Allowed

Sri H Ramanjinappa v. Sri M R Anandaram

Karnataka HC23 Aug 2023WP/20523/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing an order rejecting an application for appointing a Court Commissioner to measure alleged land encroachment. The Court held that such appointment is necessary to establish violation of the injunction decree before proceeding with execution measures like arrest or attachment, and does not exceed the decree's scope.

What did the court decide?

Impugned order dated 16.09.2021 rejecting application for Court Commissioner was set aside; application under Order XXVI Rule 9 read with Section 151 CPC allowed.

Sri H Ramanjinappa Vs Sri M R Anandaram — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:30221 WP No.20523 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF AUGUST, 2023 BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.20523 OF 2021 (GM-CPC)

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BETWEEN:

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SRI. H. RAMANJINAPPA S/O LATE HANUMAIAH AGED ABOUT 57 YEARS R/OF. GEJJAGADAHALLY VILLAGE DASANAPURA HOBLI BENGALURU NORTH TALUK BENGALURU DISTRICT-561262.

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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(BY SMT. J. KALADEEPA, ADV., FOR SRI. PATEEL G.S. ADV.,)

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AND:

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…PETITIONER

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SRI. M.R. ANANDARAM S/O LATE M.S. RAMAIAH AGED ABOUT 39 YEARS R/AT GOKUL HOUSE GOKUL, M S RAMAIAH ROAD BENGALURU-560054.

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ALSO AT NAVKIS RESIDENTIAL JUNIOR COLLEGE GEJJAGADAHALLY VILLAGE DASANAPURA HOBLI BENGALURU NORTH TALUK BANGALORE DISTRICT-561262.

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SRI. BALAKRISHNA FATHER NAME NOT KNOWN TO THE PETITIONER

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AGED ABOUT 59 YEARS CIVIL CONTRACTOR C/O M S ANANDARAM NAVKIS RESIDENTIAL JUNIOR COLLEGE GEJJAGADAHALLY VILLAGE DASANAPURA HOBLI BENGALURU NORTH TALUK BANGALORE DISTRICT-561262.

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…RESPONDENTS

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(BY SRI. R. GOPAL, ADV., FOR R1 R2 SERVED)

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THIS W.P. IS FILED UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD 16.09.2021 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, AT NELAMANGALA ON IA FILED UNDER ORDER 26 RULE 9 READ WITH SECTION 151 OF CPC IN EX.NO.10/2013 VIDE ANNX-M. GRANT AN INTERIM ORDER TO STAY THE FURTHER PROCEEDINGS IN EX.NO.10/2013 PENDING ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, AT NELAMANGALA.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is filed under Article 227 of the Constitution of India assailing the order dated 16.09.2021 passed on an interlocutory application filed by the petitioner-decree holder under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 in Ex.No.10/2013 by the Prl. Civil Judge and JMFC, Nelamangala seeking appointment of a Court Commissioner to measure and identify the portion of the encroachment by the judgment debtors. The said application came to be rejected.

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Brief facts giving rise to filing of this petition are that the petitioner filed an application seeking regularization of his unauthorized cultivation of land measuring 2 acres in Sy.No.11 of Gejjagadahally Village, Dasanapura Hobli, Bangalore North Taluk. The said application is pending consideration before the regularization committee. In the meantime, the

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petitioner has filed O.S.No.527/2009 seeking permanent injunction restraining the respondentsdefendants, their henchmen, their agents, etc. from interfering with the peaceful possession and enjoyment of the suit schedule property. The said suit came to be decreed with a direction to the defendants or anybody claiming through them, from interfering with the peaceful possession and enjoyment of the suit schedule property.

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It is averred that the respondents herein have disobeyed the judgment and decree dated 06.01.2011 by encroaching upon the eastern portion of the land in question to the extent of 20 guntas. In this regard, the petitioner has filed a police complaint on 25.10.2012 and thereafter, the petitioner has filed execution petition in Ex.P.No.10/2013 to initiate suitable action against the respondents for disobeying the judgment and decree of permanent injunction. The respondents have entered

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appearance in the execution proceedings and filed objections whereby the respondents have contended that they have not encroached any portion of the land claimed by the petitioner nor disobeyed the judgment and decree. It is further averred that in the said execution proceedings, the petitioner has been examined as PW-1 and certain documents are marked. During the pendency of the execution petition, the petitioner has filed an application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure seeking a prayer to appoint the Assistant Director of Land Records as the Court Commissioner to inspect the suit schedule property in O.S.No.527/2009 according to the boundaries and to measure the portion of the land said to be encroached by the judgment debtors-respondents in the suit schedule property and to report the same to the Execution Court. The said application was considered and rejected by the

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Execution Court by an order dated 16.09.2021. Being aggrieved by the said order, present petition is filed.

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Smt.Kaladeepa, learned counsel appearing for

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the petitioner submits that the impugned order passed by the Execution Court is illegal, contrary to the material on record and liable to be set aside. The Execution Court has failed to appreciate the fact that before taking steps for attachment of the properties of the judgment debtors or for seeking of his arrest as provided under Order XXI Rule 32 of the Code of Civil Procedure, the petitioner is required to prove that the judgment debtors / respondents have encroached 20 guntas of the suit schedule property by violating the injunction granted in O.S.No.527/2009 hence, the appointment of Court Commissioner is necessary to adjudicate the issue involved in the execution. It is submitted that the judgment and decree dated 06.01.2011 passed in the suit has attained finality and

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the respondents have not challenged the said decree. Hence, the Execution Court ought to have allowed the application for appointment of the Court Commissioner to measure the property only with an intention to find out the exact portion of the encroachment on the suit schedule property by the judgment debtors. It is also submitted that the Execution Court has committed a grave error in rejecting the application by incorrectly interpreting the provisions of Order XXI Rule 32 of the Code of Civil Procedure, hence, she seeks to allow the writ petition.

