Sri B P Prakashmurthy Vs Smt C L Annapoorna

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT MYSORE ON THE APPLICATION FILED UNDER ORDER 26 RULE 9 READ WITH 151 OF CPC IN EXECUTION PETITION NO.41/2007 DATED 22.04.2019 VIDE AT ANNX-C.

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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 B M SHYAM PRASAD

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ORAL ORDER

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The petitioner is a judgment debtor in Execution No.41/2007 on the file of the Principal Senior Civil Judge and CJM, Mysuru [ 'the executing Court ']. The petitioner is aggrieved by the executing Court's order dated 22.04.2019, and the executing

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Court by this impugned order has rejected the petitioner's application under Order XXVI Rule 9 of the Code of Civil Procedure [ CPC ]. The petitioner has filed this application to appoint the jurisdictional ADLR to visit the suit property viz ., property bearing Door No.318/D, D. Subbaiah Road, Devaraj Mohalla, Mysuru measuring East to West 48 feet and North to South 12 ½ feet and file a Report on the identity of the property referring to the City Survey Records including the relevant PT Sheet.

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The proceedings in Execution No.41/2007 are for execution of the decree in O.S.No.530/1998. The executing Court has rejected this application on two propositions. The executing Court has first reasoned that the petitioner, who did not contest the suit in O.S.No.530/1998 [ a suit for possession ], has availed the remedy under Order IX Rule 9 of CPC in Misc. No.48/2007 which is dismissed and the appeal as against such order in Misc. appeal No.30/2012 is

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also dismissed. The executing Court has next reasoned that the petitioner has sued the first respondent in O.S.No.1571/2007 for permanent injunction regarding the property bearing No.318/D9 of D. Subbaiah Road, Devaraj Mohalla, Mysuru and that such suit is also dismissed. The executing Court has also opined that it is bound by the terms of the decree and it cannot go beyond the terms of the decree.

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Sri S.A. Maruthi Prasad, the learned

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counsel for the first respondent, submits that after dismissal of the Misc. appeal No.30/2012 the petitioner has filed Civil Revision Petition in CRP No.494/2015, and this revision petition is also dismissed. Further the learned counsel submits that the petitioner's suit in O.S.No.1257/2008 for declaration that the judgment and decree in O.S.No.530/1998 is not binding has been dismissed both by the original Court and first appellate Court

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with this Court dismissing the corresponding second appeal in RSA No.137/2018.

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Sri Santhosh Kumar M.B., the learned counsel for the petitioner, proposes to contend that the suit property [ in No. 318/D ] is distinct from the property No.318/D9 and that the first respondent under the guise of the executing decree for possession of the suit property is trying to take possession of the property in No.318/D9, and therefore, the application is well founded. The learned counsel proposes to emphasize that a decree can only be executed for the property to which it relates and not otherwise.

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However, the learned counsel cannot

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persuade this Court to opine that the question of identity was not examined either in the suit in O.S.No.1257/2008 or in the suit in O.S.No.1571/2007. If the question of identity is indeed adjudicated, as it should be in the aforesaid

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suits, the petitioner cannot re-agitate the same issue

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in presenting an application to appoint a Commissioner in the present execution proceedings. As such, this Court does not find any reason to interfere with the impugned order, and the petition therefore stands rejected.

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Sd/(B M SHYAM PRASAD) JUDGE

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SA ct:sr

Sri B P Prakashmurthy v. Smt C L Annapoorna

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Sri B P Prakashmurthy v. Smt C L Annapoorna

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