Dismissed

Sri v. Venkatesh v Smt Kanthamma

Karnataka HC10 Oct 2023WP/17977/2022

Case brief

AI extract

What is this about?

Writ petition under Article 227 challenging an order allowing re-issuance of a delivery warrant in execution proceedings. The High Court upheld the Executing Court's finding that the decree holder was in possession and the judgment debtor had re-trespassed, dismissing the petition. All prior related proceedings had attained finality.

What did the court decide?

Writ petition dismissed; order of the Executing Court allowing I.A. No. 2 for re-issuance of delivery warrant upheld.

Sri v Venkatesh Vs Smt Kanthamma — Execution and Attachment | Karnataka HC (2023)

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NC: 2023:KHC:41371 WP No. 17977 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 17977 OF 2022 (GM-CPC)

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BETWEEN:

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SRI V VENKATESH S/O LATE VENKATASWAMY AGED ABOUT 51 YEARS R/AT 22 MADIVALA POST JOGI COLONY BENGALURU – 560 095.

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…PETITIONER

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(BY SRI. M.R.RAJAGOPAL, SENIOR COUNSEL FOR SRI. ERAPPA REDDY.M., ADVOCATE ) AND:

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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SMT KANTHAMMA W/O ANJANEYA REDDY AGED ABOUT 52 YEARS REP BY GPA HOLDER SRI A ANANDA S/O LATE ABBAIAH AGED ABOUT 59 YEARS R/AT SINGASANDRA VILLAGE BEGUR HOBLI BENGALURU – 560100. (BY SRI. S.M. CHADNRASHEKAR, SENIOR COUNSEL FOR SRI. N. MURALI, ADVOCATE)

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…RESPONDENT

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE XIV ADDITIONAL CITY CIVIL JUDGE AT BENGALURU (CCH-28) ON 29.8.2022 ON IA NO.II IN EX NO.1342/2013 AS PER ANNEXURE-A AND CONSEQUENTLY DIRECT THE RESPONDENT NOT TO DISPOSSESSION THE PETITIONER FROM B SCHEDULED PROPERTY IN THE GUISE OF EXECUTING WARRANT IN EX NO.1342/2013.

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THIS W.P. IS BEING HEARD AND RESERVED ON 18.08.2023 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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This petition is directed against the impugned order dated 29.08.2022 passed in Ex.No.1342/2013 by the XIV Addl.City Civil and Sessions Judge, Bangalore, whereby the application I.A.No.2 filed by respondent – decree holder under Order 21 Rule 35 r/w Section 151 CPC seeking re-issuance of delivery warrant against the petitioner – judgment debtor No.2 to hand over / restore possession of the suit schedule property to the respondent was allowed by the trial court.

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The brief facts leading to the case are as under:-

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That the respondent instituted a suit in O.S.No.6699/1992 against one Kempaiah (defendant No.1) and Sri.Venkatesh (defendant no.2), petitioner herein for declaration, possession, permanent injunction and other reliefs in relation to the suit schedule property by describing the same as site bearing No.474, formed out of old Sy.No.42, of Singasandra village, Begur Hobli, Bangalore South Taluk, measuring 30ft x 40ft as described in the schedule to the plaint. The said suit was contested by the petitioner – defendant No.2 as well as defendant No.1. After hearing the parties, the trial court dismissed the suit, aggrieved by

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which, the respondent preferred an appeal in RFA No.887/2003 before this Court. By judgment and decree dated 21.01.2013, this Court allowed the appeal and declared that the respondent – plaintiff was the owner, entitled to possession of the suit schedule property. This Court further clarified that its judgment and decree will not have any bearing on site No.520 claimed by the petitioner.

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The said judgment and decree passed by this Court in RFA No.887/2003 dated 21.01.2013 attained finality and became conclusive and binding upon all parties including the petitioner.

