Allowed

Sri N Narasimhaiah v. Sri G Narasaiah

Karnataka HC16 Nov 2021WP/6615/2020

Case brief

AI extract

What is this about?

In three combined writ petitions under Article 227, the High Court of Karnataka allowed the petitions and quashed orders passing attachment warrants against judgment debtors' immovable properties. The Court held that the executing court cannot issue coercive measures for attachment without first definitively establishing the identity of the encroached area within the scope of the decree, especiall

What did the court decide?

The impugned orders dated 02.02.2019 and 31.08.2019 in Execution Petition No.2182/2002 issuing attachment warrants on Sy.No.94/1 are quashed.

Sri N Narasimhaiah Vs Sri G Narasaiah — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF NOVEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO. 6615/2020 (GM-CPC) C/W WRIT PETITION NO. 45289/2019 (GM-CPC) C/W WRIT PETITION NO. 6915/2020 (GM-CPC)

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IN WP NO. 6615/2020

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BETWEEN :

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SRI N NARASIMHAIAH AGED ABOUT 64 YEARS, S/O LATE NARASIAPPA R/AT KODIGEHALLI SAHAKARANAGARA-POST, YELAHANKA HOBLI, BENGALURU NORTH TALUK BENGALURU DISTRICT-560092.

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... PETITIONER

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(BY SRI. RAMA BHAT K, ADVOCATE)

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AND :

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1 . SRI G NARASAIAH AGED ABOUT 67 YEARS, S/O LATE GANGAPPA

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2 . K G RAMA MURTHY AGED ABOUT 63 YEARS, S/O LATE GANGAPPA

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3 . G VENKATESH AGED ABOUT 59 YEARS, S/O LATE GANGAPPA

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RESPONDENT NOS.1 TO 3 ARE RESIDENTS OF KODIGEHALLI, SAHAKARANAGARA-POST, YELAHANKA HOBLI, BENGALURU NORTH TALUK, BENGALURU-560092.

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4 . SAROJAMMA AGED ABOUT 65 YEARS, W/O LATE SUBBANNA

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5 . K S NARASIMHA MURTHY AGED ABOUT 43 YEARS, S/O LATE SUBBANNA

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6 . K S NAGARAJ AGED ABOUT 36 YEARS, S/O LATE SUBBANNA

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RESPONDENT NOS.4, 5 AND 6 ARE RESIDING AT NO.110, OLD SOCIETY ROAD, KODIGEHALLI VILLAGE, SAHAKARANAGARA-POST, BENGALURU-560092.

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7 . KRISHNAPPA AGED ABOUT 54 YEARS, S/O SRI. NARASIYAPPA R/AT KODIGEHALLI, NEAR RATION DEPOT, SAHAKARA NAGARA POST, BENGALURU-560092.

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... RESPONDENTS

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(BY SRI. PRADEEP NAIK K, ADVOCATE FOR R1 TO R3; SRI. N.THIMMEGOWDA, ADVOCATE FOR R4 TO R5)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 31.08.2019 PASSED BY ISSUING ATTACHMENT WARRANT OF PROPERTY OF IMMOVABLE OF JDRS/DEFENCE IN SY.NO.94/1 BY THE HONBLE XX ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-32) IN EXECUTION PETITION NO.2182/2002 AS ANNEXURE-A

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IN WP NO. 45289/2019

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BETWEEN

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1 . SMT SAROJAMMA W/O LATE N SUBBANNA AGED ABOUT 65 YEARS,

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2 . SRI K S NARASHIMAMURTHY S/O LATE N SUBBANNA AGED ABOUT 43 YEARS,

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3 . SRI K S NAAGARAJ S/O LATE N SUBBANNA AGED ABOUT 36 YEARS,

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ALL ARE RESIDING AT NO.110, OLD SOCIETY ROAD, KODIGEHALLI VILLAGE SAHAKARANAGAR POST BENGALURU-560092

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... PETITIONERS

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(BY SRI. THIMMEGOWDA N, ADVOCATE FOR SRI. ARAVIND C. DESAI, ADVOCATE)

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AND :

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1 . SRI G NARASAIAH AGED ABOUT 67 YEARS, S/O LATE GANGAPPA

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2 . K G RAMA MURTHY AGED ABOUT 63 YEARS, S/O LATE GANGAPPA

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3 . G VENKATESH AGED ABOUT 59 YEARS, S/O LATE GANGAPPA RESPONDENT NOS.1 TO 3 ARE RESIDENTS OF KODIGEHALLI, SAHAKARANAGARA-POST, YELAHANKA HOBLI, BENGALURU NORTH TALUK, BENGALURU-560092.

