The High Court
Case Details
- 1 - NC: 2025:KHC:22098 W.P. No.29634/2019 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.29634/2019 (GM-CPC) Digitally signed by RUPA V Location: High Court of karnataka BETWEEN: SMT. JAKSHAMMA AGED 57 YEARS W/O MANJAPPA R/AT. SAGAR ROAD SORABA TOWN SHIVAMOGGA 574229. (BY SRI. ROHIT URS D, ADV., FOR SMT. MAMATHA ROY, ADV.,) AND: 1. SRI. G.T. RAMESHA S/O THIMMANNA AGED ABOUT 47 YEARS ELECTRICAL CONTRACTOR. 2. SRI. G.T. SURESHA S/O THIMMANNA AGED ABOUT 45 YEARS ELECTRICAL CONTRACTOR. BOTH ARE RESIDING AT SAGAR ROAD, SORABA TOWN SHIVAMOGGA 574229. (R1 SERVED V/O/DTD:08.07.2022 NOTICE TO R2 H/S) …PETITIONER …RESPONDENTS THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE ORDER DTD:8.4.2019 PASSED BY THE - 2 - NC: 2025:KHC:22098 W.P. No.29634/2019 HC-KAR CIVIL JUDGE, JMFC AT SORABA ON IA NO.VIII IN EXECUTION PETITION NO.17/2008 VIDE ANNEXURE-A & ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED ON 20.06.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL CAV ORDER This writ petition is filed challenging the order dated 08.04.2019 passed by the Civil Judge and JMFC, Soraba on I.A.No.VIII in Ex.P.No.17/2008. 2. Heard. 3. Sri.Rohit Urs D, learned counsel for the petitioner submits that the petitioner filed a suit for mandatory injunction for demolition of the constructed structure put up by the respondents-judgment debtors (JDRs) in 'B' Schedule property by encroaching upon the property of the petitioner. The said suit came to be decreed. The petitioner filed an execution petition to execute the judgment and decree. The respondents-JDRs filed an application for appointment of an Engineer as the Court Commissioner to measure Schedule A and B properties which came to be dismissed. The decree came to be executed and thereafter, the respondents-JDRs filed - 3 - NC: 2025:KHC:22098 W.P. No.29634/2019 HC-KAR an application claiming damages of Rs.3,00,000/- alleging that during the execution, the Bailiff has caused damage to other properties. After two years of the execution, another application was filed by the respondents-JDRs claiming damages of Rs.35,00,000/- and also for appointment of the Court Commissioner to measure the damages. The said application was allowed without considering the material on record. It is further submitted that the petitioner obtained the decree for mandatory injunction on 30.11.2007. However, the respondents-JDRs dodged the proceedings for one or the other reason and after execution of the decree, a frivolous application was filed contrary to their stand in the execution proceedings. Without considering any of these aspects, the Executing Court allowed the application for appointment of the Court Commissioner. It is also submitted that the filing of the application by the respondents-JDRs is an abuse of the process of law and the Executing Court failed to take note of its earlier orders and mechanically allowed the application under the impugned order. - 4 - NC: 2025:KHC:22098 W.P. No.29634/2019 HC-KAR 4. Though the respondents are served, they remained absent. 5. I have heard the arguments of the learned counsel for the petitioner and perused the material available on record. I have given my anxious consideration to the submission advanced by the learned counsel for the petitioner. 6. The petitioner obtained a decree for mandatory injunction in O.S.No.31/2004 on 30.11.2007. An execution petition came to be filed in Ex.P.No.17/2008 to execute the said judgment and decree by demolishing the constructed structure of 2¼ feet East-West on the northern side of the suit Schedule 'B' property. The records indicate that the respondents' appeals in R.A.No.508/2007 and RSA No.212/2008 were dismissed. In the execution proceedings, the respondents-JDRs filed an application in I.A.No.VIII under Order 26 Rule 9 of the Code of Civil Procedure, 1908 seeking appointment of an Engineer as the Court Commissioner to measure Schedule A and B properties. The said application was duly considered by the Executing Court and was rejected vide order dated 27.11.2013. The Executing Court vide order dated - 5 - NC: 2025:KHC:22098 W.P. No.29634/2019 HC-KAR 06.07.2015 directed the Bailiff to demolish the constructed structure put up by the JDRs encroaching to the extent of 2¼ feet as per the decree, with the assistance of a Junior Engineer, PWD, Soraba and the police aid with both men and women. The case was ordered to be called on 15.07.2015. The Executing Court recorded the finding in the said order that even after dismissal of the appeals filed by the JDRs, till today the JDRs have failed to obey the decree. The JDRs filed another application in I.A.No.XVIII to measure Schedule A and B properties through the PWD Engineer and Bailiff before demolishing the constructed structure. The Executing Court rejected the said application on 10.08.2016 wherein it has recorded the finding that the order of demolition of the constructed structure by the Executing Court was challenged by the JDRs before this Court in W.P.No.31308/2015. The said writ petition was also dismissed on 14.07.2016. This Court has made the following observation: "Once the decree has been passed by the trial Court after considering the available evidence, at the execution stage, the execution Court cannot deviate from the decree in any manner and therefore, through the resort to Articles 226 and 227 of the Constitution - 6 - NC: 2025:KHC:22098 W.P. No.29634/2019 HC-KAR of India fresh such evidence cannot be entertained and
Decision
