further, Sri. G.S. Bhat, learned counsel for petitioners on instructions submits that Judgment Debtor Nos.1 to 6/present petitioners will not interfere in respect of the suit schedule property on which the decree is passed in favour of decree holder.
15. The said submission is placed on record.
16. In view of the same, the impugned order passed by the trial Court ordering attachment of the immovable property of the judgment debtors is modified subject to the condition that Judgment Debtor Nos.1 to 6/present petitioners shall not disobey the judgment and decree made in O.S. No.61/1998. If any such disobedience is made, it is always open for decree holder to take necessary action as contemplated under Order 21 Rule 32 of Code of Civil Procedure and in accordance with law. It is also open for Judgment Debtor Nos.1 to 6 to agitate and to establish their rights, if any, in respect of the suit schedule properties or other properties in accordance with law. Since the decree is only for permanent injunction.
With the above observations, writ petition is disposed of.
Sd/- JUDGE MBM