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4 . SRI. NARASIMHAIAH AGED ABOUT 62 YEARS, S/O. SRI. NARASIAPPA

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5 . SRI. N.KRISHNAPPA S/O. SRI. NARASIAPPA AGED ABOUT 54 YEARS SL.NO.4 AND 5 ARE R/AT KODIGEHALLI NEAR RATION DEPOT SAHAKARNAGAR POST BENGALURU - 560 092 ... RESPONDENTS

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(BY SRI. PRADEEP NAIK K, ADVOCATE FOR R1 TO R3; SRI. N.THIMMEGOWDA, ADVOCATE FOR R4; SRI. D.G.CHINNAPPA GOWDA, ADVOCATE FOR R5)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 31.08.2019, PASSED IN EXECUTION PETITION NO.2182/2002, ON THE FILE OF THE XX ADDITIONAL CITY CIVIL JUDGE (CCH-32), AT

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BANGALORE, UNDER ATTACHMENT WARRANT ANNEXURE-F.

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IN WP NO. 6915/2020

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BETWEEN

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1 . SMT SAROJAMMA W/O LATE N SUBBANNA AGED ABOUT 65 YEARS,

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2 . SRI K S NARASHIMAMURTHY S/O LATE N SUBBANNA AGED ABOUT 43 YEARS,

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3 . SRI K S NAAGARAJ S/O LATE N SUBBANNA AGED ABOUT 36 YEARS, ALL ARE RESIDING AT NO.110, OLD SOCIETY ROAD, KODIGEHALLI VILLAGE SAHAKARANAGAR POST BENGALURU-560092

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... PETITIONERS

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(BY SRI. THIMMEGOWDA N, ADVOCATE)

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AND :

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1 . SRI G NARASAIAH AGED ABOUT 67 YEARS, S/O LATE GANGAPPA

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2 . K G RAMA MURTHY AGED ABOUT 63 YEARS, S/O LATE GANGAPPA

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3 . G VENKATESH AGED ABOUT 59 YEARS, S/O LATE GANGAPPA

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RESPONDENT NOS.1 TO 3 ARE RESIDENTS OF KODIGEHALLI, SAHAKARANAGARA-POST, YELAHANKA HOBLI, BENGALURU NORTH TALUK, BENGALURU-560092.

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4 . SRI. NARASIMHAIAH AGED ABOUT 62 YEARS, S/O. SRI. NARASIAPPA

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5 . SRI. N.KRISHNAPPA S/O. SRI. NARASIAPPA AGED ABOUT 54 YEARS

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SL.NO.4 AND 5 ARE R/AT KODIGEHALLI NEAR RATION DEPOT SAHAKARNAGAR POST BENGALURU - 560 092 ... RESPONDENTS

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(BY SRI. PRADEEP NAIK K, ADVOCATE FOR R1 TO R3; SRI. RAMA BHAT K, ADVOCATE FOR R4; SRI. D.G.CHINNAPPA GOWDA, ADVOCATE FOR R5)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 02.02.2019 PASSED IN EXECUTION PETITION NO.2182/2002, ON THE FILE OF THE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-32) AT BENGALURU UNDER ANNEXURE-L, BY ISSUANCE OF WRIT OF CERTIORARI AND ETC.

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THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioners, who are the third judgment debtors and the legal representatives of the second judgment debtors, Sri.Subbanna, in Ex.No.2182/2002 on the file of the XX Additional City Civil Judge, Bengaluru (for short, ' the executing Court' ), have impugned the executing Court’s following two orders dated 2.2.2019 and 31.8.2019. The executing Court by the impugned order dated 02.02.2019 has accepted the report filed by the Taluka Surveyor attached to the office of the Bengaluru North Taluk, and by the subsequent order dated 31.08.2019 has issued warrant for attachment of the petitioners’ immovable property [as also immovable properties of the other judgment debtors] in Sy.No.94/1 of Kodigehalli Village, Yelahanka Hobli, Bangalore North Taluk.

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The circumstances leading to the petitions are stated thus:

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2.1) It is undisputed that two brothers viz ., Sri.

