Dismissed¶¶67

Kum Kamalakshi v. Mrs Wilma Dias

Karnataka HC6 Jul 2026WP/2515/2021

Case brief

AI extract

What is this about?

Article 227; GM-CPC; W.P. No.2515/2021; execution proceedings closed; Ex.C.No.28/2014; O.S.No.407/2001; permanent prohibitory injunction decree; declaration rejected; R.A.No.89/2007 appeal dismissed 10.09.2013; disobedience of decree; godown leased to third party 'Shakti Gas'; vague decree schedule; Sy.No.9/2 — 50 cents claimed of 2 acre 68 cents; no cogent evidence; judgment debtors adduced no evidence; Executing Court fully justified; writ petition rejected; I Addl. Civil Judge Mangaluru; Vijaykumar A. Patil; decided 06-07-2026.

What did the court decide?

None; the writ petition was rejected and the Registry was directed to remit back the records to the concerned Court. ¶¶67

Kum Kamalakshi Vs Mrs Wilma Dias — Writ and Judicial Review | Karnataka HC (2026)

What the court decided

AI extract

Outcome

None; the writ petition was rejected and the Registry was directed to remit back the records to the concerned Court.

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Issue for consideration

Whether the writ petition filed under Article 227 challenging the order dated 21.10.2020 of the I Additional Civil Judge, Mangaluru (Executing Court) in Ex.C.No.28/2014 — whereby the decree holders' application was dismissed and the execution proceedings closed — should be allowed (quashing the order and permitting reconsideration/remand). +1 more

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Court's answer

The court expressed its considered view that the Executing Court is fully justified in dismissing the application.

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Ratio / Principle

On re-appreciation, the decree holders' execution-petition affidavit amounted to an assertion that respondent No.1 had illegally and high-handedly constructed a godown in the suit schedule property.

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Key takeaways

No material was placed to substantiate the fact that the construction put up by respondent No.1 was during the pendency of the appeal.ratio¶¶61
Whether the alleged construction by respondent No.1 was in disobedience of the decree was not forthcoming from the material placed by the decree holders.ratio¶¶61
The entire extent in Sy.No.9/2 is 2 acre 68 cents and out of that total extent the petitioner claims to be in possession of 50 cents.

Detailed headnote1 paragraphs

Writ petition (Art. 227, GM-CPC) by decree holder Kum. Kamalakshi challenging the order dt. 21.10.2020 of the I Addl. Civil Judge, Mangaluru (Executing Court) in Ex.C.No.28/2014, whereby her application was rejected and the execution proceedings closed; she prayed to quash that order (Annex-A) and to have her execution petition (Annex-D) allowed. Underlying decree: O.S.No.407/2001 partly decreed on 12.04.2007 — declaration refused, permanent prohibitory injunction granted; the defendants' appeal R.A.No.89/2007 was dismissed on 10.09.2013 and the decree attained finality. Execution sought demolition of a godown allegedly built by judgment debtor No.1 during the pendency of the appeal and leased to a third party trading as 'Shakti Gas'. The court found the decree holders' affidavit a bald assertion, with no material showing the construction was during the pendency of the appeal or in disobedience of the decree; the decree schedule was 'as vague as it could be'; the claim was confined to 50 cents of Sy.No.9/2 (total 2 acre 68 cents); and no cogent or acceptable evidence supported the assertion. Held: the Executing Court was fully justified in dismissing the application and closing the execution proceedings; the writ petition was rejected (Vijaykumar A. Patil J., 06.07.2026); records ordered remitted to the concerned Court.

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NC: 2026:KHC:33731 W.P. No.2515/2021

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF JULY, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.2515/2021 (GM-CPC)

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BETWEEN:

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KUM. KAMALAKSHI D/O BABY MOILY AGED ABOUT 60 YEARS R/AT SHEDIGURI MANGALURU - 575 006.

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…PETITIONER

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(BY SRI. VISHWAS N AND SRI. SRIGANESH C.S. ADVS., FOR SRI. RAKESH KINI, ADV.,)

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AND:

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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MRS. WILMA DIAS AGED ABOUT 64 YEARS W/O R.E. DIAS KINNIMULKI UDUPI - 576 101.