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Per contra, Mr.R.Gopal, learned counsel

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appearing for the respondent No.1 supports the impugned order or Execution Court and submits that the petitioner himself is an encroacher of the suit schedule property. The right in favour of the petitioner is not yet adjudicated by the regularization committee. It is submitted that the subject land is within a radius of

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18 kms from the limits of Bengaluru city and hence, the petitioner's claim for grant of unauthorized occupation is barred under the provisions of the Karnataka Land Revenue Act, 1964, hence, prayer to appoint Court Commissioner is futile exercise. It is further submitted that the exercise of power of appointment of Court Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure is a discretionary power of the Execution Court and the said discretionary power has rightly been exercised by the Execution Court by rejecting the application which does not call for any interference in the present petition. He, therefore, seeks to dismiss the writ petition.

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I have heard the learned counsel for the petitioner, learned counsel for the respondent and have perused the material on record. It is not in dispute that the petitioner has filed O.S.No.527/2009, the said suit has been decreed with a direction to the defendants /

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respondents herein not to interfere with the peaceful possession and enjoyment of the suit schedule property of the petitioner. It is also not in dispute that the petitioner has filed execution petition in Ex.No.10/2013 for execution of the judgment and decree passed in O.S.No.527/2009. During the pendency of the said proceedings, the petitioner has filed an application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure seeking a prayer to appoint the Assistant Director of Land Records, Bengaluru as the Court Commissioner to inspect the spot of the suit schedule property in O.S.No.527/2009 according to its boundaries and measure the portion of the land encroached by the judgment debtors in the suit schedule property and report the same to the Execution Court.

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On perusal of the averments accompanying the

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application, it is evident that the petitioner has made a

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specific assertion that the respondents have encroached 20 guntas of the suit schedule property by violating the judgment and decree granted in his favour. The judgment and decree of permanent injunction can be executed as per Order XXI Rule 32 of the CPC i.e., arrest of the judgment debtors and by attachment of his properties. In my considered view unless the Execution Court decides the issue as to whether the judgment debtors have violated the judgment and decree dated 06.01.2011 passed in O.S.No.527/2009 by ascertaining whether there is any encroachment as alleged by the decree holder, it would be difficult for the Execution Court to issue an order of arrest of the judgment debtors or for an order for attachment of their properties. If the Court Commissioner's report is available before the Execution Court about the alleged encroachment by the judgment debtors in addition to other evidence available in the proceedings it would be

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appropriate for the execution Court to pass further orders as per Order XXI Rule 9 of CPC.

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The finding of the Execution Court that the

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decree holder instead of seeking for execution of the decree of permanent injunction of its violation, has sought for removal of illegal construction allegedly put up by the judgment debtors. In my considered view, the aforesaid finding of the Execution Court has no relevance for consideration of the present application seeking for appointment of Court Commissioner. It is settled position of law that the petitioner-decree holder cannot seek the execution of a decree more than what has been granted in O.S.No.527/2009. Hence, in my considered view the appointment of Court Commissioner is necessary only to an extent of ascertaining the factual assertion of the decree holder of alleged violation of the judgment and decree in question and not for removal of any alleged construction, as there

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is no such judgment and decree in favour of the petitioner-decree holder. Hence, the finding of the Execution Court is contrary to law and facts on record, hence, requires interference by this Court.

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The petitioner who is a decree holder, before taking steps for arrest of the judgment debtors or attachment of the properties of the judgment debtors, is required to establish before the Execution Court that there is a violation of the judgment and decree in the suit by establishing the fact that there is encroachment of 20 guntas of the land by the respondent as claimed. Unless the petitioner is able to establish that the judgment debtors have encroached 20 guntas of the land as alleged by the petitioner - decree holder, the petitioner would not be entitled to seek a prayer for arrest of the judgment debtors or attachment of the properties of the judgment debtors.

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I am of the considered view that mere

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appointment of the Court Commissioner to find out whether there is any encroachment as claimed by the petitioner, itself would not amount into travelling behind the decree granted by the Civil Court and amounts to seeking prayer for removal of illegal construction put up by the judgment debtors. In my considered opinion, the Execution Court has committed

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a grave error in rejecting the application without considering Order XXI Rule 32 of the Code of Civil Procedure in its proper perspective under the facts and circumstances of the case. Mere appointment of the Court Commissioner to measure the alleged encroachment of the land by the judgment debtors would not enlarge the scope of the judgment and decree in O.S.No.527/2009. It is only an aid to execute the judgment and decree passed in the suit.

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For the aforementioned reasons, the writ petition is allowed . The impugned order dated 16.09.2021 passed in Ex.No.10/2013 is set aside. The application filed by the decree holder under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure is allowed. It is made clear that the finding recorded by this Court is only for the purpose of deciding the application in question and all the contentions urged by the parties are kept open.

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Sd/JUDGE

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Sri H Ramanjinappa v. Sri M R Anandaram

Case brief

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Sri H Ramanjinappa v. Sri M R Anandaram

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