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2.1 The respondent - plaintiff instituted the instant execution proceedings in Ex.No.1342/2013 and pursuant to delivery warrant being issued by the Executing court, the respondent – decree holder took possession of the suit schedule property from the petitioner – judgment debtor No.2 on 11.09.2013 as per Bailiff’s report dated 12.09.2013, in pursuance of which, the Executing court closed the execution proceedings on 16.09.2013 on the ground that the decree was satisfied.

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2.2 Meanwhile, on 13.09.2013, the petitioner filed a suit in O.S.No.26429/2013 against the respondent and her power of attorney holder, Sri. A.Ananda s/o Abbaiah for permanent injunction and other reliefs by describing the plaint schedule

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property as Site No.520. In the said suit, the plaintiff having filed an application I.A.No.1 for temporary injunction, the trial court initially passed an ex-parte order of status-quo. Subsequent to the respondent entering appearance and filing I.A.No.3 under Order 39 Rule 4 CPC, the trial court passed a common order dated 22.11.2013 dismissing I.A.No.1 and allowing I.A.No.3, thereby vacating the ex-parte order of status-quo passed in favour of the petitioner.

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2.3 Aggrieved by the said order dated 22.11.2013, the petitioner preferred MFA No.9900/2013 which was dismissed by this Court vide final order dated 16.12.2013. The said order passed by this Court also attained finality and became conclusive and binding upon the petitioner.

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2.4 In addition to I.A.No.3 referred to supra, the respondent had also filed an application I.A.No.2 under Order 7 Rule 11 CPC seeking rejection of the plaint filed by the petitioner in O.S.No.26429/2013 before the trial court. The said application I.A.No.2 having been dismissed by the trial court vide order dated 22.11.2013, the respondent herein preferred CRP No.337/2014 which came to be allowed by this Court vide final order dated 10.12.2019, as a result of which, the plaint in O.S.No.26429/2013

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filed by the petitioner was rejected. The said order of this Court in CRP No.337/2014 dated 10.12.2019 has also attained finality and become conclusive and binding upon the petitioner.

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2.5 On 24.03.2021, the respondent filed the instant application I.A.No.2 seeking re-issuance of delivery warrant against the petitioner to hand over / restore possession of the suit schedule property to the respondent. It was contended that subsequent to the respondent taking possession of the suit schedule property by due process of law in the instant execution proceedings on 11.09.2013 as stated supra and the execution proceedings having been closed on 16.09.2013 by the Executing court, the petitioner once again illegally and highhandedly trespassed into the suit schedule property and dispossessed the respondent-decree holder, who filed W.P.No.49525/2013 before this Court seeking directions to the police authorities to provide him protection by removing the illegal structures put up by the petitioner over the suit schedule property. In the said petition, the petitioner herein was arrayed as respondent No.5. By final order dated 17.01.2014, this Court disposed of W.P.No.49525/2013 by reserving liberty in favour of the respondent to re-open the execution proceedings and seek restoration of possession of the suit schedule property and by

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permitting the petitioner to participate in the proceedings. Pursuant to the said order, the respondent filed the instant application I.A.No.2 before the Executing court on 24.03.2021. The petitioner having filed objections to the said application, the Executing court proceeded to pass the impugned order dated 29.03.2022 allowing I.A.No.2 which is assailed in the present petition.

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2.6 Meanwhile, the petitioner instituted one more suit in O.S.No.190/2020 against the respondent herein for declaration and permanent injunction in respect of the ‘A’ schedule property by describing the same as Site No.520 claimed by him. In the said suit, the petitioner described the ‘B’ schedule property as site bearing No.474 said to be belonged to the respondent. The petitioner filed I.A.No.1 for temporary injunction which was granted by the trial court in relation to the plaint ‘A’ schedule property vide order dated 24.08.2022. The said suit is pending adjudication before the trial court.

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Heard learned Senior counsel for the petitioner and learned Senior counsel for the respondent.

