O LATE v. RAMAIAH AGED ABOUT
Case Details
- 1 - NC: 2025:KHC:21212 W.P. No.640/2020 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.640/2020 (GM-CPC) Digitally signed by RUPA V Location: High Court of karnataka BETWEEN: 1. SMT. T.M. MUNIYAMMA W/O LATE V. RAMAIAH AGED ABOUT 75 YEARS R/A NO.49, (NEW NO.102) J CROSS, KAGGADASANAPURA C.V. RAMAN NAGAR POST BENGALURU-560093. 2. SRI. R. SURENDRABABU S/O LATE V. RAMAIAH AGED ABOUT 52 YEARS R/A NO.49, (NEW NO.102) J CROSS, KAGGADASANAPURA C V RAMAN NAGAR POST BENGALURU-560093. 3. SRI. R. ASHOK KUMAR S/O LATE V. RAMAIAH AGED ABOUT 50 YEARS R/A NO.49, (NEW NO.102) J CROSS, KAGGADASANAPURA C V RAMAN NAGAR POST BENGALURU-560093. 4. SRI. R. JAIPAL S/O LATE V. RAMAIAH AGED ABOUT 52 YEARS R/A NO.49, (NEW NO.102) J CROSS, KAGGADASANAPURA C V RAMAN NAGAR POST BENGALURU-560093. (BY SRI. C.M. NAGABUSHANA, ADV.,) …PETITIONERS - 2 - NC: 2025:KHC:21212 W.P. No.640/2020 HC-KAR AND: 1. STATE OF KARNATAKA REP. BY ITS SECRETARY M S BUILDING BENGALURU-560001.
Legal Reasoning
2. SMT. LAKSHMI THE TAHASILDAR K R PURAM BENGALURU EAST TALUK BENGALURU. 3. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE N R SQUARE, BENGALURU-560002. 4. DIRECTOR GENERAL BENGALURU METROPOLITAN TASK FORCE (BMTF) BRUHAT BENGALURU MAHANAGARA PALIKE N R SQUARE, BENGALURU-560002. 5. ASSISTANT COMMISSIONER BENGALURU NORTH DIVISION KANDAYA BHAVAN BENGALURU-01. 6. DEPUTY COMMISSIONER BENGALURU URBAN KANDAYA BHAVAN BENGALURU-01. …RESPONDENTS (BY SRI. JAYALINGAYYA MUDENOORMATH, AGA FOR R1 SMT. ASHWIN S. HALADY, ADV., FOR R3 & R4 R2, R5 & R6 ARE SERVED) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DTD.18.7.2019 ON IA NO.1 PASSED BY THE XXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT MAYOHALL BENGALURU CCH NO.20 IN EX NO.25239/2018 AT ANNEXURE-D AND THEREBY ALLOW THE APPLICATION FILED BY THE PETITIONERS IN IA NO.1 ANNEXURE-C. SET ASIDE THE IMPUGNED ORDER - 3 - NC: 2025:KHC:21212 W.P. No.640/2020 HC-KAR DTD.20.12.2019 ON I.A.NO.5 PASSED BY THE XXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT MAYOHALL BENGALURU CCH NO.20 IN EX NO.25239/2018 AT ANENXURE-F & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking following reliefs: "1. To set aside the impugned order dated 18.07.2019, on I.A.No.1, passed by the XXVI Additional City Civil & Sessions Judge at Mayohall in Ex.No.25239/2018 at Annexure-D and thereby allow the application filed by the petitioners in I.A.No.1 at Annexure-C. Bengaluru No.20 CCH 2. To set aside the impugned order dated 20.12.2019, on I.A.No.5, passed by the XXVI Additional City Civil and Sessions Judge at Mayohall in Ex.No.25239/2018 at Annexure-F. Bengaluru CCH-20 3. For any other relief/s as this Hon'ble Court deems fit to grant in the facts of circumstance of the case in the interest of justice and equity." 2. Sri.C.M.Nagabushana, learned counsel appearing for the petitioners submits that the father of the petitioners filed O.S.No.25446/2017 against the respondents for seeking relief of permanent injunction restraining the respondents from entering into the suit - 4 - NC: 2025:KHC:21212 W.P. No.640/2020 HC-KAR schedule properties and to fence the same illegally. The said suit came to be decreed. It is further submitted that the petitioner filed execution petition in Ex.No.25239/2018 to execute the judgment and decree passed in his favour. It is also contended that the petitioner has filed writ petition in WP.No.25353/2019 seeking relief to dispose of the execution petition as early as possible. It is also submitted that the petitioner filed IA.No.1 in the said execution petition seeking amendment of the prayer to direct the judgment debtors to deliver the portion of the suit schedule properties encroached and put up compound wall on the northern side of the suit schedule properties and the said application was duly considered by the execution Court and disposed of on 18.07.2019 by recording the