IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 23"? DAY OF SEPTEMBER, 2010 BEFORE THE HON'BLE MR. JUSTICE A.N. VENUGOPALA WRIT PETITION NOS.4777--4779/2010 H BETWEEN: Smt. Puttabasamma W/o.veerabhadrappa Aged about 43 years R/at Chikkahosur Village Harnahalii Hobli Periyapatna Taluk .. _ --_ ; Mysore District -- 571 107.. V " Represented' by her A Generai' A'Po-vvyer of ?1}%.'tto'rn,e\; HoFd'er" Sn' B.B.Basava.ih...V_ ' S/o.Ba"3_avaia'h_ A Aged about 62 years . Giruguru V"i~!..|age '_ A Harg1a"haE|i Hobli Pe._rjyap.atn..a Ta|uk~-- ----- V' Mysore' Lgisétrigzt -- 571 107 ._ PETITIONER (B:(__Sri'A.,_Lo.u'rdu Mariyappa, Adv.) Ai\|D:" Ananda :3/o}DLingegowda Aged about 63 years R/at Chikkahosur Village Harnahalli Hobli Periyapatna Taluk Mysore District -~ 571 107. :RESPOI_\3_DE|\iT (By Smt. Nirmala, Adv. for IVE/s.My|araiah Associa-tes.)f"p:4._:"._ These writ petitions are fiied under 4_ 227 of the Constitution of India, praying-.?0__"'caii--.Vfo.r the, " records in Exec.No.54/2007 onv.th'e-file5_of_pHioI.ri'b'|e--.iCiW Judge (Jr. Divn) Periyapatna, Mysore.c[§ist_rict;'-quash the impugned order sheet dated '05.1_2".2009_V% pas.sed'«._on. E.A.No.6 to 8 filed by.*,_the "'pe'titioner-therein Exec.No.S4/2007 at Annexure.,..,"~"B. These petitions comings-on."for"p_re|imiiina-ryhearing in 'B' group this day, the..Court-'_madVe*'t_ihe_ following: 0 00 Respon_der}t»i'.i_nst:i'tuted'x 0j.'S.jvNVo';1--6i/1996 against the petitioner for't'ii:e.._:re.|i_ef.»_ofv--.permanent injunction in respect of the Asu.i_tiisched'£i.iAe.--'property. The suit was decreed. Depcteesi.ho|de'.'A.._V_fiIedViexecution petition and prayed for attVach_Vn:.AentA'a._nd sale of movable & immovable properties of 3'_u'dgpm"e.nu'L_~v_..V__de:;b"tor and arrest & detention of judgment de"b'torv--..'in 'c"ivi| prison. LA No.1 was filed to extend police "he|__p for due implementation of the decree put in 7e>'<'e'cution. Said appiication was allowed on 01.04.2009. 0' " "The petitioner, represented by the special power of I/. r attorney holder Sri Basavaiah, filed I.As No. 6, 7 & 8. I.A No.6 was for directing the decree holder to put the judgment debtor in possession of the landsgV.i'iie'g.aliy encroached, pursuant to the order dated 01_.;U4.'2.G-i)_97%_ the executing court. LA No.7 was for app~o--i.nth1_e'nt of the». Assistant Director of Agriculturefito crop caused by the dec_r'ee__ hold.e_r'. appiication to appoint the'V'Vi4i'E:.).Vepi,iVty of Land Records--cum--Technicail._._"':'- Deputy Commissioner, to inyegstigatteiithéeugfence&'i':Vi'E.le'gaily put by the decree holder the "po'Eice i.e., to find out whether beionging to the Judgment debtor iiénvfiuryeyi 26/2, 26/3 of Giraguru Viiiafge e-and the reports. In the affidavit in su.piportVA.of_i't--he said application, it was stated that, the decree"h'o_vlde~r"'b.y causing notice to the wrong address got the" ju'dgm'ent debtor exparte, obtained poiice help pursuant to the order passed on I.A No.3. on 01.04.2009 'Vand"i§taking the police heip, the decree holder aiong with V' "henchman rushed to the spot, which though protested, got K" 4: 4 surveyed the land with the heip of a surveyor by name Srinivasa and with the support of the police, destroyed the barbed wire fence, which existed around the ianvdpfvgthe judgment debtor with the help of }CB and fencing in a haphazard manner covering more, .acres, of land beionging to the judgrnents,dfebtor,_'a--n'd*».inthe process, the standing crops-,_worth,V_a'bout,»Fi-sV.A4,_VdO,t)O'O;'--:'s. were destroyed on account of further aiieged that, decree loss and damages to the._judgm,ent_ 'if/mfibbjections filed, the