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In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned Senior

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counsel for the petitioner submits that the Executing court committed an error in allowing I.A.No.2 filed by the respondent. It was submitted that the impugned order is contrary to the findings recorded by this Court in RFA No.887/2003 and W.P.No.49525/2013. It was also submitted that in O.S.No.190/2020 filed by the petitioner against the respondent, the trial court passed an order of temporary injunction in favour of the petitioner on 24.08.2022 and as such, the Executing court erred in allowing I.A.No.2 filed by the respondent. It was therefore submitted that the impugned order passed by the Executing court deserves to be set aside and I.A.No.2 filed by the respondent was liable to be dismissed.

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Per contra, learned Senior counsel for the respondent would support the impugned order and submit that in the light of earlier orders passed by this Court in RFA 887/2003, MFA 9900/2013 and CRP 337/2014, all of which were in favour of the respondent and against the petitioner, having attained finality and become conclusive and binding upon the petitioner, the impugned order passed by the trial court does not warrant interference in the present petition, which is liable to be dismissed.

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I have given my anxious consideration to the rival submissions and perused the material on record.

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A perusal of the material on record including the impugned order will indicate that the Executing court framed the following points that arose for consideration as under:-

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“7. Now the following points arise for consideration of this Court.

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“1. Whether the Decree Holder Kanthamma passed away and therefore the Execution Petition filed by the GPA Holder is not maintainable?

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2. Whether the Execution Petition is not maintainable for not including all the parties to the suit in O.S.No.6699/1992?

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3. Whether the Decree Holder has filed any application for reopening Execution Petition as directed by the Hon'ble High Court of Karnataka as per order dated:1701-2014 in WP No.49525/2013?

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4. Whether the property in respect of which the possession was delivered as per the report of the Bailiff on 11-09-2013 in pursuance of the delivery warrant issued by Court is the site No.474 and the JDR no.2 has unauthorizedly again taken possession of the same property?

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5. Whether the identity of the property sought to be delivered to the Decree Holder is established as site No.474

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or the identification and location of the said property has to be done before obtaining the delivery of possession?

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6. What order?”

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The Executing court answered Point No.1 in favour of the respondent – decree holder by coming to the conclusion that the respondent - Smt.Kanthamma was very much alive and the contention of the petitioner that she had expired cannot be accepted, particularly when she was physically present and had produced her Aadhar card etc., to establish her identity. The said finding recorded by the Executing court on Point No.1 is correct and proper and does not warrant interference in the present petition. So also, the Executing court rejected the contention of the petitioner and answered Point No.2 against him by holding that the execution proceedings were maintainable by noticing that all the defendants in O.S.No.6699/1992 (RFA No.887/2003) had been arrayed as parties to the execution proceedings. The said finding recorded by the Executing court is also in conformity with the material on record and does not warrant interference in the present petition. Similarly, while dealing with Point No.3, the Executing Court came to the correct conclusion that the instant application I.A.No.2 filed by the respondent – decree holder was in

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consonance / conformity with the liberty granted by this Court in W.P.No.49525/2013 as can be seen from the said order and the application filed by the respondent. Under these circumstances, even this contention of the petitioner was rightly rejected by the Executing court.

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Insofar as Point Nos. 4 and 5 were concerned, the Executing court took note of all earlier proceedings between the parties including orders passed by this Court in RFA 887/2003, MFA 9900/2013 and CRP 337/2014 as well as W.P.No.49525/2013 and came to the correct conclusion that the said orders having been passed against the petitioner – Judgment debtor and in favour of the respondent – decree holder in relation to the suit schedule property had attained finality and become conclusive and binding upon the petitioner. While arriving at the said conclusion, the Executing Court held as under:-

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“18. The perusal of the above orders and also the materials on record would clearly indicate that the JDR no.2 and the DHR claim the same property. It is not the case of the JDR no.2 that there is overlapping of the sites or that his site no.520 is adjacent to the site no.474.

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19. It is not the case of the Judgment Debtor that the property the possession of which is delivered and possession was taken is the site No.520. He has not

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challenged the execution of the delivery warrant and handing over of the possession. The JDR no.2 is also silent as to whether the possession of the property through the delivery warrant was taken from him or not.

