Remanded

K.N. Ramaiah v. Mrs. Violet Shiromani

Karnataka HC6 Jun 2023WP/21477/2016

Case brief

AI extract

What is this about?

High Court set aside the order of the Executing Court dismissing an execution petition for failure to establish violation of a decree, directing the matter to be restored and expedited.

What did the court decide?

Set aside the order dated 16.12.2015 passed by XIX Addl. City Civil Judge dismissing the execution petition and restore the execution case to the file for further proceedings.

K.N. Ramaiah Vs Mrs. Violet Shiromani — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:19202 WP No. 21477 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF JUNE, 2023 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI WRIT PETITION NO. 21477 OF 2016 (GM-CPC)

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BETWEEN:

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K.N. RAMAIAH, SINCE DEAD BY L.R. MRS. K.R. SARASWATHAMMA, D/O. K.N. RAMAIAH, AGED ABOUT 56 YEARS, R/AT K.T. VENKATAPPA BUILDINGS, OLD MADRAS ROAD, BANGALORE-560 036.

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…PETITIONER

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[BY SRI. A.V. GANGADHARAPPA, ADVOCATE (PH)]

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AND:

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MRS. VIOLET SHIROMANI, SINCE DEAD BY L.R. MR. PRASANNA KUMAR, S/O. MUNISWAMY, MAJOR, R/AT BEHIND KOTE KODANDARAMA SWAMY TEMPLE, NEAR SARVODAYA SCHOOL, K.R. PURAM, BANGALORE-560 036.

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Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

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…RESPONDENT

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(RESPONDENT SERVED AND UNREPRESENTED) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN EXE.NO.762/97 ON THE FILE OF 19^TH ADDL. CITY CIVIL JUDGE, BANGALORE PERUSE THE SAME, QUASH THE ORDER DATED 16.12.2015 PASSED IN EXEC.NO.762/97 ON THE FILE OF 19^TH ADDL. CITY CIVIL JUDGE, BANGALORE ANNEXURE-G AND ALLOW THE APPLICATION FOR DEMOLITION ANNEXURE-D AND DISPOSE-OFF THE MATTER ON MERITS AND ACCORDING TO LAW.

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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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NC: 2023:KHC:19202 WP No. 21477 of 2016

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ORDER

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Challenging order dated 16.12.2015 passed by XIX Addl.

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City Civil Judge (CCH-18) Bengaluru, (Annexure-G) in Ex.case no.762/1997, this writ petition is filed.

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Sri.A.V. Gangadharappa, learned counsel for petitioner submitted that Ex.Case no.762/1997 was filed by petitioner herein (for short 'D.Hr.') for executing decree dated 18.04.1979 in O.S.no.678/1973, granting decree of declaration, mandatory injunction and perpetual injunction against respondent ('J.Dr.' for short) insofar as site no.305 measuring 33 ft. East to West and 83 ft. North to South marked with letter 'ICDE' in plaint sketch.

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Execution petition was opposed by J.Dr. by filing objections contending that petition filed on 21.07.1997 was barred by limitation. It was further contended that property against which decree was sought to be executed was not suit property. Thereafter decree holder examined lone witness and got marked Exs.P1 to P5. On consideration, Executing Court proceeded to pass impugned order dismissing petition on

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NC: 2023:KHC:19202 WP No. 21477 of 2016

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ground that petitioner had failed to establish violation of decree. Aggrieved thereby, this writ petition was filed.

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Learned counsel for petitioner submitted that insofar as limitation, Court had earlier passed order on 31.07.2007 upholding contention. Said order was challenged in W.P.no.6453/2008. It was allowed on 04.08.2010 holding that insofar as decree for perpetual injunction, Execution petition would be within limitation and could continue. Thereafter, petitioner produced copy of police complaint given by petitioner against J.Dr. about encroachment subsequent to passing of decree. Further, photographs were produced to demonstrate that violation subsisted. It was submitted that suggestions made during cross-examination of petitioner by J.Dr. established that encroachment was after passing of decree. Therefore dismissal of Execution Case on said reasons was unsustainable. Hence, sought for allowing writ petition.

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Heard learned counsel for petitioner and perused writ petition record.

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J.Dr. is served unrepresented. Since matter is of year 2016, it was heard and taken up for disposal.

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NC: 2023:KHC:19202 WP No. 21477 of 2016

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From submissions, it is clear that execution petition was within limitation as held in W.P.no.6453/2008 insofar as decree for perpetual injunction. Only subsisting objection was that property against which decree was sought to be executed was different from that of suit property. Therefore, D.Hr. is required to establish that encroachment by J.Dr. and also it was after passing of decree.

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Further, PW.1, (husband of legal representative of original D.Hr.) stated that original decree holder was in possession of suit property marked with letter 'ICDE' bearing house list no.305. It was stated that due to negligence on part of legal representatives of D.Hr., J.Dr. encroached upon suit property and in disregard/violation of decree, put up construction. In that regard police complaint was filed against J.Dr. Copies of police complaint - Ex.P.1 and photographs of property shown with letters 'ICDE' in plaint sketch were marked as Exs.P.2 to P.5.

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In fact, during cross-examination, a suggestion was made by J.Dr. that encroachment as stated by PW.1 in portion shown as 'ICDE' in plaint sketch. Subsequent suggestions are that there was no such property and about numbers of J.Dr.

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NC: 2023:KHC:19202 WP No. 21477 of 2016

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since was residing in neighbourhood not vindicate whether encroachment was before or after decree. Fact that J.Dr. did

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not enter witness box, ought to have weighed in favour of petitioner.

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But observation of Executing Court that except producing police complaint and photographs, petitioner did not place adequate material before it as reason for dismissal of Execution Case without considering fact that petitioner had obtained decree after five decades ago, would be unsustainable and liable to be set-aside.

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Hence, Writ petition is disposed of, setting aside impugned order dated 16.12.2015 passed by XIX Addl. City Civil Judge (CCH-18) Bengaluru, (Annexure-G) in Ex.case no.762/1997 and restoring Execution Case to file.

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Liberty is reserved to petitioner to lead further evidence.

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Since execution petition arises out of decree passed in suit of year 1973, it would be appropriate for this Court to direct Executing Court to expedite matter and trial Court to proceed with matter after service of notice to J.Dr.

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Parties are directed to cooperate for early disposal.

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6 - NC: 2023:KHC:19202 WP No. 21477 of 2016

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Petitioner to appear before Executing Court on

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26.06.2023.

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Registry to transmit records forthwith.

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Sd/JUDGE

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Psg*

K.N. Ramaiah v. Mrs. Violet Shiromani

Case brief

What is this about?

What did the court decide?

K.N. Ramaiah v. Mrs. Violet Shiromani

Case brief

What is this about?

What did the court decide?

What the court decided

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