Sri Jayarma Vs Smt. G S Uma

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NC: 2025:KHC:48480 WP No. 2005 of 2020

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF NOVEMBER, 2025 BEFORE

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THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 2005 OF 2020 (GM-CPC)

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BETWEEN:

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SRI JAYARMA S/O KALLAPPA AGED ABOUT 50 YEARS R/A NO.175, KHATHA NO.633 WARD NO.69, MOOKAMBIKA NILAYA 4TH B CROSS ROAD, PREETHINAGARA LAGGERE, NEAR SUBHASCHANDRA BOSE SCHOOL, BANGALORE - 560 058.

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…PETITIONER

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(BY SRI M.B. CHANDRACHOODA, ADV.)

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AND:

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SMT. G S UMA W/O G A SHANKAR MURTHY AGED ABOUT 64 YEARS.

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Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA

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SMT. SIREESHA RAJU D/O SHANKAR MURTHY AGED ABOUT 41 YEARS.

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SRI G S RAVIKUMAR S/O SHANKAR MURTHY AGED ABOUT 40 YEARS.

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RESPONDENTS NO.1 TO 4 ALL ARE R/O NO.4, 1ST FLOOR 2ND CROSS, RAGHAVANAGARA MYSORE ROAD, BANGALORE - 560 026.

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…RESPONDENTS

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(BY SRI RAGHAVENDRA A KULKARNI, ADV., FOR R-1 TO R-3)

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THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER PASSED BY XXV ADDITIONAL CITY CIVIL JUDGE BANGALORE

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NC: 2025:KHC:48480 WP No. 2005 of 2020

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HC-KAR

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IN EXECUTION PETITION NO.2479/2017 DTD.24.1.2020 AS PER ANNEXURE-J BY EXERCISING THE SUPERVISORY JURISDICTION BY ALLOWING THE W.P.

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

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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This writ petition under Article 227 of the

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Constitution of India is filed with a prayer to set aside the order dated 24.01.2020 passed by the Court of XXV Addl. City Civil Judge, Bengaluru in Ex.P.No.2479/2017.

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Heard the learned counsel appearing for the parties.

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The respondents herein had filed O.S.No.3574/2001 before the Court of XXV Addl. Civil & Sessions Judge, Bengaluru seeking the relief of possession of the suit schedule property bearing site No.27 formed in survey No.4 situated at Laggere Village, Yeshwanthpura Hobli, Bengaluru North Taluk measuring 30x40 feet. The said suit was decreed and as against the judgment and decree passed in O.S.No.3574/2001 dated 22.06.2002, the petitioner herein had filed RFA No.1521/2012

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which was dismissed by the Coordinate Bench of this Court on 14.06.2017 reserving liberty to the petitioner to file a fresh suit in respect of site No.34 on which he claimed right, title and interest. Thereafter, the petitioner had filed a fresh suit in O.S.4507/2017 before the Court of LXVII Add. City Civil Judge, Bengaluru. The respondents herein had filed Ex.P.No.2479/2017 before the jurisdictional civil Court with a prayer to execute the decree passed in O.S.No.3574/2001 which had attained finality. In the said proceedings, the petitioner who is the judgment debtor had raised an objection with regard to issue of delivery warrant on the ground that O.S.No.4507/2017 is filed by the petitioner in respect of the

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very same property as per the liberty granted by the Coordinate Bench of this Court in RFA No.1521/2012. In the meanwhile, delivery should not be issued in respect of suit schedule property. The trial Court has rejected the objection raised by the petitioner and had issued delivery warrant in respect of suit schedule property in O.S.No.3574/2001 and being aggrieved by the same, the petitioner is before this Court.

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HC-KAR

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Learned counsel for the petitioner having reiterated

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the grounds urged in the petition submits that the Coordinate Bench of this Court in RFA No.1521/2012 has granted liberty to the petitioner to file a fresh suit. Accordingly, a fresh suit in O.S.No.4507/2017 is filed. The Division Bench of this Court in RFA No.1693/2018 has recorded a finding that property bearing site No.27 and 34 are one and the same and in view of such a finding, the executing Court was not justified in issuing delivery warrant in respect of the suit schedule property in O.S.No.3574/2001.

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Per contra , learned counsel for respondents/decree holders submits that all along the petitioner had contended that site No.27 and 34 are different properties. It is under the said circumstance, liberty was granted to him to file a suit by this Court while dismissing RFA No.1521/2012. The Division Bench of this Court in RFA No.1693/2018 has not recorded a finding that site No.27 and 34 are one and the same and by misleading the trial Court as well this Court, execution has been stalled for a period of more than five years by the petitioner. He

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accordingly prays to dismiss the petition by imposing exemplary cost on the petitioner for having misled the Court.

