Writ Petition No. 35311 of 2018 · The High Court
Case Details
- 1 - NC: 2025:KHC:1058 WP No. 35311 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 35311 OF 2018 (GM-CPC) BETWEEN: DEVAKI HIRIYANNA SHETTY AGED ABOUT 68 YEARS, W/O HIRIYANNA SHETTY RESIDING AT ‘DEVI KRIPA’ PADUBHAGA BOMMARABETTU VILLAGE, POST HIRIADKA UDUPI TALUK AND DISTRICT (BY SRI. S.K.ACHARYA, ADVOCATE) AND: SARASWATHI K. SHETTY AGE 66 YEARS, W/O KARUNAKARA SHETTY RESIDING AT MOODUMANE PADUBHAGA BOMMARABETTU VILLAGE, POST HIRIADKA UDUPI TALUK AND DISTRICT …PETITIONER
Legal Reasoning
(BY SRI.K.PRASAD HEGDE, ADVOCATE) …RESPONDENT THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED: 16.3.2018 PASSED IN I.A.NO. III IN EXECUTION CASE NO. 45/2013 ON THE FILE OF THE COURT OF THE II ADDL. CIVIL JUDGE & JMFC, UDUPI VIDE ANNEXURE-A. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:1058 WP No. 35311 of 2018 CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the order passed in I.A.No.3 in Ex.No.45/2013 dated 16.03.2018 by the II Addl. Civil Judge and JMFC, Udupi, the JDR is before this Court. 2. The DHR had filed the suit for permanent injunction, which came to be decreed in part as far as the suit item No.11 of the property is concerned. She had filed a petition before the Trial Court under Order 21 Rule 32 Read with Section 151 of CPC that the defendant had violated the judgment and decree. She had got the unauthorized surveyor to survey the property and in that regard, she had already given a complaint to the police. The Trial Court had issued a show cause notice to the defendant/JDR. She had filed her objections for the same and also filed an application under Section 47 of the CPC that the execution petition is not maintainable. It is the case of the DHR that the execution petition is not maintainable. The measurement of the property with the assistance of the surveyor does not amount to disobedience of the decree passed by the Trial Court. The DHR has deliberately filed the petition. Further, the DHR has - 3 - NC: 2025:KHC:1058 WP No. 35311 of 2018 obtained a decree misleading the Trial Court. The JDR, being a senior citizen, not in a position to challenge the decree by preferring an appeal, as such she did not prefer any appeal. It is stated that there is a boundary dispute and the DHR has been obstructing the JDR from fixing the boundaries through the Survey Department. Whenever an application is filed for survey, the DHR is coming up with one application or the other, as it is stated that by misusing the decree, the DHR has successfully prevented the survey department for fixing the boundary line existing between the properties. According to the JDR, the petition filed by the DHR is not maintainable and she has not violated the judgment and decree. 3. Learned counsel appearing for the JDR/petitioner submits that right from the stage of the suit, where he filed the written statement, it is stated that the survey number of the plaintiff is Sy.No.341/2 and survey number of the defendant is Sy.No.341/9. It is also stated that they have a common boundary and also that there are boundary disputes. After the judgment and decree, she had only applied to the survey department to survey the land wherein she has categorically mentioned the survey number as Sy.No.341/9. It is the case of - 4 - NC: 2025:KHC:1058 WP No. 35311 of 2018 the DHR that she has asked some unauthorized surveyor to survey the land which is incorrect. It is submitted that at any stretch that would not amount to violation of the judgment and decree passed by the Trial Court as such she filed an application under Section 47 of CPC. The Trial Court had failed to consider the same and dismissed the application. It is submitted that the defendant/JDR is an old lady and the Trial Court ought to have considered the same. 4. Learned counsel appearing for the DHR/respondent submits that when the DHR had filed an application stating that the JDR had violated the judgment and decree and when she filed her objections, the Trial Court would have considered whether there is any violation or not. For that, an application that is filed by the JDR under Section 47 of CPC is not maintainable and the Trial Court had rightly dismissed the application. He submits that there is no ground to interfere with the order passed by the Trial Court. 5. Having heard the learned counsels on either side, perused the material on record. There is a judgment and decree whereby a permanent injunction is granted against the - 5 - NC: 2025:KHC:1058 WP No. 35311 of 2018 defendant restraining her from interfering with plaint 11 of the suit schedule property that is Sy.No.341/2. According to the defendant, her property is in Sy.No.341/9 and both the properties are the adjacent properties. She made an application to the surveyor to survey the land and according to the JDR, she has not violated the decree and according to the DHR, she has violated the decree. When the JDR has filed her objections, it is for the Trial Court to decide whether there is any violation or not and without even letting the Trial Court to decide the said issue, an application is filed under Section 47 of CPC by the JDR. The Trial Court had rightly dismissed the application that such application is not maintainable and the Trial Court has to decide about whether there is any violation of the judgment and decree. In that view of the matter, this Court finds no reasons to interfere with the well considered order passed by the Trial Court. Accordingly, this Court is passing the following:
Decision
ORDER i. The Trial Court shall decide the pending application filed by the DHR on the merits of it - 6 - NC: 2025:KHC:1058 WP No. 35311 of 2018 without being influenced by any of the observations made by this Court while disposing of this application. ii. Accordingly, the writ petition is dismissed. iii. All I.As., in this writ petition, shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE BN List No.: 1 Sl No.: 3