IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 5736 OF 2019 (GM-CPC) BETWEEN:
SRI NARAYANA S/O DIDDIGOWDA AGEDA BOUT 55 YEARS R/O GURUMARANAHALLI VILLAGE KASABA HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT-573 116 (BY SRI. PRAKASH T HEBBAR, ADVOCATE) AND:
1. SRI NAGARAJU S/O NINGAPPA, AGED ABOUT 52 YEARS, 2. SRI JAGADEESHA S/O NINGAPPA, AGED ABOUT 50 YEARS, BOTH ARE RESIDING AT GURUMARANAHALLI VILLAGE, KASABA HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573 116.
(BY SRI. M C JAYAKIRTHI, ADVOCATE) ... PETITIONER ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS ON THE FILE OF THE HON’BLE PRINCIPAL CIVIL JUDGE AND J.M.F.C., CHANNARAYAPATNA IN EX. PETN NO.76/2014 AND PERUSE THE SAME AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner being the decree holder in his declaration suit in O.S.No.466/2001 had filed Execution Case No.76/2014 seeking its enforcement; the said execution case having been dismissed by the impugned order dated 05.11.2018, a copy whereof is at Annexure-A, he has presented this writ petition.
2. After service of notice, the respondent-judgment debtors having entered appearance through their counsel resist the writ petition contending that the impugned order amounts to a decree and therefore appeal is the right remedy and not a writ petition. They also submit that the property having not been earmarked by boundaries, the execution cannot be levied.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants relief to the petitioner because:
(a) the respondent-judgment debtors in their own O.S.No.8/2003 for declaration of title and injunction in respect of the very same land having been denied relief vide judgment & decree dated 03.02.2003; and a challenge thereto in their R.A.No.250/2006 having been negatived, the finding recorded therein operate as res judicata between them and the petitioner who was the defendant in the said suit which related to the very same subject property;
(b) the above apart, suit of the petitioner for declaration and injunction in O.S.No.466/2001 has been decreed on 28.08.2013; the operative portion of the order decreeing the suit reads as under:
“ªÁ¢AiÀÄÄ zÁªÉAiÀÄ£ÀÄß ¨sÁUÀ±À: rQæ ªÀiÁqÀ¯ÁVgÀÄvÀÛzÉ.
zÁªÁ D¹ÛAiÀÄ ¥ÉÊQ 20 UÀÄAmÉ ¥ÀæzÉñÀPÉÌ ¸ÀA§AzsÀ¥ÀlÖAvÀ ªÀiÁvÀæ ªÁ¢AiÀÄÄ ºÀPÀÄÌzÁgÀgÀÄ ªÀÄvÀÄÛ ªÀiÁ°ÃPÀgÀÄ JAzÀÄ WÉÆö¹gÀÄvÀÛzÉ. zÁªÁ D¹ÛAiÀÄ ZÀPÀÄ̧A¢UÉ ¸ÀA§AzsÀ¥ÀlÖAvÀ ªÀiÁvÀæ AiÀiÁªÀÅzÉà ¥ÀjºÁgÀªÀ£ÀÄß ¤ÃrgÀĪÀÅ¢®è.
¸ÀªÉð £ÀA.11/3 gÀ 20 UÀÄAmÉ ¥ÀæzÉñÀPÉÌ ¸ÀA§AzsÀ¥ÀlÖAvÉ ¥ÀæwªÁ¢UÀ¼ÁUÀ°Ã CxÀªÁ CªÀgÀ ¥ÀgÀ AiÀiÁªÀÅzÉà ªÀåQÛUÀ¼ÁUÀ°Ã ªÁ¢AiÀÄ ¸Áé¢üãÀPÉÌ vÀAmÉ vÀPÀgÁgÀÄ ªÀiÁqÀzÀAvÉ ±Á±ÀévÀ ¤¨sÀðAzÀPÁYÉÕ ¤ÃqÀ¯ÁVgÀÄvÀÛzÉ.”
(c) the contention of the judgment debtors that the property is not identifiable is liable to be rejected because the said contention is resjudicated because of the finding in their own suit; it is a settled principle of law that the Courts while interpreting the judgments & decrees cannot keep their common sense in cold storage; a decree is granted as a usufructs of a successful litigation and not as a show piece; therefore the learned Judge of the Court below fell in a gross error in dismissing the execution petition; and, (d) the contention of the judgment debtors that the impugned order amounts to a decree and therefore an appeal is entertainable against the same, surprises the Court to say the least; the suit is of the year 2001 and it was decreed in August 2013 after a long drawn trial; judgment debtors suit in O.S.No.8/2003 having been dismissed, has attained finality way back on 30.09.2006; it is too much to ask a successful party in a suit to invoke some other jurisdiction when the errors of law and fact are militantly apparent on the face of the records; this Court is not sure whether such a contention can be taken in the fact matrix of the case, either, when the jurisdiction of this court is not in challenge.
In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned order; the Execution Case No.76/2014 consequently having been restored, the Court below shall execute the decree preferably within a period of eight weeks, if necessary with police aid, and report compliance to the Registrar General of this Court.
The judgment debtors are liable to pay a cost of Rs.20,000/- to the petitioner; however, the meekly submission of the judgment debtors, the cost is waived subject to their not opposing the execution on untenable grounds.
Both the parties are put to notice through their counsel to appear before the Executing Court on 07.12.2019.
Sd/- JUDGE Snb/