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20. It is clearly held in all the proceedings in O.S.No.6699/1992, RFA No.887/2003 that the site No.474 and Site No.520 are different and there are no overlapping and sites are not adjacent. Therefore it is for the Judgment Debtor to 23 Ex..No.1342//2013 identify his property No.520. Hence the order in O.S.No.190/2020 will be of no help to the JDR no.2 as the same is passed in respect of the site no.520.

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21. It is established that the property of which the possession was delivered as per the report of the bailiff is the site No.474. The Judgment Debtor No.2 has conveniently kept quiet regarding the due execution of the delivery warrant in favour of the DHR. It is not his case that the delivery warrant was not executed and the DHR was not put in possession of the property as per the report of the bailiff. The report of the bailiff shows that the persons in possession of the said property had voluntarily surrendered the possession of the property and the DHR was put in possession of the said property. The JDR No.2 has failed to explain as to which is the property which was delivered to the DHR when he is not disputing the execution of the delivery warrant.

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22. In the Objections in para-7 the Judgment Debtor has stated that his site bearing No.520 consists of two shops, in which he is carrying the business under name 'Venky Biriyani House' and now said business is closed and he is

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carrying on the business under the name and style 'Mahalakshmi Poly packs' in another shop carrying on the business in the name and style 'Asha Pork Stall and Fry'. The report of the Bailiff and the mahazar also shows that the description of the property tallied with the description given in the schedule to the delivery warrant. The description of the property in the delivery warrant as per the schedule to the decree in RFA No.887/2003. The mahazar also shows that there are three shops and one of the shop is by name Asha Pork Shop. The persons in occupation of the said shops had voluntarily vacated his belongings in the property and has handed over the property. The Bailiff has reported that the property which was handed over to the Decree Holder is the property which was described in the schedule to the decree in RFA No.887/2003.

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23. The Judgment Debtor has not challenged the Judgment in MFA No.9900/2013 and the Order in CRP.No.337/20014 and the same have been final. It is established that both the decree holder and the JDR are claiming the same property and there is no overlapping or the properties claimed by both the parties are not adjacent to each other and also no question of encroachment is involved. There is no necessity to again locate the property as the identity of the property which is claimed by the DHR is established.

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24. Hence this Court concludes as follows.

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(i) It is established that the property which is handed over to the Decree Holder as per report of the Bailiff is the property within the boundaries as shown in the decree to the RFA No.887/2003.

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(ii) The Judgment debtor is claiming the same property as the property No.520. It is not the case of the Judgment Debtor that the properties are over lapping or the portion of the property belonging to him is in the property claimed by the Decree Holder. Hence this Court is satisfied that the Judgment Debtor and Decree Holder are claiming the same property as their property.

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(iii) The records show that the property which is delivered to the Decree Holder as per report of the Bailiff is as per the description shown in RFA No.887/2003.

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(iv) The property in respect of which the possession was delivered as per the report of the Bailiff on 11-09-2013 in pursuance of the delivery warrant issued by Court is the site No.474 and the decree holder was dispossessed from the said property and the JDR no.2 has unauthorizedly again taken possession of the same property.

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(v) The identity of the property sought to be delivered to the Decree Holder is established as site No.474 and there is no necessity to again identify and locate the said property.

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Hence the Point No.4 is answered in the Affirmative and Point No.5 as above.”

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As stated supra, it is an undisputed fact that RFA No. 887/2003 filed by the respondent – decree holder for declaration, possession and permanent injunction was allowed by this Court and the same was put into execution proceedings, in which, the Executing court directed issuance of delivery warrant vide order