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Gangappa and Sri. Narasiyappa , were the absolute owners of 5 acres 23 guntas in Sy.No.94/1 of Kodigehalli Village, Yelahanka Hobli, Bangalore North Taluk. They partitioned this land inter se with Sri.Gangappa taking an extent of 2 acres 28 guntas and Sri.Narasiyappa taking 2 acres 35 guntas. There is some controversy as regards the extent of kharab and the allotment of kharab inter se brothers.

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2.2) The children of Sri. Gangappa, who are the decree holders [hereafter referred to as the Decree – Holders], have filed suit in O.S.No.3578/2001 against the sons of Sri. Narasiappa viz ., (i) Sri. Narasiyappa, (ii) Sri. N.Subbannaiah (iii) Sri. Narasimhaiah and (iv) Sri. N.Krishnappa [the defendants]. However, within a few months from the date of this suit, the decree holders and the aforesaid sons of Sri.Narasiyappa [the defendants, including some of the petitioners] have filed

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a compromise petition. The essential terms of the compromise must be recorded, and they read as follows:

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"The defendants submit that they are hereby undertaking that they themselves or their agents, their men workers, and other persons will not interfere in the peaceful possession and enjoyment of the suit schedule property of the plaintiffs.

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The plaintiffs submits that they are satisfied by virtue of the above undertaking given by the defendants and prays before this Hon'ble court to pass necessary orders in the case.

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In terms of above terms and conditions both the parties herein most respectfully pray that this Hon'ble court may be pleased to pass a judgment and decree as agreed by both the parties in the interest of justice and equity."

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2.3) The suit in O.S.No.3578/2001 is decreed on 21.06.2001 in terms of this compromise petition, and on 07.10.2002 the decree holders have initiated the present execution proceedings for arrest of the aforesaid

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sons of Sri.Narasiyappa and for Police protection with appropriate direction to the Jurisdictional Police. In support of this execution petition, the decree holders assert that despite the compromise decree, the aforesaid judgment debtors (including some of the petitioners) trespassed into their property measuring 2 acres 28 guntas in Sy.No.94/1 of Kodigehalli Village and started digging for some kind of a construction work; they did not yield to their request to abide by the terms of the compromise decree.

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2.4) The execution petition was closed on

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08.07.2003, but this Court in the revision petition in C.R.P.No.2491/2003 found it fit to set aside the order of dismissal of the execution case with a direction to the executing Court to pass appropriate orders after giving an opportunity of hearing to the decree holders. Both the Decree Holders and the Judgment Debtors have lead their evidence with the restoration of the execution

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proceedings, and on behalf of the aforesaid Judgment Debtors, the eldest amongst them Sri Narasimhaiah, son of Narasiyappa is examined.

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2.5) The executing Court after this evidence has again dismissed the execution petition with certain observations. This Court in the petition filed by the decree holders in CRP 205/2010 has recorded certain unanimous submissions by the learned counsel for the parties and has restored the execution petition for reconsideration. This Court's order in this regard in CRP 205/2010 reads as under:

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"6. I have heard both the side at length and I am satisfied that the lis between the parties had one time been amicably resolved. It has now taken a different turn whereby parties are at loggerheads. The issue is simple. Fortunately, both the decree holders and the judgment debtors are seeking right over the immovable property i.e., owned by them. The property in question is abutting property of the judgment debtor. Therefore, as to whether there was any

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encroachment by the judgment debtors could easily be identified by joint survey in the presence of both the parties and then to demarcate the boundaries of their respective portions. The learned counsel for the both the sides very fairly submit that they are interested in having litigation resolved by getting property survey and it will have long lasting settlement between the parties. Accepting this proposition also I am satisfied that the impugned order dismissing the execution petition needs to be set aside. Hence, the Trial Court be directed to issue a commission appointing a Surveyor from the concerned department with instructions to survey the land in Sy.No. 94/1 indicating portions of the land measuring 2 acres 28 guntas belonging to the decree holders and also to indicate the land belonging to the judgment debtors and to demarcate the land. The Trial Court shall issue notice indicating the proposed date of inspection to both the parties through their respective counsel and secure such report and then decide as to whether therein any encroachment by the judgment debtors vis-à-vis from the decree holders and then pass an appropriate order. However, if there is any violation of the terms of the decree passed in OS No. 3573/2001 it is open

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to enforce the same as provided under Order 21 rule 32 of CPC."