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MRS. K.V. PANDURANGA AGED ABOUT 68 YEARS S/O K. VENKATARAMANA R/AT SRINIVAS COMPOUND ATTAVAR, BABUGUDDA MANGALORE TALUK - 575 001.

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SRI. SRIDHARA RAO AGED ABOUT 58 YEARS S/O SRINIVAS RAO R/AT SHANTHI NIVAS, MIKODI VIDYANAGAR, MUDARANGADY PILAR POST UDUPI TALUK - 574 113.

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HC-KAR

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MR. KRISHNA RAJA RAO AGED ABOUT 53 YEARS S/O SRINIVAS RAO R/AT SHANTHI NIVAS, MIKODI VIDYANAGAR, MUDARANGADY PILAR POST, UDUPI TALUK - 574 113.

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MR. NITHYANANDA AGED ABOUT 47 YEARS S/O CHANAPPA R/AT VIDYANAGAR MAHILAGUDDA PANJIMOGARU MANGALURU - 575 013.

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SRI. HARISH AGED ABOUT 52 YEARS S/O NONAYYA POOJARY R/AT VIDYANAGAR PANJIMOGARU MANGALURU TALUK - 575 013.

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MR. K. SHYAMA AGED ABOUT 55 YEARS, S/O K. LAXMANA R/AT SRIMANGALANILAYA BAJJODI, CARNAL NAGAR BIKARNAKATTE MANGALURU - 575 005.

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MRS. K. VANITHA SHYAMA AGED ABOUT 38 YEARS W/O K. SHYAMA R/AT SRIMANGALANILAYA BAJJODI, CARNAL NAGAR BIKARNAKATTE MANGALURU - 575 005.

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…RESPONDENTS

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(BY SRI. H.N. MANJUNATH PRASAD, ADV., FOR R1, R7 & R8 R2, R3, R4, R5 SERVED V/O/DTD:16.02.2024, NOTICE TO R6 IS H/S)

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HC-KAR

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD 21.10.2020 PASSED BY THE I ADDL. CIVIL JUDGE, COURT AT MANGALURU VIDE ANNX-A. ALLOW THE EXECUTION PETITION FILED BEFORE THE I ADDL. CIVIL JUDGE COURT AT MANGALURU VIDE ANNX-D & ETC.

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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 VIJAYKUMAR A. PATIL

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ORAL ORDER

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This writ petition is filed challenging the order dated 21.10.2020 passed in Ex.C.No.28/2014 by I Additional Civil Judge, Mangaluru D.K. (for short, ‘the Executing Court’ )

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Sri.Vishwas N. and Sri.Sriganesh C.S., learned counsel for Sri.Rakesh Kini, learned counsel for the petitioner submits that petitioner has filed the suit in O.S.No.407/2001 against the respondents. The said suit came to be decreed on 12.04.2007 against the defendants by granting permanent prohibitory injunction. The said judgment and decree was assailed by the defendants

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NC: 2026:KHC:33731 W.P. No.2515/2021

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HC-KAR

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before the appellate Court. The appeal came to be dismissed. Thereafter, the petitioner filed Ex.C.No.28/2014. In the said execution proceedings, the plaintiffs adduced their evidence by filing an affidavit indicating that during the pendency of the appeal, the judgment debtor No.1 illegally and high-handedly constructed a godown and leased out the same in favour of a third party. It is submitted that neither the decree holders have been cross-examined nor the judgment debtors adduced any evidence. However, the Executing Court erroneously closed the execution proceedings. It is further submitted that the matter may be remanded to the Executing Court to reconsider the issue by permitting the parties to adduce evidence. Hence, he seeks to allow the petition.