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dated 03.08.2013 and posted the matter to 16.09.2013. In pursuance of the same, the court Bailiff submitted a report dated 21.08.2013 stating that there was a lock affixed to the door of the suit schedule property. The respondent – decree holder sought advancement of the case from 16.09.2013 to 29.08.2013 and filed an application I.A.No.1 under Order 21 Rule 35 CPC for a direction to the jurisdictional police to provide police protection to facilitate breaking open the lock affixed to the door of the suit schedule property and to deliver possession of the same to the respondent – decree holder. The Executing court allowed the said application vide order dated 29.08.2013 and directed re-issuance of delivery warrant against the Judgment debtor with permission to break open the lock and also directed the jurisdictional police to provide adequate protection in executing the delivery warrant by breaking open the lock. The said order dated 29.08.2013 was not challenged by the petitioner – judgment debtor. Pursuant to the said order, delivery warrant was executed on 11.09.2013, and the Bailiff submitted a report dated 12.09.2013 in this regard to the Executing Court. On 16.09.2013, the Executing court accepted the said Report and Mahazar of the Bailiff and closed the execution proceedings. It is pertinent to note that neither the said Mahazar

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and report of the Bailiff nor the order of the Executing Court was challenged by the petitioner – Judgment debtor. Under these circumstances, it is clear that the respondent had taken over actual and physical possession of the suit schedule property from the petitioner - judgment debtor by following due process of law in the instant execution proceedings and consequently, in the light of the subsequent illegal and high-handed dispossession of the respondent – Decree holder from the suit schedule property by the petitioner – Judgment debtor coupled with the liberty granted in favour of the respondent by this Court in W.P.No.49525/2013 to seek revival / reopening of the execution proceedings and seek restoration of possession, the Executing Court was fully justified in answering Point Nos. 4 and 5 in favour of the respondent – decree holder by negativing the claim of the petitioner – Judgment debtor.

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As stated earlier in O.S.No.26429/2013 filed by the petitioner – Judgment debtor against the respondent, the trial Court vacated the ex-parte order of status-quo and refused to grant temporary injunction in favour of the petitioner, who approached this Court in MFA No.9900/2013, which was dismissed vide final order dated 16.12.2013 by holding as under:

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“3. Plaintiff herein has filed a suit for perpetual injunction against defendant contending interalia that he is in possession and enjoyment of site bearing No.474 morefully described under plaint schedule and on account of defendant attempting to interference with his alleged possession and enjoyment an application under IA No.1/2013 was filed along with plaint seeking for temporary injunction and trial Court initially granted an order of statusquo on 17.09.2013, which was subsequently vacated is being contended by learned counsel for appellant on the ground that this court has not considered the claim of plaintiff in proper perspective and as such he contends that appeal be allowed by allowing I.A.No.1/2013 and dismissing I.A.No.3/2013. He would further elaborate his submission by contending this Court has clearly held in RFA No.887/2003 that site bearing Nos.520 (subject matter of suit) and site No.474 belonging to defendant are separate and independent and having held so, there was no impediment in law or facts for granting an order of temporary injunction and by virtue of status quo order granted earlier having been vacated would put the plaintiff to irreparable loss and injury and defendant would acquire possession forcibly. Hence, on these grounds he seeks for allowing the appeal.

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4. Having heard the learned Advocate appearing for plaintiff and on perusal of impugned order, as well as plaint averments and written statement filed by defendants 1 and 2, it would clearly indicate that present defendants had filed a suit in O.S.No.6699/1992 against plaintiff in respect of site bearing No.474. Said suit came to be dismissed on

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19.04.2013 and matter was perused by defendant therein i.e., first defendant herein before this Court in RFA No.887/2003 and said appeal came to be allowed by decreeing the suit of first defendant vide judgment and decree dated 21.01.2013. Undisputedly, said judgment of this Court has reached finality. In order to enjoy the fruits of decree first defendant filed an execution petition in Execution Petition No.1342/2013 and through process of Court took possession of suit schedule property therein i.e., site No.474 (as described in O.S.No.6699/1992).

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5. Trial court examining the case of plaintiff with regard to prima facie case, sufficiency of grounds for vacating status-quo order, irreparable loss of injury that may be caused to either of the parties as also balance of convenience, found that defendant has a prima facie case and balance of convenience is in favour of 1st defendant and by virtue of granting an order of temporary injunction, it is 1st defendant who will be put to irreparable loss and injury and also held that plaintiff in the instant case has not come with the clean hands and there was suppression of facts rejected the prayer for temporary injunction.

