IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.1837/2019 (GM-CPC) BETWEEN:
1. PREMANANDA, S/O PEJINA GUDDE AGED ABOUT 47 YEARS, R/AT KOPPA THOTA PADU VILLAGE UDUPI TALUK AND DISTRICT-575001. (BY SRI S. N. BHAT, ADVOCATE) AND:
RAGHUNATH SHETTY, DEAD BY LRS 1. SUMANGALA R. SHETTY, W/O LATE RAGHUNATH SHETTY AGED ABOUT 61 YEARS, 2. SHIVAPRASAD SHETTY, S/O LATE RAGHUNATH SHETTY AGED ABOUT 33 YEARS, 3. PRASHANTH KUMAR SHETTY S/O LATE RAGHUNATH SHETTY AGED ABOUT 31 YEARS, RESPONDENT No.1 TO 3 ARE R/AT SHRI MAHADEVI KOPPALU THOTA ... PETITIONER KAUP, PADU VILLAGE UDUPI TALUK-575001.
... RESPONDENTS (BY SRI S. K. ACHARYA, ADVOCATE FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDERS PASSED BY THE LEARNED ADDITIONAL SENIOR CIVIL JUDGE, UDUPI DATED 02.01.2019 IN EX.NO.100/2008 (ANNEXURE-F).
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner who is judgment debtor No.7 filed the present writ petition against the Order dated 02.01.2019 made in Execution No.100/2008 on the file of the Addl. Senior Civil Judge, Udupi, dismissing the application filed by the present petitioner to post the matter for enquiry on the point of jurisdiction and further directing to issue delivery warrant in respect of the property mentioned in S.C.No.51/2002.
2. The respondents herein who are the legal representatives of the decree holder-Raghunath Shetty, who filed S.C.No.51/2002 before the Prl. Civil Judge (Sr.
Dn.) Udupi, for ejectment, and to direct the defendants to surrender vacant possession of the plaint premises to the plaintiff within the time stipulated by the Court and on their failure to do so, oust them from the plaint premises through the process of law and to direct the defendants to pay mesne profits of `900/- till 01.09.2002, etc. After contest, the suit came to be decreed in part on 13.06.2008, directing the defendants to surrender vacant possession of the plaint premises to the plaintiff within a period of three months. The defendants were directed to pay mesne profits at the rate of Rs.30/- per month from 01.06.2002 till the date of delivery of premises. The said judgment and decree passed by the Trial Court has reached finality.
3. After the death of original decree holder, the present respondents who are the legal representatives of the decree holder, filed Execution No.1000/2008. During pendency of the proceedings, the present petitioner-judgment debtor No.7 filed I.A.No.7 under Section 151 of Code of Civil Procedure for enquiry on the point of jurisdiction. The executing Court, considering the application and objections, by the impugned order dated 02.01.2019, dismissed the application and issued delivery warrant in respect of the premises mentioned in the schedule to S.C.No.51/2002. Hence the present writ petition came to be filed.
4. Sri S.N.Bhat, learned counsel for the petitioner contended that though the suit came to be decreed on 13.08.2008, there is no decree drawn mentioning the schedule. The Trial Court issued delivery warrant in respect of the property mentioned in S.C.No.51/2002 is erroneous. There must be proper direction to deliver possession of the schedule property. Therefore, impugned order cannot be sustained.
5. Sri S.K.Acharya, learned counsel for the respondents/legal representatives of the decree holder sought to justify the impugned order.
6. Having heard the learned counsel for the parties, it is undisputed fact that the suit filed by the original decree holder came to be decreed holding that the plaintiff is entitled to possession of plaint schedule property and for mesne profit. Admittedly, the decree has reached finality. Thereafter, execution came to be filed. Though schedule is not mentioned in the decree as contended by the learned counsel for the petitioner, but the decree clearly depicts as under:
(i) “That the suit of the plaintiff is decreed in part with costs.
(ii) That the defendants are directed to surrender vacant possession of the plaint premises to the plaintiff within a period of three months.
(iii) That the defendants are liable to pay mesne profits at the rate of Rs.30/- p.m. from 1.6.2002 till the date of delivery of premises.
(iv) That the defendants are also liable to pay to the plaintiff, a sum of Rs.231-00 towards the costs of the suit”.
7. As could be seen from the decree, it clearly depicts that the defendants are directed to surrender vacant possession of the plaint premises to the plaintiff within a period of three months. The certified copy of the plaint was also produced before the Executing Court. The same is not disputed. Technically speaking, learned counsel for the petitioner is right. The schedule is not mentioned in the decree. But, the fact that the suit is decreed and has reached finality is not in dispute and in decree, it is clarified as stated supra. Therefore, the defendants/judgment debtors should surrender the vacant possession of the plaint premises to the plaintiff/ decree holders, within a period of three months. In para-12 of the impugned order, the executing court has observed that the decree holders have produced certified copy of the plaint in S.C.No.51/2002 wherein the description of the plaint premises has been shown as under:
“the premises measuring approximately 2 cents bearing Sy.No.93/3 Bagaith situated in Padu village of Udupi Taluk, consisting of a residential building of thatched roof bearing D.No.3/50 of Padu village Panchayath, which is bounded as North, East, South and West: portion of the same S.D.”. However, in the Jabitha the decree holder has stated that the premises measuring approximately 3 cents bearing Sy.No.93/3 Bagaith, situated in Padu village of Udupi Taluk, with residential building of thatched roof bearing door No.3-50 of Padu village Panchayath”.
8. Admittedly, the suit came to be decreed on 13.06.2008 and execution petition filed in the same year. But the judgment debtor/present petitioner has dragged the matter for more than ten years. The Court is meant for substantial justice and should not deprive the fruits of the decree on technicality. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of technicality. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
9. In view of the above, the Order passed by the Trial Court dismissing the application filed by the judgment debtor is just and proper. The petitioner has not made out any ground to interfere with the impugned order in exercise of powers under Article 227 of the Constitution of India. Accordingly, writ petition is disposed of.
10. At this stage, Sri S.N.Bhat, learned counsel for petitioner seeks two years time to vacate the schedule premises. The same is opposed by Sri S.K.Acharya, learned counsel for the respondents and he submits that six months time may be granted.
11. Taking into consideration the peculiar facts and circumstances of the case, this Court is of the opinion that twelve months (i.e., on or before 08.03.2020) time has to be granted to the petitioner to vacate the premises and hand over the vacant possession to the respondents of the schedule property mentioned in S.C.No.51/2002, as rightly recorded by the Executing Court, without seeking further extension of time. To that effect, the petitioner shall file an affidavit before this Court within a period of one week from today including an undertaking that he shall not induct any third person including his family members in the schedule property and shall not alter the nature of the property and shall not drag the decree holder to further litigation.
Ordered accordingly.
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