K B Manjunatha Vs Smt Sarojamma

SRINATHA BASAPPA KULAMBI S/O LATE S. BASAPPA, AGED ABOUT 63 YEARS, R/O NO. 7635, TIFFANY DRIVE, FRISCO, TX 75034, USA REPRESENTED BY HIS POWER OF ATTORNEY HOLDERS

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Digitally signed by CHANDANA B M Location: High Court of Karnataka

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T.SOMASHEKARAPPA, S/O T. THIRTHAPPA, AGED MAJOR, NO 38/1, 3RD CROSS, JAYANAGAR, SHIVAMOGGA-577 201

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AND

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SRI UMESH CHENNAPPA, S/O M. CHANNAPPA

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AGED MAJOR, LAKSHMIPURA, HOSAHALLI-POST,SHIMOGA -577 201

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HC-KAR

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SMT. RATHNA, WIO DR. BASAVARAJ, AGED ABOUT 72 YEARS, C/O SRINATHA BASAPPA KOLAMBI, RIO NO. 7635, TIFFANY DRIVE. FRISCO, TX 76034, USA

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BY HER POWER OF ATTORNEY HOLDERS

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T. SOMASHEKARAPPA, S/O T. THIRTHAPPA, AGED MAJOR, NO 38/1, 3^RD CROSS, JAYANAGAR, SHIVAMOGGA- 577 201

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AND SRI UMESH CHENNAPPA, S/O M. CHANNAPPA AGED MAJOR, LAKSHMIPURA, HOSAHALLI-POST, SHIMOGA-577 201

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…PETITIONERS

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(BY SRI. R GOPAL, ADVOCATE)

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AND:

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SMT SAROJAMMA W/O LATE CHANDRASHEKARA HANJI, AGED ABOUT 64 YEARS, R/O HANJI CHANDAN SHEKAR NIVASA, GANDHARVA NAGARA, NEW MANDLI, SHIVAMOGGA-577 201

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ARAVINDA HANJI, S/O LATE CHANDRASHEKARA HANJI, AGED ABOUT 44 YEARS, R/O HANJI CHANDAN SHEKAR NIVASA, GANDHARVA NAGARA, NEW MANDLI, SHIVAMOGGA-577 201

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SMT. GOWRAMMA, W/O LATE VIJAY KUMAR HANJI, AGED MAJOR, R/O D. NO. 23,

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'SRI VEERABHADRA' 1^st MAIN, 2ND STAGE, DEVARAJ URS NAGARA, SHIVAMOGGA, PIN CODE-577201

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SMT. REKAHA HANJI. V, AGED MAJOR, R/O NO. 2516, RADHAKRISHNA' NILIYA, GROUND FLOOR, 13^TH MAIN ROAD, KUMARSWAMY LAYOUT, 2^ND STAGE, BANGALORE – 560 078

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SMT. LEELA HANJI, AGED MAJOR, R/O DOOR NO. 32, 'GANGA', 1^st CROSS, 1^st MAIN, BASAVESHWARA NAGARA, (BABA SAHIB PALYA) KENGERI, NEAR CHECK POST, MYSORE ROAD, BANGALORE.-560 060

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SMT. PARVATHAMMA HANJI, AGED MAJOR, R/O 'KANISHKA', C-128, 7th MAIN, 4th CROSS, SRINGARA EXTENSION, MYSORE, PINCODE-570002

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SMT. SHANKUNTHALA HANJI, AGED MAJOR, R/O 'KANISHKA', C-128, 7^TH MAIN, 4^TH CROSS, SRINGARA EXTENSION, MYSORE, -570 002

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PRAFULLA CHANDARA HANJI V S/O LATE VIJAY KUMAR HANJI, AGED MAJOR, R/O DOOR NO. 23, SRI.V EERABHADARA 1^st MAIN II STAGE, DEVARAJ URS NAGARA SHIVAMOGGA 577 201

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H V ANAND KUMAR S/O VEERABHADRA HANJI AGED ABOUT 80 YEARS, RETIRED K P T C L SENIOR ASSISTANT R/O MIG 21, GOPALA