execution cannot be stalled in the writ petition. Thus, the writ petition are misconceived and liable to be dismissed." 7. The respondents-JDRs filed a memo dated 20.08.2016 in the execution proceedings stating that he is undertaking to execute the order of demolition of the constructed structure put up by them encroaching 2¼ feet East to West on the northern side of suit Schedule 'B' property as per the decree. The Executing Court vide order dated 24.08.2016 allowed the memo subject to the following conditions: "1. Fifteen days (15) time is granted to the Judgment Debtor to demolish the constructed structure as identified by PWD Engineer and Court bailiff. 2. The Judgment Debtor is hereby directed to demolish the constructed structure within 15 days from today. 3. The Judgment Debtor is directed to report the demolition of the constructed structure on or before 08.09.2016. 4. If the Judgment Debtor fails to demolish the constructed structure as undertook by him., the Court bailiff without any delay has to demolish the structure as ordered by the Court. - 7 - NC: 2025:KHC:22098 W.P. No.29634/2019 HC-KAR 5. If any damage occurs at the time of demolition of the constructed structure, the Judgment Debtor himself will be liable for the same. 6. The Court bailiff is hereby directed to report the demolition work to this Court once in three days from today." 8. The records indicate that the respondents-JDRs did not adhere to the undertaking given by them in the memo dated 20.08.2016. However, they filed another memo along with an affidavit stating that though the Court directed the Court Bailiff to execute the decree with the assistance of the PWD Engineer, neither the PWD Engineer or the Bailiff inspected the spot nor any sketch is prepared for demolition of the illegal structure and under the pressure of the decree holder, compound wall and building is demolished more than the decree and damage is caused to the tune of Rs.3,00,000/-. The Executing Court, considering the earlier orders passed by it and also considering the conduct of the respondents-JDRs, recorded detailed reasons and rejected the affidavit of the respondents-JDRs with a cost of Rs.2,000/- and directed the Bailiff to execute the decree forthwith, vide order dated 24.10.2016. - 8 - NC: 2025:KHC:22098 W.P. No.29634/2019 HC-KAR 9. The records indicate that the Bailiff with the assistance of police has executed the judgment and decree in question and filed a report at Annexure-D which has been accepted by the Executing Court. The respondents-JDRs filed another application under Order XXVI Rule 9 of the CPC praying to appoint an expert Civil Engineer as the Court Commissioner to ascertain the damages caused to the respondents-JDRs for the act of illegal demolition of the schedule property of the respondents-JDRs. The said application, under the impugned order was allowed by the Executing Court on the ground that there is demolition of other building which was not covered by the suit schedule property and the Executive Engineer PWD, Soraba was appointed as the Court Commissioner to ascertain the assertions made in the application. The Executing Court, while considering the application filed by the respondents-JDRs has mechanically allowed the same without taking note of the fact that the respondents-JDRs have dodged the execution proceedings on one or the other pretext. The records indicate that the respondents-JDRs have made all attempts to delay the execution of the decree obtained by the petitioner at the first - 9 - NC: 2025:KHC:22098 W.P. No.29634/2019 HC-KAR instance and filed a similar application to measure and mark the portion required for demolition. The said applications came to be rejected by the Executing Court. 10. Thereafter, after the order of demolition with the police help, the respondents-JDRs filed an application seeking to measure the property through PWD Engineer and Bailiff before demolishing the constructed structure. The Executing Court, taking note of the observations of this Court in the writ petition, rejected the said application by imposing a cost of Rs.2,000/-. Again, the respondents-JDRs filed a memo of undertaking dated 20.08.2016 to demolish the encroached portion and the Executing Court has shown indulgence. However, the said undertaking was not complied and it was dodged further. Later, memo along with an affidavit was filed by the respondents-JDRs claiming that excess demolition has caused loss to the tune of Rs.3,00,000/-. The said affidavit and memo came to be rejected by the Executing Court by imposing cost. Thereafter, again another application was filed for appointment of the Court Commissioner claiming that there is damage to the tune of Rs.35,00,000/-. In my considered view, - 10 - NC: 2025:KHC:22098 W.P. No.29634/2019 HC-KAR the Executing Court has committed a grave error in allowing the application of the respondents-JDRs without looking into the earlier orders passed by it and the stand of the respondents-JDRs. The respondents-JDRs cannot be allowed to approbate and reprobate in the execution proceedings. The respondents-JDRs have suffered numerous orders passed by the Executing Court. They agreed to remove the encroachment on their own but failed to adhere to the same. Later, they claim that there is excess demolition to the tune of Rs.35,00,000/- and seek for appointment of the Court Commissioner. The Executing Court has failed to take note of the fact that the respondents-JDRs have not laid any foundation for the tall claim of Rs.35,00,000/- and they seek for the appointment of the Court Commissioner to prove such claim. Mere assertion in the application for appointment of the Court Commissioner cannot be the sole basis for the Executing Court to jump to the conclusion and order for appointment of the Court Commissioner to ascertain the damage. The appointment of the Court Commissioner is to ascertain the factual assertions made by the parties to the proceedings which would be based on the existing pleadings and the material - 11 - NC: 2025:KHC:22098 W.P. No.29634/2019 HC-KAR available on record. In the instant case, the filing of the application by the respondents-JDRs is an abuse of the process of law which is required to be dealt with iron hand. I am of the considered view that the Executing Court has clearly erred in entertaining the application filed by the respondents-JDRs and in passing the impugned order. 11. For the aforementioned reasons, I proceed to pass the following: ORDER (i) The writ petition is allowed. (ii) The impugned order dated 08.04.2019 passed by the Civil Judge and JMFC, Soraba on I.A.No.VIII in Ex.P.No.17/2008 is set aside. Consequently, I.A No.VIII filed by the respondents-JDRs under Order XXVI Rule 9 of the CPC in Ex.P.No.17/2008 is rejected with exemplary cost of Rs.25,000/- payable by the respondents-JDRs to the petitioner-decree holder. RV List No.: 1 Sl No.: 1 Sd/- (VIJAYKUMAR A. PATIL) JUDGE