In a writ petition under Article 227, the High Court of Karnataka dismissed the petition challenging an order staying the execution of a decree and directing forest officers to manage cut eucalyptus trees, finding no illegality warranting interference.
Writ petition dismissed; rival contentions regarding eucalyptus trees kept open.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:10255 WP No. 2747 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 2747 OF 2024 (GM-CPC)
BETWEEN:
BOTH ARE RESIDING AT NO. 86 SONNEGOWDA COMPOUND, NAGASHETTYHALLI, SANJAYANAGARA POST, BENGALURU-560094.
…PETITIONERS
(BY SRI. KRISHNAMURTHY M.R., ADVOCATE)
Digitally signed by V MANJUSHA BAI
Location: High Court of Karnataka
AND:
BOTH ARE R/AT KOGANAHALLI VILLAGE, DODDABALAVANGALA HOBLI, DODABALLAPURA TALUK, BENGALURU RURAL DISTRICT-561203.
…RESPONDENTS
NC: 2024:KHC:10255 WP No. 2747 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE LEARNED SR. CIVIL JUDGE AND JMFC, DODDABALLAPURA IN RA NO. 6/23 DATED 18.12.2023 PASSED ON IA 1 PRODUCED AT ANNEXURE-K AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition by the respondents in R.A.No.6/2023 is directed against the impugned order dated 18.12.2023 passed by the Senior Civil Judge & JMFC, Doddaballapura, whereby the application - I.A.No.1 filed by the respondents - appellants under Order 41 Rule 5(1) was allowed by the First Appellate Court, which issued certain directions in relation to the Eucalyptus trees.
application I.A.No.1 for stay under Order 41 Rule 5(1) CPC. The said application having been opposed by the petitioners, the First Appellate Court proceeded to pass the impugned order allowing I.A.No.1. In addition to allowing I.A.No.1, the First Appellate Court took into account that the petitioners had cut the standing eucalyptus trees which were laying in the suit schedule property and in order to prevent any further loss / damage to be caused to the said trees, the First Appellate Court issued certain directions in relation to sale of the said trees by the Forest department, which
was also directed to deposit the sale proceeds before the First Appellate Court. While arriving the said conclusion, the First Appellate Court held as under:-
REASONS
1. Point No.1 and 2:
The matter in dispute in these 2 point is the stay of execution operation of the judgment under appeal in this appeal more precisely judgment and decree in OS No.301/2022 dated 13.03.2023 and what is the just orders to protect the interest of parties in a civil litigation in respect of the cut eucalyptus trees laying on the suit properly.
NC: 2024:KHC:10255 WP No. 2747 of 2024
At the first stroke I would deal with the powers of appellant Court under order 41 rule 5(1) and its scope and ambit. Order 41 rule 5(3) of CPC is the heart of the provision under 41 rule 5(1 and 2). What it contemplates is that what are the conditions and parameter for granting the stay of execution and operation of decree either by appellant Court or by the trial Court under order 41 rule 5(1 and 2) as the case may be. Therefore, for better under standing of law relevant for consideration present application at IA No.1 order 41 rule 5(3) is extracted as under:
"Order 41 rule 5(3) - no orders for stay of execution shall be made under sub-rule 1 or sub-rule 2 unless the Court making it is satisfied.
(a) That substantial law may result to the party applying for stay of execution un less the order is made.
(b) That the application as been made without un reasonable delay: And
(c) The security has been given by the applicant for due performance of such decree or orders as may ultimately the binding upon him".
Now keeping in mind the parameters contemplated him order 41 rule 5(3) the present IA No. 1 as to be considered. The IA No. 1 order 41 rule 5 (1 or 2) shall have to be considered in the touch stone of order 41 rule 5(3). As per order 41 rule 3(b) the application under order 41 rule 5(1) shall be made without any un reasonable delay. In the present case in hand the judgment is passed on 13.03.2023
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the copies are furnished on 31.03.2023. The limitation of 30 days for filing appeal before this Court will conclude on 31.04.2023. The present appeal is filed on 31.03.2023 that is appeal is filed within limitation and without any un reasonable delay. Therefore, the appellant has satisfied order 41 rule 5 (3).
Now coming to order 41 rule 5 (3a) of CPC admittedly the decree under appeal dated 13.03.2023 in OS No.301/2022 is an exparte decree. Admittedly the plaintiff and defendants were having knowledge of the fact of pending OS No. 154/2013 for trial before this Court on trial side. Inspite of the respondents have obtained exparte decree. The respondent have made an attempt to execute exparte decree under appeal in OS No.301/2022. Admittedly the decree in OS No.301/2022 is decree for permanent injunction. Admittedly the respondents who were plaintiff in OS No.301/2022 have not filed execution petition under order 21 rule 32 for execution of decree for permanent injunction. But facts remains that the plaintiffs have obtained the police protection order by virtue of order in WP No.20434/2023 GM (Police). As per the circular of director general of police dated 14.11.2018. There after the matter is hanging before the police by virtue the exparte stay passed by this Court for this IA No.1 dated 01.04.2023. Now the respondent make contained that the Court did not had right to pass exparte stay orders. Admittedly the respondents have not larger the caveat anticipating this appeal by the appellants. Order 41 rule 5(4) empower to this Court to make an exparte stay of execution pending hearing of the
NC: 2024:KHC:10255 WP No. 2747 of 2024
application. For better under standing order 41 rule 5 (4) is extracted as under "[ subject to the provision of sub-rule 3], the Court may make an exparte order for stay of execution pending hearing of the application".