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After this remand order, the executing Court has by its order dated 5.2.2011 appointed a departmental Surveyor as the Court Commissioner to hold a joint survey with liberty to the decree holders and the defendants/Judgment Debtors to file Memo of Instructions. After this order, notice of such survey is issued on 13.9.2011 and the Commissioner's warrant is executed, and a report is also filed. It is seen from the mahazar filed by the Court Commissioner that he has executed Commissioner's warrant in terms of the instructions issued by the respective parties.

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The Commissioner has filed his report enclosing a sketch showing the entire extent of 5 acres 23 guntas and 7 guntas of kharab originally owned by the two brothers Sri. Gangappa and Sri. Narasiyappa, and after demarcating the portion allotted to Sri.

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Gangappa [which is now claimed by the decree holders], he has reported that judgment debtors/defendants have encroached an extent of 13 guntas and therefore the decree holders are in possession of an extent which is reduced by 13 guntas.

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The Commissioner has been cross-examined on behalf of the Judgment Debtors. At this point of time, this Court must refer to the demise of the second defendant/Judgment Debtor and the application filed by the decree holders to bring the legal representatives on record. The notice of the application is served on the legal representatives (the petitioners in W.P.No.6915/2020 and W.P.No.45289/2020) and they have also appeared through counsel, but there is no order allowing the application bringing them, the legal representatives, on record. However, the Court Commissioner is cross-examined on behalf of the third and fourth judgment debtors/defendants and also on

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behalf of one of the legal representatives of the second Judgment Debtor/defendant. Therefore, the petitioners [the legal representatives] cannot have any grievance on the ground that there is no specific order permitting them to be brought on record.

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It is brought out in the cross-examination of this witness/Court Commissioner that the decree holder and the judgment debtors/legal representatives have formed certain roads in the respective extents but that he has not indicated the same in his report; he has also admitted that lands in and around the subject land viz., land in Sy.No.94/1 of Kodigehalli village are developed but the development is also not shown in his Report. The executing Court by its order dated 02.02.2019 has accepted the Commissioner's Report.

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The executing Court has opined that the

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Commissioner has marked the respective extents based

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on the actual measurement and the Judgment Debtors (the petitioners) have not brought out anything in the Commissioner’s cross-examination to undermine his report. The executing Court has also opined that mere suggestions to the Commissioner does not affect the credibility of the report, and the report does not suffer from any fault or mistake. After this order dated 02.02.2019, the executing Court by its order dated 31.08.2019 has issued attachment warrant opining that the Judgment Debtors (including some of the petitioners) have deliberately disobeyed the orders of permanent injunction and it would be permissible in such circumstance given the provisions of Order XXI Rule 32 CPC to take necessary action as would be warranted.

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The learned counsels for the petitioners (the third Judgment Debtor and the legal representatives of the second Judgment Debtor) canvass that the

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Commissioner's Report is rendered wholly tenuous in view of the admitted facts such as the entire area in and around the land in Sy.No.94/1 of Kodigehalli village is fully developed with formation of roads not only by the petitioners in their extent but also by the decree holders in their extents with third parties having undertaken construction in the areas transferred by the parties to the proceedings. They submit that the decree holders have transferred 23 guntas in favour of one of the sisters, Smt. Rudramma, and the Commissioner has not even shown this extent; and the Commissioner, without identification of the proper boundary marks and without reference to the survey records, has filed a report stating that the petitioners and the other judgment debtors have encroached 13 guntas of the land measuring 2 acres and 28 guntas of the decree holders’ land. They also submit that this Report should not be the basis for initiation of any coercive measures.

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As against these submissions, the learned

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counsels for the decree holders [the respondents] do not dispute that substantial portion of the decree holders' land measuring 2 acres 28 guntas in Sy.No.94/1 is actually developed, but he contends that 36 guntas is still vacant and this would be apart from the 13 guntas that is encroached by the petitioners/other judgment debtors despite the decree for injunction based on the compromise petition.

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The learned counsels also seek to place reliance on the partition deed executed by the petitioners and their family members to say that it would demonstrate that the petitioners and their family members are in excess of more than 2 acres 28 guntas claimed by them with each of the four brothers taking 36 guntas and the four sisters being allotted separate sites in the same survey number. They also make a reference to the litigation commenced by the sisters in

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O.S. No.3357-60/2007 on 1.10.2011 which is after the remand by this Court in CRP No.205/2010¹ . The learned counsels for the decree holders lastly rely upon the decision of this court in Rajeshwari vs. State of Karnataka by West Police Station, Raichur and another² to support the impugned order .