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Perusal of the material on record would go to show that, O.S.No.3574/2001 was filed by the respondents herein seeking possession of site No.27 formed in survey No.4 of Laggere Village, Yeshwanthpura Hobli, Bengaluru North Taluk totally measuring 30x40 feet. The said suit was decreed and the petitioner herein was directed to handover possession of suit schedule property in O.S.No.3574/2001. As against the judgment and decree passed in O.S.No.3574/2001, the petitioner had approached this Court in RFA No.1521/2012, which was dismissed by the Coordinate Bench of this Court on 14.06.2017. Since the petitioner had contended before this Court in RFA No.1521 of 2012 that he claims right in respect of site No.34 formed in survey No.4 of Laggere Village, Yeshwanthpura Hobli, Bengaluru North Taluk, the Coordinate Bench of this Court while dismissing RFA No.1521/2012 had granted liberty to the petitioner to file a fresh suit in respect of site No.34, which is all together a different site.

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The petitioner thereafter mischievously had filed O.S.No.4507/2017 before the jurisdictional civil Court, Bengaluru in respect of site No.27 which was subject matter of O.S.No.3574/2001. Perusal of description of two property would go to show that suit schedule property in O.S.No.4507/2017 is the very same property, which was subject matter of O.S.No.3574/2001. The trial Court had therefore rejected the plaint in O.S.No.4507/2017 on the ground that the suit was hit by principle of res judicata, since there was already a decree between the same party in respect of very same property in O.S.No.3574/2017. The order passed by the trial Court rejecting the plaint in exercise of its power under Order VII Rule 11 of CPC was questioned by the petitioner before this Court in RFA No.1693/2018 which was disposed of on 20.06.2019.

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The Division Bench of this Court had allowed of RFA No.1693/2018 having appreciated that plaint cannot be rejected on the ground that it was hit by principle of res judicata, as the said question, just as the question of limitation is sometimes a mixed question of law and fact, which may

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require not only examination of plaint, but also recording of evidence.

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A reading of judgment passed by the Division Bench of this Court in RFA No.1693/2018 would go to show that, nowhere this Court had recorded a finding that property bearing site No.27 and site No.34 are one and the same. Such a contention was put forward by the petitioner in RFA No.1693/2018 and the same was recorded, but the Division Bench had not recorded any finding on the same. On the other hand, this Court in RFA No.1521/2012 has specifically observed in the operative portion of its order that site No.27 and site No.34 are two different properties and therefore liberty was reserved to the petitioner to file a fresh suit in respect of site No.34.

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The petitioner on the strength of liberty granted by this Court in RFA No.1521/2012, instead of filing a fresh suit in respect of site No.34 had filed a fresh suit in respect of site No.27 for which there was already a decree of possession passed against him in O.S.No.3574/2001, which was

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unsuccessfully challenged by him in RFA No.1521/2012. Having played the aforesaid mischief, the petitioner has raised objection before the executing Court in Ex.P.No.2479/2017 that delivery warrant should not be issued in respect of property which is subject matter of O.S.No.4507/2017. The trial Court having appreciated this aspect of the matter has rightly overruled the objection raised by the petitioner. The petitioner has thereafter approached this Court in this writ petition and this Court having noticed the mischief played by the petitioner while issuing notice to the respondent had directed the petitioner to deposit a sum of Rs.1 lakhs before the registry of this Court which was made subject to the result of writ petition and an order of status quo was granted by this Court. It appears that after this Court had granted an order of s tatus quo on 27.01.2020, the trial Court has recalled the order impugned wherein delivery warrant in respect of suit schedule property in O.S.No.3574/2012 was issued.

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The petitioner has not only played mischief but also

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has misled the Court and in spite of he suffering a decree in O.S.No.3574/2001 which is confirmed in RFA No.1521/2012 on

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14.06.2017, for the last more than 8 years he has been dragging the proceedings before the executing Court on the ground that he has filed O.S.No.4507/2017 in respect of the very same property on the strength of liberty granted by this Court in RFA No.1521/2012. It is relevant to note here that liberty was granted in RFA No.1521/2012 to file a fresh suit in respect of site No.34 which is totally a different. However, the petitioner has filed suit in O.S.No.4507/2017 once again in respect of site No.27 in respect of which there was a decree of possession already operating against him. The conduct of petitioner is therefore required to be deprecated and as rightly contended by the learned counsel for the decree holders who are made to run from pillar to post to execute the decree passed in O.S.No.3574/2001, this writ petition is liable to be dismissed with exemplary cost.

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12. Accordingly, the following:-

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ORDER

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Writ petition is dismissed with cost of Rs.2 lakhs. The sum of Rs.1 lakh which is deposited by the petitioner before this Court is directed to

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be released in favour of the decree holders after collecting necessary documents from them in support of their identity. Since the trial Court has now recalled the order impugned after this Court had granted an order of statu s quo while issuing notice to the respondents on 27.01.2020, the trial Court shall pass fresh orders regarding issuance of delivery warrant in respect of suit schedule property in O.S.No.3574/2001 as expeditiously as possible but not later than a period of 15 days from the date of receipt of certified copy of this order. If the petitioner fails to pay the balance cost, the same shall be recovered as arrears of land

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revenue.

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Pending IAs' do not survive for consideration and accordingly the same are disposed of.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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NMS

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List No.: 1 Sl No.: 36

Sri Jayarma v. Smt. G S Uma

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Sri Jayarma v. Smt. G S Uma

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