IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.61680/2016 (GM-CPC) BETWEEN:
MR. T. BANGARAPPA S/O. LATE VENKATARAMANAPPA, AGED ABOUT 76 YEARS, R/AT NO.75, GURUBHAVANA ROAD, SORABA TOWN, SHIMOGA DISTRICT, KARNATAKA STATE-577 429 ...PETITIONER (BY SRI.G.L. RAVI KUMAR, ADVOCATE) AND:
MR. KALINGA RAJU S/O. SRI. NAGAPPA, HINDU MAJOR, R/AT YELLAMMA DEVASTHANA, AGRAHARA STREET, SORABA TOWN, SORABA TALUK, SHIMOGA DISTRICT – 577 429 ...RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS AND ISSUE AN APPROPRIATE WRIT OR ORDER OR DIRECTING QUASHING THE IMPUGNED ORDER DT.21.10.2016 PASSED IN EXECUTION NO.4/2012 BY CIVIL JUDGE & JMFC, SORABA, VIDE ANNX-C.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Respondent herein had filed the suit O.S.No.472/1992 against the petitioner for declaration and possession of suit property. Said suit came to be decreed on 25.10.2010. Being aggrieved by the same an appeal came to be filed in R.A.No.69/2007, which also came to be dismissed and second appeal in RSA No.572/2010 was also dismissed. The special leave petition filed before the Hon’ble Apex Court in SLP No.21479/2013 came to be dismissed on 17.12.2013.
2. It is thereafter respondent therein filed an execution petition in Ex.No.4/2012 for issue of delivery warrant for taking possession. Pursuant to the decree passed by Court of law, it came to be executed and possession was delivered in the said execution proceedings to the respondent herein. However, on account of decree holder insisting for costs of proceedings also being paid as per decree, writ petitioner/judgment debtor continued with the said execution proceedings and during the pendency of said execution proceedings writ petitioner/judgment debtor filed an application under Order XXVI Rule 9 CPC for appointment of a Court Commissioner in order to ascertain as to whether there existed six silver oak trees in the suit property, which had been delivered to the decree holder. Said application came to be dismissed by the Executing Court on 21.10.2016 and as such present writ petition has been filed by the judgment debtor assailing the same and contending interalia that Executing Court ought to have appointed a Court Commissioner for local inspection in order to find out as to whether decree holder had in fact cut six silver oak trees standing in property in question and despite judgment debtor in his affidavit filed in support of said application stating that he had lodged a compliant with Soraba police and also jurisdictional Range Forest Officer against decree holder for having illegally removed silver oak trees and necessary action being taken against decree holder, same had been ignored by Executing Court. Hence, he has prayed for same being set aside.
3. Having perused the grounds urged in the writ petition and on perusal of case papers it would disclose that Ex.No.4/2012 came to be initiated by the respondent/decree holder, in order to enjoy the fruits of decree he had obtained in O.S.No.472/1992, which had ultimately resulted in SLP No.21479/2013 being dismissed and undisputedly possession of suit property was obtained by the decree holder in the said execution proceedings and for the purposes of recovery of costs incurred by the decree holder, execution proceedings was kept pending. In other words, execution of decree for which proceedings came to be initiated, had virtually got spent itself though for purposes of recovering cost, it was kept pending. In this factual situation an application came to be filed by the judgment debtor under Order XXVI Rule 9 CPC for local inspection namely, to ascertain as to whether six silver oak trees existed or not. This was not the subject matter of execution proceedings and as such, Executing Court has rejected the said application by assigning proper and cogent reasons.
No grounds are made out. Hence, writ petition stands dismissed.
SD/- JUDGE DR