The exception to this rule under 41 rule 5(4) is section 141-a of CPC for larging caveat by the respondents. Admittedly the respondent have not larged caveat in anticipation of this appeal by the appellants. Therefore, the powers of this Court passed exparte stay orders dated 01.04.2023 is under order 41 rule 5(4) of CPC. In the present case the appellant has satisfied the provision of order 41 rule 5(a and b). The appellant has right of appeal against the exparte decree under appeal. Such being the facts if the stay orders are not granted the respondent plaintiff have admittedly cut down the eucalyptus tree standing on the suit properties. This dispute of cutting the standing of the trees and sale of same and reached the police station and Hon'ble High Court of Karnataka with filing the execution under order 21 rule 32 of CPC for execution of decree in OS No.301/2022. The stay orders are not granted and pendency of the appeal the decree is executed either way either by process of Court or by approaching the police for police protection in civil litigation. Then the right of appeal of the appellant will be frustrated and defeated.
Learned advocate for respondent has submitted that this Court is pleased to reject application filed by Appellant U/o 39 rule 1 and 2 in OS No.154/2013. So also there are material admission in the cross examination of PW1 in OS No.154/2013 the said materials are not relevant for
NC: 2024:KHC:10255 WP No. 2747 of 2024
consideration under the IA No.1. Under order 39 rule 1 and 2 has nothing to do with the order U/o 41 rule 5(1) of CPC.
Now coming to the matter of the cutting, the cut eucalyptus tree laying on the suit property. Admittedly the defendant who are respondent in this appeal have cut down the standing exculpate tree in pendency of this appeal and under the execution of the decree i OS No.301/2022. This fact is not a dispute the photograph and CD's are produced by the both side by hearing IA No.1. Now It is admitted facts that the cut stems of eucalyptus on laying on the suit land without sale due to the pending litigation and stay orders for in this appeal dated 01.04.2023. The defendants have submitted they have sold the said eucalyptus wood to wood purchaser at Rs.80,000/-. The appellant offered purchased the same at Rs.1,00,000/-. The respondent have refused the accept the offer of the appellant. Admittedly no notice was issued by the Tahasildar either to the appellant or respondent for cutting down eucalyptus trees as usually it is issued to protect the ground level water. The decree under execution is to restrain the defendant from interfering with possession of enjoyment plaintiffs over suit property. The plaintiff respondent have not obtained any permission from the tree officer or any forest officer for cutting the eucalyptus tree standing in the suit property as provided under the law. There is dispute in between the plaintiff and defendants regarding the claim over the cut eucalyptus tree wood efforts is made by the Court to resolve this dispute the claim over eucalyptus tree amicably by directing the parties to deposits the same proceeds in this Court. But parties did not agree for
NC: 2024:KHC:10255 WP No. 2747 of 2024
the same. It is well settled law that not trees can be cut without the prior permission of the tree officer. But the plaintiff in OS No.301/2022 have cut down the standing eucalyptus trees without permission the tree officer or without notice of Tahasildar to cut and remove eucalyptus tree. That best can be down in the dealing with eucalyptus cut wood laying on the suit property is that a direction can be issued to the concerned tree officer and forest officer of the jurisdiction with in whose jurisdiction the suit property is situated, to ascertain the facts that whether the cut wood laying on t he suit property is liable to forfeited to the forest department, if not the tree officers and the concerned forest officer directed to sell the eucalyptus wood cut and laying the suit property to the wood purchaser as per law and deposit the sale proceeds of the same in this appeal. Therefore, I answer point No.1 in affirmative and point No. 2 accordingly.
Point No. 3: on the basis of my above reasons and in the result I proceed to pass the following;
ORDER
The I.A.No.1 filed by the appellant U/o 41 Rule 5(1) is hereby allowed.
The execution and operation of judgment and decree dated 13.03.2023 passed in OS No 301/2022 is hereby stayed until further orders.
The jurisdictional tree officer and forest officer are hereby directed to verify whether the Eucalyptus tree standing on the suit property which are cut down by the respondents with
out the permission of tree officers is liable to forfeited to the forest department, if required the concerned forest officer and tree officer deal with the person who have cut down the standing Eucalyptus trees in accordance with the provision of Forest Act.
In the event that the tree officer or forest officer is of the opinion that the Eucalyptus trees are cut down in accordance with law and not in contravention of forest law and forest Act. Then the concerned tree officer and forest officer are directed sell the cut Eucalyptus wood to the wood purchaser and the deposit the sale proceeds of the same in this Court.
Office to Issue necessary directions to concerned tree officer and forest officer."
order passed by the First Appellate Court cannot be said to be suffer from any illegality or infirmity nor can be said to caused miscarriage of justice warranting interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in the case of Radhey Shyam Vs. Chhabi Nath reported in (2015) 5 SCC 423 . Accordingly, I do not find any merit in the writ petition and the same is hereby dismissed .
NC: 2024:KHC:10255 WP No. 2747 of 2024
matter including eucalyptus trees are kept open and no opinion is expressed on the same.
SD/JUDGE
VMB List No.: 1 Sl No.: 49
3 issues framed by the court
Whether the writ petition challenging the interim stay order under Order 41 Rule 5(1) CPC merits interference under Article 227.
Whether the First Appellate Court committed illegality or caused miscarriage of justice while allowing the stay application in a regular appeal.
Whether the High Court should quash the order directing forest officers to deal with cut eucalyptus trees pending the appeal.
Colour shows how this judgement treated each authority
Radhey Shyam Vs. Chhabi NathDistinguished¶66
Radhey Shyam Vs. Chhabi Nath (2015) 5 SCC 423 · Who else cites this
3 provisions across 2 enactments
SRI SHIVANNA S/O LATE SRI RUDRAPPA
SMT LAKSHMI W/O SRI SHIVANNA
SMT RAMAKKA
SRI NARAYANASWAMY
S.R. KRISHNA KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