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SHIVAMOGGA 577 201

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SMT. SHARADAMMA W/O ALTE DINAKARA HANJI AGED ABOUT 70 YEARS,

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NATRAJA HANJI S/O ALTE DINAKARA HANJI AGED ABOUT 46 YEARS,

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ASHOKA HANJI S/O ALTE DINAKARA HANJI AGED ABOUT 44 YEARS,

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RESPONDENT NOS.10 TO 12 ARE R/O LAXMIPURA VILLAGE, HOSAHALLI THANDA, THIRTHAHALLI ROAD, SHIVAMOGGA 577 201

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SMT. DR. S ANITHA HANJI D/O LATE H V SHIVASHANKARA, AGED ABOUT 46 YEARS, R/O NO. 1777/4, MANDARA NILAYA 2^nd CROSS, 1^st MAIN VINAYAKA EXTENSION NEAR VIDYA NAGARA, DAVANGERE 577 205

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DR. S SNEHA HANJI. D/O LATE H.V SHIVASHANKARA. AGED ABOUT 36 YEARS. R/O NO.5658/0-15,1 FLOOR, LIC COLONY, BEHIND NUTHAN COLLEGE, DAVANAGERE-577 005

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SMT. ASHWINI SHARATH, DIO LATE CHANDRA SHEKARA HANJI. AGED ABOUT 46 YEARS, C/O SIDDAPPA, RTD. FOREST RANGE OFFICER. 6^TH CROSS, 1^ST STAGE, VINOBHANAGARA, SHIVAMOGGA-577 201

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SMT. ANURADHA KUMARA SWAMI,

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W/O KUMARA SWAMI, D/O CHANDRASHEKARA HANJI, AGED ABOUT 42 YEARS, RIO NO.395, C.R.P.F COLONY, YALAHANKA, DODDABALLAPURA ROAD, BANGALORE-560 064

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SMT. USHA SIDDAPPA, D/O SRI. VEERABHADRA HANJI, W/O SIDDAPPA, RTD. FOREST RANGE OFFICER, AGED MAJOR, R/O 6^TH CROSS, 1^ST STAGE, VINOBHANAGARA, SHIVAMOGGA-577 201.

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SMT. GIRIJA ESHWAR, D/O SRI. VEERABHADRA HANJI, W/O DR.G.H ESHWARAPPA, AGED ABOUT 74 YEARS, RIO DOOR NO. 137, 'DEEPASHRI', RAMAKRISHNA NAGARA, MAZDOOR EMPLOYEES LAYOUT, MYSORE-577 201

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POORNIMA AGED ABOUT 67 YEARS, W/O MAHESH, RETIRED EXECUTIVE ENGINEER, KEBA-BLOCK, 16^TH CROSS, SHARAVATHI NAGARA. SHIVAMOGGA, - 577 201

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…RESPONDENTS

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(R1, R2 ARE SERVED;

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VIDE ORDER DATED 06.12.2024

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NOTICE TO R3 TO R19 IS DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMON ORDERS DTD. 09.09.2024 VIDE ANNEXURE-X PASSED BY THE COURT OF II ADDL. SENIOR CIVIL JUDGE AND JMFC AT SHIVAMOGGA IN EX.NO. 25/2023 ON I.A.NOS. XI AND XII AND CONSEQUENTLY ALLOW AND GRANT THE RELIEFS AS PRAYED FOR IN I.A.NOS XI AND XII, VIDE, ANNEXURE-T AND U AND GRANT ANY OTHER APPROPRIATE ORDERS OR DIRECTIONS FOR POSSESSION TO WHICH PETITIONERS ARE ENTITLED TO IN LAW AS PER DECREE UNDER EXECUTION IN EXECUTION CASE NO. 25/2023 ON THE FILE OF II ADDL. SENIOR CIVIL JUDGE AND JMFC AT SHIVAMOGGA IN THE FACTS AND CIRCUMSTANCES OF THE CASE.

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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.R.KRISHNA KUMAR

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ORAL ORDER

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This petition by the petitioners-decree holders in Ex.No.25/2023, is directed against the impugned order passed on I.A.Nos.XI and XII by the II Addl. Senior Civil Judge and JMFC, Shivamogga (for short “the Executing Court”), whereby the said applications filed by the petitioners for re-issuance of delivery warrant against the respondents-judgment debtors by breaking open the lock with police assistance for executing the delivery warrant were rejected by the Executing Court.