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6. In the background of findings recorded by trial Court let me examine as to whether contention raised by Sri Erappa Reddy, learned counsel appearing for appellant, merits acceptance or otherwise.

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7. A perusal of plaint in the present suit would clearly indicate that there is no whisper with regard to earlier suit O.S.6699/92 having been filed by 1^st defendant against plaintiff and same culminating in execution petition having been filed by first defendant in respect of site bearing

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No.474 and she having taken possession of said site. It is no doubt true that this Court while disposing of RFA No.887/2003 on 21.01.2013 has observed that appellant therein i.e., 1^st defendant herein has no right, title or interest over the site bearing No.520 (present suit schedule property) and it is a different property altogether.

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8. Under the guise of site No.520 belonging to him (plaintiff herein), an order of status-quo was obtained on 17.09.2013 by plaintiff. It is the specific contention of defendant that after she recovered possession of site No.474 through process of Court in Execution Petition No.1342/2013, plaintiff herein obtained an order of statusquo and has put a lock to the property bearing site No.474. This conduct of plaintiff itself would clearly indicate that under the guise of claiming a right over site No.520 plaintiff is attempting to interfere with the possession of 1^st defendant over property bearing No.474. Nothing prevented plaintiff to disclose as to whether he was having two properties as claimed by him i.e., site No.520 and another site No.474 and he ought to have disclosed this in the earlier suit as well as in the present suit. The pleadings on this aspect is silent. In fact in the present suit plaintiff has not whispered anything with regard to Execution Petition No.1342/2013 or 1^st defendant herein having taken over possession from plaintiff of property No.474 is concerned. These facts have been suppressed by plaintiff. It is because of this reason trial Court has held that one of the primary consideration for grant of temporary injunction is fairness and good conduct of plaintiff and he also seeks the aid of Court should come with clean hands and he who

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is guilty of suppression of fact, would not be entitled to an equitable relief of temporary injunction.

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9. It also requires to be noticed that in RFA No.887/2003 this Court has made it very clear that site No.520 is not shown as adjoining to suit property of first defendant i.e., site No.474. Admittedly there was no alleged interference by first defendant in respect of site No.520, which even according to plaintiff is very far away from site No.474. A plea is now put forward by the plaintiff that under the guise of first defendant being the owner of site No.474, is attempting to interfere with site No.520, requires to be looked into with utmost circumspection. It is obvious that first defendant herein after evicting plaintiff from site No.474 through due process of Court, has taken possession and in order to oust first defendant from her possession over site No.474 plaintiff is attempting to lay his claim under the guise of he being owner of Site No.520 and by suppressing these facts has tried to obtain an injunction in respect of site No.520 and as such, trial Court has rightly observed that plaintiff cannot be held to have any prima facie case in his favour. Plaintiff has to establish the area, location, identity and demarcation of site No.520 from the records produced which prima facie he has not been able to demonstrate before the trial court as well as before this court at the time of considering his prayer for temporary injunction. As such, I am of the view that trial Court has rightly refused to grant an order of temporary injunction in favour of plaintiff. Trial court has observed as under:

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“Coming to the facts involved in this case, no site numbers are shown to the West and to the North of site No.520. No layout map demarcating Site No.520 in Sy.Nos.41 and 42 is produced by the plaintiff. Admittedly, the alleged site is a granted site in favour of Kempaiah. So, provisions of Karnataka Land Grant Rules, 1969 are applicable to the facts of this case. Sec.13(1) of Karnataka Land Grant Rules, 1969 makes it mandatory that: “If any Government authority grants and allots land, there should be survey map demarcating the boundaries before handing over the possession”. So, coming to the facts involved in this case, it appears to me that, the plaintiff has failed to produce such survey map. So, at this stage, without compliance of Sec.13 of Karnataka Land Grant Rules, 1969, case of the plaintiff is not believable.”