finding that the said application can be considered after holding an enquiry regarding disobedience of the decree in the pending execution. It is also submitted that the petitioner filed a similar application after concluding the evidence in the execution proceedings - 5 - NC: 2025:KHC:21212 W.P. No.640/2020 HC-KAR and the said application came to be rejected by the execution Court vide order dated 20.12.2019 on the ground that the similar application filed earlier by the petitioner was rejected and on the ground of res judicata, the later application is not maintainable. It is contended that the execution Court has committed a grave error in dismissing the application on the ground of res judicata as the earlier application filed by the petitioner was never adjudicated on its merits and the order passed by the execution Court dated 18.07.2019 clearly indicates that the liberty was granted to consider such application after holding an enquiry. In support of his contentions, he places reliance on the decision of the Hon’ble Supreme Court in the case of Yadaiah v. State of Telangana1 and seeks to allow the petition. 3. Per contra, learned Additional Government Advocate appearing for the respondent No.1 and Sri.Ashwin S. Halady, learned counsel appearing for 1 (2023) 10 SCC 755 - 6 - NC: 2025:KHC:21212 W.P. No.640/2020 HC-KAR respondent Nos.3 and 4 supports the order of the trial Court and submits that the filing of the application for seeking re-delivery of possession is not maintainable and the petitioners are required to pay the Court fee for seeking such relief and hence, he seeks to dismiss the petition. 4. I have heard the arguments of the learned counsel for the petitioners, the learned counsel for the respondents and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced. 5. The undisputed facts between the parties are that the father of the petitioners one Sri.V.Ramaiah filed suit in O.S.No.25446/2017 for relief of permanent injunction against the respondents herein with regard to the suit schedule properties. The said suit came to be decreed vide judgment and decree dated 14.12.2017. - 7 - NC: 2025:KHC:21212 W.P. No.640/2020 HC-KAR Thereafter, the petitioner filed execution petition No.25239/2016 seeking the following reliefs: "1) Arrest the Judgment Debtor 2, 3 and detention in the civil prison for the violation of the Decree passed by this court on 14-12-2017 in OS No.25446/2017. 2) In addition to the above order, direct the jurisdictional police to enforce the Injunction required to be done by the Judgment Debtors, as per the Judgment and Decree dated; 14-12-2017 in respect of the suit Schedule properties. 3) Any other mode to be indicated during the pendency of this Execution petition." 6. In the said proceedings, the petitioner filed an application under Order 6 Rule 17 r/w Section 151 of CPC seeking for amendment of the prayer by incorporating certain facts and prayers. The prayers sought to be incorporated are as under: “1(a) Direct the judgment debtor to deliver the portion of the suit schedule properties encroached and put the compound wall on the northern side of the suit schedule properties which compound wall runs from East West 665 feet which was demolished by the judgment debtors and encroached to an extent of 60 feet on the eastern end and in the middle of schedule properties to an extent of 72 feet and at the western end to an extent of 41 feet as been encroached and have put up a fencing with a width of two feet foundation wall. The fencing erected in the suit schedule properties by the judgment debtors is illegal - 8 - NC: 2025:KHC:21212 W.P. No.640/2020 HC-KAR and unlawful and is should be demolished with the cost of the judgment debtors. 1(b) To issue police protection to execute the decree passed before this Hon'ble Court in respect of the schedule properties and to pass such other suitable orders in the interest of justice. 