IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NOS.5843 & 5919 OF 2017 & WRIT PETITION NOS.6120-6122/2017 (GM-CPC) BETWEEN:
1. SRI PARASHURAM S/O HALADAPPA AGED ABOUT 42 YEARS R/O HARNAHALLI VILLAGE SHIMOGA TALUK AND DISTRICT 2. SRI SATHISH RAO S/O DONDOJI RAO AGED ABOUT 40 YEARS R/O HARNAHALLI VILLAGE SHIMOGA TALUK AND DISTRICT 3. SRI R MANJU S/O RAMANNA AGED ABOUT 40 YEARS R/O HARNAHALLI VILLAGE SHIMOGA TALUK AND DISTRICT 4. SRI NARASIMHA S/O JATTI NAGAPPA AGED ABOUT 55 YEARS R/O HARNAHALLI VILLAGE SHIMOGA TALUK AND DISTRICT 5. SRI MANJU S/O BHEEMAPPA AGED ABOUT 40 YEARS R/O HARNAHALLI VILLAGE SHIMOGA TALUK AND DISTRICT 6. SRI RUDRASWAMY S/O T C CHANNABASAIAH AGED ABOUT 45 YEARS PANCHAYAT DEVELOPMENT OFFICER HARNAHALLI VILLAGE PANCHAYAT HARNAHALLI SHIMOGA TALUK & DISTRICT 7. SRI NAGARAJA S/O GUTHAPPA AGED ABOUT 40 YEARS BILL COLLECTOR HARNAHALLI VILLAGE PANCHAYAT HARNAHALLI SHIMOGA TALUK AND DISTRICT ... PETITIONERS (BY SRI.M.R. RAJAGOPAL, ADVOCATE) AND:
1. SRI SHEIK AHAMMED S/O PANCHAMIYA SAB AGED ABOUT 75 YEARS R/O SOWLANGA ROAD HARNAHALLI SHIMOGA TALUK AND DISTRICT 2. SRI RAJENDRA AGED ABOUT 51 YEARS POLICE CONSTABLE HOSANAGARA POLICE STATION HOSANAGARA SHIMOGA TALUK AND DISTRICT 3. SRI NANJAPPA AGED ABOUT 52 YEARS POLICE SUB INSPECTOR VINOBANAGARA POLICE STATION SHIMOGA CITY 4. SRI SIDDALINGAPPA AGED ABOUT 61 YEARS RETIRED CIRCLE INSPECTOR OF POLICE SHIMOGA-577201 ... RESPONDENTS (BY NOTICE TO R1 TO R4 IS SERVED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 26.03.2011 PASSED ON I.A.NOS.1, 2, 3 IN EX. 78/2009 AS PER ANNEXURE – H AND THE ORDER DTD: 02.01.2017 AS PER ANNEXURE – M BOTH PASSED BY THE LEARNED PRL. CIVIL JUDGE AND J.M.F.C SHIVAMOGGA IN EX.NO.78/2009 ON I.A.NO.6 & 7 AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the judgment debtors in Execution No.78/2009 have presented these writ petitions for assailing the orders dated 26.03.2011 and 02.01.2017, copies whereof are at Annexures-H & M respectively, whereby the learned Principal Civil Judge, Shivamogga has refused to recall the coercive action taken against them for violating the injunctive decree. After service of notice the respondents have chosen to remain unrepresented.
2. Having heard the learned counsel for the petitioners and having perused the petition papers, the reprieve needs to be granted to them for the following reasons:
(a) by the order dated 26.03.2011, a copy whereof is at Annexure-H, the JDR Nos.2, 4 to 7 were ordered to be arrested and detained in civil prison; the salaries of JDR Nos.1, 3, 8, 9 & 10 were ordered to be attached for a period of two months; this could not have been done casually since they have serious consequences, especially when the decree in question is stated to be appealed and an order of statusquo is stated to have been made by this Court in R.S.A.No.78/2013, which is still pending;
(b) the petitioners applications for recalling the above order could not have been rejected on the grounds stated in the impugned order when serious consequences follow the order of detention and also when petitioners have specifically stated that they do not in any way violate the injunctive decree and that they have not put up any construction in the subject property; even before this Court too, their counsel has specifically undertaken that the petitioners would not even hover near the subject property; and, (c) the justice of the case requires that petitioners applications for recalling the order dated 26.03.2011 need to be reconsidered after quashing the impugned order dated 02.01.2017 only to the extent of arrest and detention and of attachment of salaries; it is made clear that the other portion of the order dated 26.03.2011 in respect of decree holders application in I.A.No.2 for appointment of the Commissioner for supervising the construction of shed and kulume (blacksmith’s furnace) undertaken by the decree holders is left intact.
In the above circumstances, these writ petitions succeed in part; the impugned order dated 02.01.2017 at Annexure-M is set at naught; the matter is remitted back for consideration of petitioners subject applications afresh in accordance with law; all contentions of the parties are kept open.
No costs.
Sd/- JUDGE KTY