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10. Trial Court having examined the rival contentions and also scrutinizing the documents produced by the parties, has held that under the guise of plaintiff intending to obtain an order of injunction has tried to lock the premises of 1st defendant, which she had recovered in Execution Petition No.1342/2013 from none else other than the plaintiff herein. It is because of these reasons trial Court has rightly held that there is neither prima facie case nor balance of convenience in favour of plaintiff.

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11. As rightly held by trial Court if an order of injunction is granted in favour of plaintiff under the guise of said order plaintiff is likely to disturb the possession of 1st defendant and as such it would cause irreparable loss to the 1st defendant, which would be much more than what plaintiff may suffer. Hence, I do not find any infirmity in the order

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passed by trial Court. There is no merit in this appeal and is liable to be dismissed and it is hereby dismissed.

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12. It is needless to state that any observation made by trial Court on I.A.Nos.1/2013 and 2/2013 during the course of order is or by this court only for the purposes of considering the prayer for grant of temporary injunction and trial Court at the time of adjudicating the suit on merits shall examine the same after the parties having tendered their evidence without being influenced by any observations made by this Court or by it earlier.

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13. For the reasons aforestated following order is passed:

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i. Appeal is hereby dismissed.

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ii. Order dated 22.11.2013 passed by XIII Addl. City Civil Judge, Bangalore, in O.S.No.26429/2013 is hereby affirmed.

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iii. No order as to costs.

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As can be seen from this Court’s order, the claim /

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contentions of the petitioner have been negatived and the contentions of the respondent have been upheld by this Court and the said order having attained finality, has become conclusive and binding upon the petitioner. In fact, this Court has recorded a categorical finding that the petitioner was guilty of suppression of material facts and had not come to the Court with clean hands and was not entitled to any relief as sought in the said appeal preferred

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by him. The Executing court has rightly placed reliance upon the said order of this Court in MFA No.9900/2013 for the purpose of allowing I.A.No.2 filed by the respondent.

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The Executing Court also placed reliance upon the order dated 10.12.2019 passed by this Court in CRP No.337/2014 by reiterating the findings recorded in RFA No.887/2003 in order to uphold the claim of the respondent by holding as under:-

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“20. It is not in dispute that after the commissioner submitted his report, taking into account the report of the commissioner which was part of the record of this Court in the aforesaid RFA No.887/2003, despite the dispute regarding the identity of the suit schedule property as contended by both sides in the commissioner’s report, this Court thought it fit and proper to decree the suit for declaration, possession and mandatory injunction filed by the petitioners. In other words, this Court in R.F.A.No. 887/2003, while granting a decree for declaration, possession and mandatory injunction has clearly held that the petitioner herein mere entitled to own and possess the disputed property identified by the Court commissioner as the suit schedule property. Pursuant to the same, the petitioners herein took possession of the property by following due process of law by executing the decree.”

¶124

A perusal of the said order passed by this Court will also indicate that the Executing Court has correctly placed reliance

¶125

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upon the said order passed in CRP No.337/2014 for the purpose of upholding the claim of the respondent and rejecting the contentions / claims of the petitioner and as such, even this finding recorded by the Executing Court in the impugned order cannot be said to be contrary to the material on record warranting interference in the present petition.

¶127

The contention urged on behalf of the petitioner that the impugned order is contrary to the order passed by this Court in W.P.No.49525/2013 cannot be accepted; in this context, it is relevant to extract a portion of the said order, which reads as under:-

¶128

“7. However, what is necessary to be taken into consideration is that in so far as the right claimed by the petitioner in respect of Site No.474, which has attained finality in RFA No.887/2003, the petitioner had instituted the execution No.1342/2013. From the records available, it is seen that the delivery warrant had been issued in the said case and the delivery of possession in favour of the petitioner has been recorded on 11.09.2013 and the execution was closed. Since at this juncture, the petitioner contends that the fourth respondent has thereafter assumed possession of the said property and since I have already noticed that the contention of the petitioner that there is complicity of police in handing back possession, has not been established at this