averments in the affidavit in support of" ,a'p»_p:|'ivc.ations were denied and it was contencie'd,:_'_'that," »«a:p'pV'|4i4cations are not tenable. The execution co'ur.t:: upon hearing the applications and .A co.n:sid_ering:the written arguments has passed the orders appiications. Aggrieved, the judgment deb'tor"----has fiied these writ petitions. Learned counsei appearing for the petitioner Zwouiid contend that, I.A.No.6 to 8 have not been /7. considered in the correct perspective and the impugned order is irrational and iilegai. Learned counsel contended that, there is non~appiication of mind to theVV.rei_e'vant aspects and the order is not a considered a_n'd"«r.eesio7n_ed.e order. 3. On the other hand, ie:arne-d,afidvoca.te-appearing for the respondent would submit th"at_,"'I.As g8v_.an_ji;1
objections filed thereto hiia’-we _VVbeen~,_VV:c’dnsi’dered in
accordance with iaw—-._._a;nd 7_V_th€;7§ infirmity in the
impugned order, in vie.w..,of».whi,c.h no ivntderference is calied
for. !,’.Vea’Vrn’edf’.cou’:i?is’e3:”‘r’nV,ade s_’uVb’missions in support of the
findings. and theAjco_nc.i_u’s.i.o..r1 arrived at in the impugned
order,
zAt the~”ti’me the writ petition was fiied, the
produced, which contained the operative
p’o_rtdionv_r’eoi’atii:ng to the consideration and disposai of the
I.As”€iA’:.to 8. Along with Misc.W No.6833/2010, the
petitioner has produced the fuil text of the common order
passed on LA Nos.6, 7 & 8. E
.. /..
V n
5. Indisputedly, LA No.1 filed by the decree
holder was allowed and the Station House Officer. of
Esylakuppe Police Station was directed to extend-tlheupoiicei
help to the decree holder for due impi_e’_rifeVnta:tioril’
permanent injunction decree passedgin
The decree is in respect of;landsé’buearing Svijrueyz
and 22/2. The allegations maVd’e._V’gby_theV”j.u.d”gl<nent§debtor is
in respect of lands Nostzflé/1, 26/1,
26/2, 26/3 of Cgfigiragurufl gxjecution court has
observed I.As are not the
subject a'ijd"decree, which is being
executed -_a'ndV'hehc:ei hasiiheld that, the allegations made in
the appli'ca_tlons" and relief sought against judgment
de,b.tor,tr.beingwbeyonicl the purview and scope of the
pe.titio_n,wAiha$"*di_smissed the application.
6.. .”i:€–.j»”ii:hether in the guise of implementation of the
judgment and decree in respect of the suit property, there
V”–i_AAwas’A”g_’any damage caused to the adjoining properties of
judgment debtor as alleged in the applkcbations, have not
7
been considered. The impugned order does not indicate
the court having considered the record, which came into
existence after the order on I.A.No.1 was passed. 6
to 8 have not been considered with referen.c’fe:V:to4ffthe
proceedings that took place after passing of7o:rde_r.:
No.1 in the execution petition. Thie”appi’i«catio.ris’«ouvghit
have been considered with refereri»ce”to the:v_r¢ecor::j
execution petition after Passingjof the ordieron tiiiw
I.As 6 to 8 were filed,'”w_hich_.~iw’ouV£.d hvaye eniabiedhthe court
to find out whether there.’Ais’avri1y’Vtr:.i_ti*i.x.’i’n’ii_the ailegation of
encroachment’a«nLd– to the adjoining
properties debtor (other than the decreed
propertsi/’}~».’_’ Since :8 have not been considered in
the._§i’i’ght of t’ii-e_VVo’bse:i’vations made supra and hence the
orders have to be held as irrational.
._ I’i1:”‘t~h.er;es’uit, the writ petitions stand ailowed and the
imp”:igiviVe.d’orders stand quashed. K
or
The execution court is directed to reconsider I.As 6
to 8 in the light of the observations made supra and in
accordance with iaw.
In the circumstances of the case, the;p–a’rtie__sEgret
directed to bear their respective costs.
Ks}/–