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There cannot be any doubt about the proposition that if there is a violation of the decree for prohibitory injunction, the decree holders could seek appropriate remedy as contemplated under the provisions of Order XXI Rule 32 CPC. This Court must refer to the decision of the Hon’ble Supreme Court in Kanwar Singh v. High Court of Delhi³ where it is held

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"The provision of Order XXI Rule 32 CPC applies to prohibitory as well as mandatory injunctions. In other words, it applies to cases where the party is directed to do some act and also to the

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1 In response, the learned counsel for the petitioners submits that this suit in O.S.No.5048/2010 is withdrawn

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2 2016(3) KCCR 2255

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3 (2012) 4 SCC 307

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cases where he is abstained from doing an act. Still to put it differently, a person disobeys an order of injunction not only when he fails to perform an act which he is directed to do but also when he does an act which he is prohibited from doing. Execution of an injunction decree is to be made in pursuance of the Order XXI Rule 32 CPC as the CPC provides a particular manner and mode of execution and therefore, no other mode is permissible."

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But, in the facts and circumstances of the case, the more appropriate questions would be: whether it can be concluded definitely that the decree holders/ respondents have established the identity of the area which is allegedly encroached by the petitioners in their land in Sy.No.94/1 of Kodigehalli Village, Yelahanka Hobli, Bangalore North Taluk, and if the identity is not established accordingly, could the executing Court have issued warrant under Order XXI Rule 32 of CPC.

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The decree for permanent injunction in

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favour of the Decree Holders/respondent is for an extent of 2 acres 28 guntas Sy.No.94/1 of Kodigehalli Village, Yelahanka Hobli, Bangalore North Taluk. If the decree is to be enforced against violation of this decree, the encroachment within this extent must be reasonably established otherwise the enquiry would be beyond the decree. It is settled legal proposition that the executing Court does not have the power to go beyond the decree. Further, it is crucial that the Decree Holders/respondent establish the identity of the alleged encroachment; otherwise the execution proceedings will fail at the altar of the settled law that if the identity of the property, (in this case the identity of the encroached property), is not established, the decree will be inexecutable. This Court must refer to the decision of the Hon’ble Supreme Court in Shafiqur Rehman Khan v. Mohd. Jahab Gegum⁴ in this regard .

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4 (1982) 2 SCC 456

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It is undisputed that the land in Sy.No.94/1 of Kodigehalli Village, Yelahanka Hobli, Bangalore North Taluk as also the adjacent lands are substantially developed with formation of roads, creation of thirdparty rights and construction in different portions. When it is undisputed that the Commissioner’s Report does not refer to these developments, this Court must opine that the identification of the alleged encroachment as shown in the Commissioner's Report becomes doubtful. Further, this Court must also observe that, though the transfer in favour of Smt. Rudramma by the decree holders/respondents and the partition amongst the family members of the petitioners’ family are admitted, the Commissioner's Report mentions neither creating further doubts.

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Finally, the Commissioner's Report is rendered very tenuous with his own admission that he

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has not indicated the developments in the subject lands though he admits the same. Therefore, it cannot justifiably be opined that the Commissioner’s Report establishes the identity of the allegedly encroachment in violation of the compromise decree. It must also be observed that neither the petitioners nor the decree holders have lead in evidence on the nature of the development or the extent of lands retained by them. The parties concerned will have to place on record all the necessary evidence to cover the gamut of questions that would have to be answered on the extents owned, extents transferred, the extents retained with and without constructions and the areas lost for formation of road.

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The reference to the different proceedings relied upon by the petitioners and the decree holders also does not address the correlation of identity of the decree holder's property and the alleged encroachment, especially when there is no dispute that the petitioners

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and the family members also own certain portions in this very land in Sy.No.94/1 of Kodigehalli Village, Yelahanka Hobli, Bangalore North Taluk. Therefore, neither the acceptance of the Commissioner's Report nor the subsequent order of issuing warrant can be sustained in law, and the petitions must succeed. It must be observed that the disposal of the execution proceedings cannot by itself preclude any remedy that would be available to the parties. As such, the following:

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ORDER

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The petitions in W.P.No.6915/2020, and W.P.No.45289/2019 are allowed. The impugned orders dated 2.2.2019 and 31.8.2019 in Execution Petition No.2182/2002 on the file of the XX Additional City Civil and Sessions Judge, Bengaluru is quashed.

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SD/JUDGE

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Sri N Narasimhaiah v. Sri G Narasaiah

Case brief

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Sri N Narasimhaiah v. Sri G Narasaiah

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