IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.45177 OF 2017 (GM-CPC) BETWEEN:
Sri Madappa S/o Munishami Aged about 57 years R/at Shettereahalli village Kasaba Hobli Vishwanathapura Post Devanahalli Taluk Bengaluru Rural District – 562 110 ... Petitioner (By Sri Chandrashekara Swamy K B, Advocate) AND:
Smt. Narayanamma W/o Doddamuniyappa Aged about 58 years R/at Shettereahalli village Kasaba Hobli Vishwanathapura Post Devanahalli Taluk Bengaluru Rural District – 562 110 …Respondent This Writ Petition is filed under Articles 226 and 227 of The Constitution Of India praying to quash the impugned order dated 04.07.2017 vide Annexure-F, passed by the Civil Judge and JMFC, Devanahalli in Execution No.14/2011 on IA No.1 filed under Order 13 Rule 10 and Section 151 of CPC, etc.
This Writ Petition coming on for ‘preliminary hearing’ this day, the Court made the following:
ORDER The Judgment Debtor has filed the present writ petition against the order dated 04.07.2017 allowing the application-I.A.No.1 in Ex.No.14/2011 filed by the decree holder under Order XIII Rule 10 read with Section 151 of the Code of Civil Procedure.
2. The respondent, who is the plaintiff has filed O.S.No.177/1999 for permanent injunction against the present petitioner/defendant contended that, she is the owner in possession of the suit schedule property, the defendant has no manner of right, title or interest, trying to interfere with her possession, therefore she has filed the suit for the relief sought for.
3. The defendant filed the written statement, denied the plaint averments and contended that, the property belongs to the defendant and hence sought for dismissal of the suit.
4. After contest, the trial Court by a judgment and decree dated 29.11.2005 decreed the suit and granted permanent injunction. Since the petitioner / defendant has not challenged the said decree, it has reached finality.
5. Therefore, the decree holder has filed the Execution Petition No.14/2011 to implement the decree stating that, in spite of the decree granted by the trial Court on 29.11.2005, the judgment debtor has violated the decree and on 27.08.2011 at 10.00 am, judgment debtor and all his family members formed unlawful assembly, suddenly entered into the house of the decree holder, being armed with deadly weapons and threatened with dire consequences obviously with a view to terrorize the decree holder and her family members and to compel the decree holder to get out from the possession of the property. When the decree holder questioned the same with the judgment debtor and his family members threatened her with deadly weapons that unless the decree holder does not vacate the suit premises, they are going to kill the decree holder and her family members by locking the schedule house and burn her and subsequently, the judgment debtor and his persons also assaulted the decree holder and her family members. Therefore, the decree holder/plaintiff was constrained to file a complaint to the jurisdictional police and the police have advised to take necessary steps. Therefore, the decree holder/plaintiff has filed the Execution petition to implement the decree.
6. The judgment debtor/defendant has filed objections to the main execution petition and contended that, he never interfered with the possession of the decree holder/plaintiff nor he violated the order passed by the Court.
7. During the course of evidence, the decree holder filed an application under Order XIII Rule 10 read with Section 151 of the Code of Civil Procedure to call for the documents with respect to the present litigation which are produced in PCR No.266/2011 (CC No.349/2013) on the file of the Additional Civil Judge and JMFC, Devanahalli reiterating the averments made in the execution petition.
8. The said application was opposed by the judgment debtor by filing objections, contending that the decree holder can very well apply for certified copies and produce the same before the Court. Therefore, sought to reject the application.
9. The trial Court after considering the application and objections, by the impugned order dated 04.07.2017 allowed the application. Hence, the present writ petition is filed.
10. I have heard the learned counsel for the petitioner.
11. Sri Chandrashekara Swamy K.B., learned counsel for the petitioner contended that the impugned order passed by the trial Court allowing the application filed by the decree holder under Order XIII Rule 10 read with Section 151 of the Code of Civil Procedure is erroneous, contrary to the materials on record. He would further contend that the decree holder has no impediment to apply for certified copies of the documents sought to be summoned from the Court instead of that, the application is filed. The trial Court ought not to have allowed the application. He would further contend that the decree holder is dragging the judgment debtor in the execution petition as well as in PCR No.266/2011 (CC No.349/2013) on the file of the Additional Civil Judge and JMFC at Devanahalli. Hence, sought to quash the impugned order.
