Allowed

Sri.Kamalakar Nagappa Deshbhandari v. Prakash Hanumanth Deshbhandari

Karnataka HC14 Oct 2024WP/106795/2019

Case brief

AI extract

What is this about?

This writ petition challenged an order allowing amendment of an execution petition to seek possession. The High Court allowed the petition, quashed the impugned order, and held that the executing court erred as the decree was only for declaration and injunction, barring possession relief.

What did the court decide?

The writ petition is allowed. The order passed on I.A.No.III in Execution Petition No.28/2015 dated 13.11.2018 is set-aside.

Sri.Kamalakar Nagappa Deshbhandari Vs Prakash Hanumanth… — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC-D:14918 WP No. 106795 of 2019

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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WRIT PETITION NO.106795 OF 2019 (GM-CPC)

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BETWEEN:

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SRI KAMALAKAR NAGAPPA DESHBHANDARI, AGE: 71 YEARS, OCC: AGRICULTURAL, R/O: KONALLI, TALUK: KUMTA, DISTRICT: UTTAR KANNADA.

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RAMESH NAGAPPA DESHBHANDARI, AGE: 65 YEARS, OCC: AGRICULTURAL, R/O: KONALLI, TALUK: KUMTA, DISTRICT: UTTAR KANNADA.

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Digitally signed by YASHAVANT NARAYANKAR Location: High Court of Karnataka

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HERAMBA NAGAPPA DESHBHANDARI, AGE: 60 YEARS, OCC: AGRICULTURAL, R/O: KONALLI, TALUK: KUMTA, DISTRICT: UTTAR KANNADA.

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ROHIDAS RAMESH DESHBHANDARI,

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AGE: 41 YEARS, OCC: AGRICULTURAL, R/O: KONALLI, TALUK: KUMTA, DISTRICT: UTTAR KANNADA.

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LOKESH RAMESH DESHBHANDARI, AGE: 38 YEARS, OCC: AGRICULTURAL,

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NC: 2024:KHC-D:14918 WP No. 106795 of 2019

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R/O: KONALLI, TALUK: KUMTA, DISTRICT: UTTAR KANNADA.

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…PETITIONERS

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(BY SRI J. S. SHETTY, ADVOCATE)

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AND:

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PRAKASH HANUMANTH DESHBHANDARI, AGE: 44 YEARS, OCC: AGRICULTURAL, R/O: KONALLI, TALUK: KUMTA, DISTRICT: UTTAR KANNADA.

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…RESPONDENT

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(RESPONDENT IS SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE ORDER DATED 13.11.2018 PASSED ON I.A.NO.3 IN EXECUTION NO.28/2015, BY THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC KUMTA, THE COPY OF WHICH HAS BEEN PRODUCED AT ANNEXURE - A AND ETC.,

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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3 - NC: 2024:KHC-D:14918 WP No. 106795 of 2019

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CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

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The present petition is filed challenging the order dated 13.11.2018 passed on I.A.No.III in Execution Petition No.28/2015 by the Additional Civil Judge and JMFC, Kumta¹ .

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The relevant facts leading to the present petition are that the respondent filed O.S.No.91/2000 for declaration and permanent injunction. The petitioners are arrayed as the defendants in the said suit. The Trial Court by its judgment and decree dated 20.04.2002 decreed the

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suit and ordered as follows:

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“ORDER

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The suit of the plaintiff is hereby decreed.

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It is hereby declared that the plaintiff is the owner in possession of the suit schedule property.

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Defendants, their men, servants, agents or assignees are hereby permanently restrained from

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1 Hereinafter referred to as Trial Court

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NC: 2024:KHC-D:14918 WP No. 106795 of 2019

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interfering with the peaceful possession use and enjoyment of the suit schedule property.

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Parties to bear their own costs.

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Draw decree accordingly.”

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Subsequently, the respondent preferred

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Execution Petition No.28/2015. In the said execution proceedings, the respondent filed I.A.No.III under Order VI Rule 17 read with Section 151 of CPC for amendment of the execution petition to enable the respondent to insert prayer No.6 in the petition. The Executing Court by its order dated 13.11.2018, allowed the said application. Being aggrieved, the present petition is filed.

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Learned counsel, Sri.J.S.Shetty appearing for the petitioner vehemently contends that the suit having been filed for declaration and injunction and respondent/plaintiff not having sought for any relief of possession in the said suit, the Trial Court erred in permitting the respondent/plaintiff to also seek for possession in the execution proceedings. He further

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5 - NC: 2024:KHC-D:14918 WP No. 106795 of 2019

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contends that there is a dispute as to the identity of the property which was the subject matter of the suit and that in the execution proceedings Commissioner has been appointed to identify the property. Hence, he seeks for allowing of the writ petition and granting of the reliefs sought for.

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The respondent is served and unrepresented.

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It is forthcoming that the suit was one for declaration and injunction and the Trial Court in O.S.No.91/2000 has granted the decree for declaration

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and injunction. In the execution proceedings, I.A.No.III was filed for amendment to insert prayer No.6 i.e. seeking for the relief of possession. The Trial Court noticing that the Court Commissioner in its report had stated that the respondents had constructed a house in Survey No.30/4A, has permitted the decree holder to amend the execution petition to include the relief of possession.

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6 - NC: 2024:KHC-D:14918 WP No. 106795 of 2019

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The Executing Court has gravely erred in

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allowing the application inasmuch as the decree having been granted only for declaration and injunction, the Executing Court ought not to have permitted the amendment as sought for in I.A.No.III by allowing the respondent to also seek for possession in the execution proceedings.

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In view of the aforementioned, the order

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passed by the Executing Court is contrary to law and liable to be set aside. Hence, the following:

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ORDER

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a) The writ petition is allowed.

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b) The order dated 13.11.2018 passed on I.A.No.III in Execution Petition No.28/2015 by the Additional Civil Judge and JMFC, Kumta, is set-aside.

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Sd/(C.M. POONACHA) JUDGE

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SH,YAN/CT-ASC/ List No.: 1 Sl No.: 47

Sri.Kamalakar Nagappa Deshbhandari v. Prakash Hanumanth Deshbhandari

Case brief

What is this about?

What did the court decide?

Sri.Kamalakar Nagappa Deshbhandari v. Prakash Hanumanth Deshbhandari

Case brief

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What did the court decide?

What the court decided

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