1(c) If the judgment debtor fails to deliver the portion of the schedule property to the decree holder this Hon'ble court issue delivery warrant executing the decree." 7. The said application was not opposed by the respondents by filing objections. The execution Court considered IA.No.1 and disposed of the same vide order dated 18.07.2019. The order of the execution Court on the said application clearly indicate that the relief can be moulded and the same can be considered after holding enquiry regarding disobedience of the decree which is alleged by the decree holder. The aforesaid order clearly indicates that there is no adjudication of the application for amendment filed by the petitioner on its merits. The executing Court has recorded the finding that the said application can be considered after enquiry in the execution proceedings. The petitioner filed another - 9 - NC: 2025:KHC:21212 W.P. No.640/2020 HC-KAR application seeking the similar relief after enquiry and the said application was numbered as IA.No.5 and the said application was considered by the executing Court and rejected solely on the ground that the similar application filed by the petitioner was rejected on 18.07.2019 and subsequent application is hit by doctrine of res judicata. It would be useful to refer to the decision of the Hon’ble Supreme Court in the case of Yadaiah referred supra : 52. By now it is a globally settled principle of common law jurisprudence that only determinations which are fundamental would result in the application of the doctrine of res judicata. [ Justice K.R. Handley, Spencer Bower, Turner and Handley : The Doctrine of Res judicata (3rd Edn., LexisNexis Butterworths, 1996), pp. 103-107.] Only those findings, without which the court cannot adjudicate a dispute and also form the vital cog in the reasoning of a definite conclusion on an issue on merits, constitute res judicata between in subsequent proceedings. However, in the process of arriving at a final conclusion, if the court makes any incidental, supplemental or non-essential observations which are not foundational to the final determination, the same would not tie down the hands of courts in future. the same set of parties [Emphasis supplied] The Hon’ble Supreme Court by referring to the law on the point has clearly held that the doctrine of - 10 - NC: 2025:KHC:21212 W.P. No.640/2020 HC-KAR res judicata is applicable only in the cases where the issue between the parties has been decided on its merits. 8. In the case on hand, the order dated 18.07.2019 clearly indicates that the adjudication of the petitioner’s application was not on merits, but in effect, the trial Court has held that such an application can be considered only after holding the enquiry in the execution with regard to the disobedience of the decree as alleged by the petitioner. In my considered view, the trial Court has committed a grave error in rejecting the application filed under Order 6 Rule 17 r/w Section 151 of CPC on the ground of res judicata without going into the merits of the case. The trial Court is required to consider the application filed by the petitioner seeking amendment of the prayer in the execution petition on its merits and in accordance with law after providing an opportunity to the parties to the proceedings. Hence, I proceed to pass the following: - 11 - NC: 2025:KHC:21212 W.P. No.640/2020 HC-KAR
Decision
ORDER i) Writ petition is allowed ii) The impugned orders dated 18.07.2019 and 20.12.2019 on IA.Nos.1 and 5 respectively in Ex.No.25239/2018 by the XXVI Additional City Civil & Sessions Judge, Mayohall Bengaluru CCH-20 are hereby set aside. iii) The trial Court is directed to consider and dispose of IA.No.5 filed by the petitioner under Order 6 Rule 17 of CPC after providing an opportunity to all the parties and in accordance with law. Sd/- (VIJAYKUMAR A. PATIL) JUDGE ABK List No.: 1 Sl No.: 51