12. Having heard the learned counsel for the petitioner, it is not in dispute that, the present respondent who is the decree holder has filed O.S.No.177/1999 for permanent injunction restraining the petitioner/defendant from interfering with her peaceful possession and enjoyment of the schedule property, on the ground that she is the owner in possession of the said property. Same was resisted by the petitioner/defendant by filing written statement. After contest the suit came to be decreed on 29.11.2005, granted injunction as prayed for.
13. Admittedly, the defendant has not filed any appeal against the said judgment and decree passed by the trial Court, which has reached finality. Thereafter, the present Execution petition is filed on 18.11.2011 to implement the decree, mainly on the ground that, on 27.08.2011 at 10.00 am, all the judgment debtor and his family members formed unlawful assembly, entered into the house of decree holder armed with deadly weapons and threatened with dire consequences obviously with a view to terrorize the decree holder and her family members and to compel the decree holder to get out from possession of the property and threatened to kill her and her family members, unless she vacates the suit premises.
14. During the course of the Execution proceedings, the present application came to be filed by the respondent/decree holder, reiterating the averments made in the petition. Same was opposed by the petitioner/judgment debtor.
15. The trial Court considering the application and objections has recorded a finding that, “it is the duty of the Court to implement its order and decree. If the decree not executed, it becomes only a paper decree.
It is the contention of the Decree holder that, the judgment debtor violated the decree passed in O.S.No.177/1999, decree holder also filed a private complaint. Hence, if the documents are called as prayed by the decree holder, no hardship will be caused to the judgment debtor. On the other hand, if the application is not allowed, hardship caused to the decree holder and she could not able to prove her case.” Therefore, the trial Court is of the view that the application is to be allowed. Accordingly, by exercising the discretionary, the trial Court passed the impugned order.
16. Though several contentions urged by the learned counsel for the present petitioner, he is not in a position to state as to, by allowing the application under Order XIII Rule 10 read with Section 151 of the Code of Civil Procedure, how the impugned order will prejudice to the judgment debtor or hardship will be caused to the judgment debtor in allowing the application, calling for the documents as sought for.
17. Order XIII Rule 10 of the Code of Civil Procedure clearly indicates that, “the Court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any other suit or proceeding, and inspect the same”.
18. The Hon’ble Supreme Court considering the provisions of Order XIII Rule 10 of the Code of Civil Procedure, in the case of LAKSHMI AND ANOTHER VS. CHINNAMMAL @ RAYYAMMAL AND OTHERS reported in (2009)13 SCC 25 at para 13 and 14 held as under:
13. If bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the Court's duty being to find out the truth. The procedural mechanics necessary to arrive at a just decision must be encouraged. We are not unmindful of the fact that the court in the said process would not encourage any fishing enquiry. It would also not assist a party in procuring a document which he should have himself filed.
14. There cannot furthermore be any doubt that by calling for such documents, the Court shall not bring about a situation whereby a criminal proceeding would remain stayed as it is a well settled principle of law that where a Civil proceeding as also a Criminal proceeding is pending, the latter shall get primacy.
19. Admittedly, in the present case, the decree granted by the trial Court in O.S.No.177/1999 decreeing the suit on 29.11.2005 has reached finality, as no appeal is filed by the judgment debtor and mere allowing the application to call for documents with respect to the present litigation, which are produced in C.C.No.349/2013 (PCR No.266/2011) on the file of the Additional Civil Judge and JMFC, Devanahalli, no prejudice will be caused to the judgment debtor in the present Execution petition. The discretionary order passed by the trial Court exercising the powers under Order XIII Rule 10 of the Code of Civil Procedure is in accordance with law.
20. The petitioner has not made out any ground to interfere with the impugned order in exercise of supervisory Writ jurisdiction of this Court under Article 227 of the Constitution of India.
Accordingly, Writ Petition is dismissed.
SD/- JUDGE KMV*