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Per contra, Sri.H.N.Manjunath Prasad, learned

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counsel for the respondent Nos.1, 7 and 8 supports the order of the Executing Court and submits that the trial Court has dismissed the suit insofar as the relief of

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HC-KAR

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declaration is concerned, and only permanent prohibitory injunction is granted. The decree itself indicates that the property claimed by the plaintiffs is unidentifiable as the total extent in Sy.No.9/2 is 2 acre 68 cents and plaintiffsdecree holders claim 50 cents and they are unable to establish before the Executing Court as to where the property exists and no material is placed to indicate that the judgment debtors, in violation of the decree, have put up the structure in the suit schedule property. The Executing Court has rightly recorded the said reasons and dismissed the application as well as closed the execution proceedings which does not call for any interference. Hence, he seeks to dismiss the petition.

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I have heard the arguments of the learned

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counsel for the petitioner, learned counsel for the respondent Nos.1, 7 and 8 and meticulously perused the material available on record.

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NC: 2026:KHC:33731 W.P. No.2515/2021

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HC-KAR

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The plaintiffs have filed the suit in

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O.S.No.407/2001 seeking the relief of declaration, permanent prohibitory injunction against the defendants. The said suit was partly decreed vide judgment dated 12.04.2007. The relief of declaration was rejected and by decreeing the suit partly by granting the relief of permanent prohibitory injunction as against the defendants or anybody claiming under them.

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It is required to be noticed at this stage that the suit schedule property is described as immovable property situated in Padavu Village of Mangaluru Taluk and comprising in Sy.No.9/2 measuring 50 cents with all other improvements standing thereon with mamoola and easementary rights of way and water appurtenant. The respondents-defendants assailed the judgment and decree passed in the O.S.No.407/2001 before the appellate Court in R.A.No.89/2007 and the said appeal came to be dismissed on 10.09.2013. Thus, the judgment and decree passed in the O.S.No.407/2001 has attained finality. The

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NC: 2026:KHC:33731 W.P. No.2515/2021

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HC-KAR

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petitioner initiated execution petition in Ex.C.No.28/2014 seeking prayer to demolish the building constructed in the plaint schedule property during the pendency of the case through the process of the Court. In support of the petition, an affidavit is filed. The said affidavit indicates that the respondents - judgment debtors have put up construction illegally in the plaint schedule property by disobeying the order passed by the trial Court and they have taken undue advantage of the fact that the decree holders are residing away from the plaint schedule property and sought for demolition. To substantiate the said prayer, the decree holder has filed an affidavit of examination-in-chief. The said affidavit also reiterates the affidavit filed along with the execution proceedings.

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Admittedly, the judgment debtors have not adduced any evidence. The Executing Court under the impugned order has recorded the reasons that the decree holders have failed to specify and establish that, in utter disobedience of the decree, respondent No.1 has illegally

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HC-KAR

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and high-handedly constructed a godown in the suit schedule property and leased out the same in favour of a third party and the said third party is carrying out the business in the said building under the name and style of ‘Shakti Gas’. The Executing Court has also made an observation that the decree holders have failed to produce cogent evidence about the existence of the building in the suit schedule property and proceeded to reject the application.

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On re-appreciation of the execution petition, affidavit annexed to the same and the examination-inchief of the decree holder in the execution proceedings, indicate that the decree holders have made an assertion that the respondent No.1 has illegally and high-handedly constructed a godown in the suit schedule property and leased out the same in favour of a third party and the said third party is carrying out the business in the said building under the name and style of ‘Shakti Gas’. It is to be noticed that except making a bald assertion in the

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HC-KAR

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affidavit, no material is placed to substantiate the fact that the construction put up by the respondent No.1 is during the pendency of the appeal, or whether a building was existing when the suit was filed, or whether the alleged construction by respondent No.1 is in disobedience of the decree is not forthcoming from the material placed by the decree holders.

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It is also required to be noticed that the entire extent in Sy.No.9/2 is 2 acre 68 cents and out of the said total extent, the petitioner is claiming to be in possession of 50 cents. Be that as it may. The perusal of the schedule to the decree is as vague as it could be and on perusal of the said schedule, it would be difficult to come to the conclusion that respondent No.1 has put up the construction in the schedule property in violation of the decree, in the absence of any cogent or acceptable evidence with regard to the assertion made by the petitioner. Hence, I am of the considered view that the Executing Court is fully justified in dismissing the

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