IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.28607 OF 2019 (GM-CPC) BETWEEN:
SHIVANNEGOWDA S/O. THIMMEGOWDA AGED ABOUT 62 YEARS R/O. MADHUVANAHALLI EXTENSION K.R.NAGARA TOWN MYSURU DISTRICT – 571 602 ... PETITIONER (BY SRI T.N.RAGHUPATHY, ADVOCATE) AND:
M.D.MURTHY S/O. DEVEGOWDA AGED ABOUT 60 YEARS R/O. MADHUVANAHALLI VILLAGE HOSA AGRAHARA HOBLI K.R.NAGARA TALUK MYSURU DISTRICT – 571 602 ... RESPONDENT (BY SRI B.S.NAGARAJ, ADVOCATE C/R) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE ORDER DATED 14.06.2019 PASSED BY THE PRINCIPAL CIVIL JUDGE, K.R.NAGAR IN EX.NO.141/2017 PRODUCED AT ANNEXURE-D AS ILLEGAL AND QUASH THE SAME AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the judgment debtor in execution No.141/2017 is invoking the writ jurisdiction of this Court for assailing the order dated 14.06.2019 whereby the learned Judge of the executing Court has ordered his arrest and detention on the ground that the injunction is intentionally violated. After service of notice, the respondent-decree holder having entered caveat through his counsel, resists the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, a short question of law as under arises for consideration:
“Whether an injunctive decree runs with the land or runs qua the injuncted person only?”
3. Learned Counsel for the petitioner argues that, subsequent to Family Partition, the subject property having fallen to the share of his brother, and the said sharer putting up construction, petitioner cannot be punished for the alleged violation of injunction. In support of his case, he banks upon the decision of the Apex Court infra. Per contra, learned counsel for respondent- decree holder contends that the injunctive decree binds both person and the property and therefore the impugned order is unassailable.
4. The above question need not detain this court for long inasmuch as the same is no longer res integra in view of the decision of the Apex Court in the case of the PRABHAKARA ADIGA Vs. GOWRI AND OTHERS, 2017 (4) SCC 97 and wherein the Apex Court has answered that an injunctive order does not run with the land. If some other person has become the owner of the land on Family Partition, the Judgment Debtor cannot be punished, what the other person is doing on his property.
In the above circumstances, the writ petition succeeds; the impugned order is set at naught. However, the remedies of the petitioner otherwise available under law are reserved.
The reliance of the learned counsel for the respondent- decree holder on the decision of this Court does not come to his rescue in view of the declaration of law by the Apex Court which binds everyone under Article 141 of the Constitution of India.
It is needless to mention that this order shall not preclude the respondent-decree holder from enforcing the decree in accordance with law or otherwise.
Partition does not amount to transfer.
Sd/- JUDGE KTY