¶129

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juncture, all that can be taken note is that though the Executing Court has recorded satisfaction of the decree in Ex.P.No.1342/2013 it would have to be declared that the same has not attained finality in as much as the manner of possession is still not clear as the petitioner as well as the fourth respondent are still claiming to be in possession of the property. Certainly, in such a situation, the petitioner cannot be expected to once over again seek for possession by instituting a suit. I am of the said opinion for the reason, since this Court has already declared the right in favour of the petitioner in Site No.474 in RFA No.887/2003 and since the fourth respondent claims certain dispute with regard to the identification of the site, the execution of the decree would have to be made by properly identifying the site for which the decree has been granted and that too in the presence of the fourth respondent.

¶132

8. Hence, the prayer as made in the petition to direct the police officers to hand back the possession cannot be considered. However, liberty is reserved to the petitioner to seek restoration of Ex.P. No1342/2013 by bringing it to the notice of the Executing Court that satisfaction as recorded to close the said proceedings is to be recalled and the execution proceedings is to be continued to put the petitioner in possession of the property for which the decree has been granted. Since the property is to be clearly identified and the possession is to be given to the petitioner, the fourth respondent herein who is the judgment debtor in the execution petition is also granted liberty of taking part in the said proceedings. The Executing Court shall thereafter take all

¶133

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steps to execute the decree and put the petitioner in possession of the property for which a decree has been granted in his favour.

¶135

With the said liberty to the petitioner, the petition stands disposed of.”

¶136

As is clear from the said order, this Court has reserved liberty in favour of the respondent to seek restoration of possession by reopening the execution proceedings which had stood closed by the Executing Court on 16.09.2013. The permission granted in favour of the petitioner to participate in the proceedings cannot be construed or treated as permitting the petitioner to re-agitate concluded issues which had attained finality and become binding upon the petitioner in RFA 887/2003, MFA 9900/2013 and CRP 337/2014 referred to supra. Under these circumstances, this contention urged on behalf of the petitioner cannot be accepted.

¶137

Insofar as the contention of the petitioner that he has obtained an order of temporary injunction in O.S.No.190/2020 dated 24.08.2022 against the respondent is concerned, it is relevant to state that the petitioner claims to have filed the said suit by relying upon the observations made by this Court in CRP No.337/2014, wherein it was stated that the order of this Court

¶138

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would not come in the way of the petitioner to agitate his right, if any, under Order 7 Rule 13 CPC, subject to all exceptions. Apart from the fact that the said observations cannot be made the basis by the petitioner to oppose I.A.No.2 filed by the respondent, the petitioner who had filed the aforesaid O.S.No.26429/2013 (out of which, CRP 337/2014 arose) by claiming the suit schedule property, in the subsequent suit in O.S.No.190/2020, petitioner has attempted to circumvent all earlier proceedings and orders by describing the property claimed by him in site No.520 as plaint ‘A’ schedule property and site No.474 as plaint ‘B’ schedule property; interestingly, the interim order dated 24.08.2022 passed in O.S.No.190/2020 is only in respect of plaint ‘A’ schedule property and not in respect of plaint ‘B’ schedule property. Under these circumstances, no reliance can be placed upon the said order of temporary injunction passed in O.S.No.190/2020 by the petitioner in support of his claims / contentions which have been rightly negatived by the Executing court.

¶140

Upon reconsideration, re-evaluation and re-appreciation of the entire material on record, I am of the considered opinion that the impugned order passed by the trial court cannot be said to

¶141

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suffer from any illegality or infirmity nor can the same be said to be capricious or perverse warranting interference by this Court in the present petition in exercise of its jurisdiction under Article 227 of the Constitution of India.

¶144

Accordingly, I do not find any merit in the petition and the same is hereby dismissed.

¶145

Sd/JUDGE

¶146

Srl.

Sri v. Venkatesh v Smt Kanthamma

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Sri v. Venkatesh v Smt Kanthamma

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