IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.R. KRISHNA KUMAR C.R.P. NO.63 OF 2014 BETWEEN:
1. SRI VENKATESHAPPA S/O MUNIYAPPA AGED 51 YEARS 2. MS. VENKATAMMA W/O VENKATESHAPPA AGED 43 YEARS 3. MR. KRISHNAPPA S/O MUNIYAPPA AGED 46 YEARS 4. ESWARAMMA W/O KRISHNAPPA AGED 41 YEARS 5. MR. GIDDAPPA S/O MUNIYAPPA AGED 41 YEARS 6. MR. NARAYANASWAMY S/O DODDAHANUMANTHAPPA AGED 47 YEARS ALL ARE R/AT KODUR MANDIKAL HOBLI CHIKKABALLAPUR TALUK & DISTRICT-562101 (BY SRI S.R.SREEPRASAD, ADVOCATE) AND:
MR. RAMAKRISHNAPPA S/O DODDAVENKATARAYAPPA AGED 44 YEARS R/OF KODUR MANDIKAL HOBLI CHIKKABALLAPUR TALUK CHIKKABALLAPUR DISTRICT-562101 (BY SRI S.VISWESWARAIAH, ADV.) …PETITIONERS … RESPONDENT THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED:07.12.2013 PASSED IN EX.15/2008 ON THE FILE OF CIVIL JUDGE AND JMFC, GUDIBANDA DIRECTING THE SUIT FILED UNDER ORDER 21 RULE 11 R/W SECTION 151 OF CPC AND ETC., THIS PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This revision petition arises out of the impugned order dated 07.12.2013 passed by the Court below allowing the petition filed by the respondent under Order XXI Rule 11 of CPC thereby directing the petitioners to be detained in civil prison for disobedience of the Decree passed in O.S.No.41/2007 for a period of seven days.
2. It is not in dispute that on 12.02.2008, the Civil Judge (Jr.Dn.) & JMFC, Gudibanda decreed the suit in O.S.No.41/2007 filed by the respondent herein for permanent injunction in respect of suit schedule immovable property and for other reliefs. Under the said judgment and decree, the petitioners herein were restrained from interfering with the respondent’s possession and enjoyment of the suit schedule property. According to the respondent, despite the aforesaid judgment and decree passed in his favor, the petitioners continued to interfere with his possession and consequently, he was constrained to institute execution proceedings in Ex.No.15/2008 before the Court below under Order XXI Rule 32 of CPC. The petitioners did not contest the said execution proceedings and the executing court by the impugned order allowed the execution petition directing all the petitioners to be detained in Civil prison for a period of seven days.
3. It is submitted by the learned counsel for the petitioners that while petitioner Nos.1, 3 and 6 have already undergone the sentence imposed upon them, petitioner Nos.2, 4 and 5 have not undergone the said sentence. However, all the petitioners are before this Court challenging the impugned order passed by the executing Court.
4. The petitioners are present before this Court and have filed an affidavit of undertaking to comply with the judgment and decree passed in O.S.No.41/2007. The said affidavit of undertaking filed today is extracted hereunder:
“We, (1) Sri. Venkateshappa son of Muniyappa, Aged 45 years, (2) Ms.Venkatamma wife of Venkateshappa, aged 37 years, (3) Mr.Krishnappa son of Muniyappa aged 40 years (4) Eswaramma wife of Krishnappa, aged 35 years (5) Mr.Giddappa son of Muniyappa aged 35 years (6) Mr. Narayanaswamy son of Doddahanumanthappa aged 35 years, All residents of Kodur, Mandikal Hobli, Chikkaballapur Taluk & District, now at Bangalore, do hereby solemnly affirm and state as follows:-
1. We submit that we have challenged the orders passed in Ex.15/2008 dated 07.12.2013.
2. We submit that we are the judgment debtors and the respondent was the decree holder before the Court below. The respondent filed a suit for perpetual injunction against us in O.S.No.41/2007 on the file of the Civil Judge (Jr.Dn.) & JMFC, Gudibanda in respect of the property bearing Sy.No.168 measuring 1 acre 15 guntas of Kodur Majara Kuthanahalli Village, Mandikal Hobli, Chikkaballapur Taluk, Kolar District. The said suit came to be decreed on 12.02.2008. Alleging interference after passing of the decree, an execution petition came to be filed on 23.07.2008.
3. We have contended before this Hon’ble Court that the Court below without holding proper enquiry as contemplated under Order 21 Rule 32 and without providing sufficient opportunity to us, the execution petition came to be allowed directing the jurisdictional police to detain us in Civil Prison by order dated 07.12.2013. Pursuant to the same, the 1st, 3rd and the 6th of us have suffered the imprisonment in compliance of the orders passed by the Court Below. However, the 2nd, 4th and 5th of us undertake that we have never disobeyed the orders passed by the Court below and further undertake that will not disobey the orders passed by the Court below.
4. We are law abiding citizens. Noting the above undertaking made by us, this Hon’ble Court be pleased to pass necessary orders in terms of the above undertaking in the interest of justice.
Wherefore we pray for necessary orders as per the above undertaking in the interest of justice and equity.
We do hereby declare that what are stated above are true and correct.”
5. It is not in dispute that pursuant to the impugned order, petitioner Nos.1, 3 and 6 have served the sentence imposed upon them. Having regard to the fact that the petitioner Nos.1, 3 and 6 have already served the sentence imposed upon them, coupled with the fact that all the petitioners herein out of whom there are two women have filed an affidavit of undertaking to comply with the judgment and decree passed by the Court below, I deem it just and proper to dispose of this revision petition by closing the execution petition in the light of the undertaking as well as the fact that petitioner No.1, 3 and 6 have served out their sentence.
6. In view of the aforesaid discussion I pass the following Order:
1. The impugned order dated 07.12.2013 passed in Ex.No.15/2008 is hereby set aside and the affidavit of undertaking filed by all the petitioners is hereby placed on record.
2. The revision petition disposed of in the above terms.
Sd/- JUDGE KTY