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Heard learned counsel for the petitioners and perused the material on record.

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A perusal of the material on record will indicate that the petitioners-decree holders instituted the instant execution proceedings in Ex.No.25/2023 to enforce and implement the judgment and decree passed in O.S.No.98/2011 dated 15.10.2015, which was confirmed by the First Appellate Court in R.A.No.57/ 2015 as well as by this court in RSA No. 531/2023 C/w. RSA

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No.853/2023, both of which were dismissed by this court. In the first instance, the Executing Court having issued delivery warrant on 31.02.2024 by dismissing the application filed by the respondents for appointment of a Court Commissioner, the respondents approached this court in W.P.No.3679/2024, which was allowed and which was disposed of by this court vide Final Order dated 11.03.2024, as hereunder:

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1. “This petition is directed against the impugned order dated 30.01.2024 passed in Ex. No. 25/2023 whereby the application filed by the petitioners - judgment debtor Nos. 7 and 8 for appointment of Court Commissioner was rejected by the Executing Court which directed issuance of delivery warrant along with Police help in favour of respondent Nos. 1 to 4 - decree holders.

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2. Heard learned counsel for the parties and perused the material on record.

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3. On 05.02.2024, this Court passed the following

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interim order:

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“Heard learned counsel for the petitioner.

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Learned counsel for the respondents – caveator is absent.

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Re-list on 09.02.2024 under the caption ‘orders’.

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In the meanwhile, all further proceedings in Ex.No.25/2023 on the file of II Addl. Senior Civil Judge

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and JMFC, Shivamogga, are hereby stayed till the next date of hearing.

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Liberty is reserved in favour of respondents to seek vacation / modification of this order.”

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4. Subsequently, respondent Nos. 1 to 4 - decree holders have entered appearance and filed an application, I.A. No. 1/2024 seeking vacating of the said interim order passed by this Court. Along with the application, respondent Nos. 1 to 4 - decree holders have produced copy of the judgment and decree dated 12.12.2023 passed in RSA No. 531/2023 connected with RSA No. 853/2023 (Annexure – R3) in order to point out that despite said judgment and decree passed by this Court dismissing the appeal filed by judgment debtor Nos. 7 and 8, said fact has been deliberately and intentionally suppressed by the petitioners – judgment debtor Nos. 7 and 8 in the present petition. It is also pointed out that as per the said judgment and decree, the petitioners – judgment debtor Nos. 7 and 8 were bound to hand over vacant possession of the suit schedule property in favour of respondent Nos. 1 to 4 – decree holders.

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5. Learned counsel for respondent Nos. 1 to 4 – decree holders also submitted that pursuant to the impugned order passed by the Executing Court, the Court Ameen/Bailiff has executed the warrant on 05.02.2024 and handed over possession of the property to respondent Nos. 1 to 4 – decree holders at 11.00 am in the presence of petitioner No. 2 – judgment debtor No. 8 as evidenced by the mahazar, report etc., produced as Annexures R-4 to R-7. It is also submitted that taking advantage of the interim order passed

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by this Court, the petitioners – judgment debtor Nos. 7 and 8 have forcibly, illegally and highhandedly re-entered and illegally acquired suit schedule property by breaking open and removing the lock affixed by respondent Nos. 1 to 4 – decree holders in the presence of Court Ameen/Bailiff. In this context learned counsel for respondent Nos.1 to 4 – decree holders submits that necessary application would be filed by respondent Nos. 1 to 4 – decree holders before the Executing Court seeking re-issuance of said warrant and necessary directions may be issued to the Executing Court to pass appropriate orders in accordance with law. It is further submitted that conduct of the petitioners – judgment debtor Nos. 7 and 8 being contemptuous, scurrilous and vexatious, the same tantamounts for interference with the administration of justice and contempt action being initiated against the petitioners – judgment debtor Nos. 7 and 8 and necessary application would be filed the respondent Nos. 1 to 4 – decree holders before the Executing Court in this regard.

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6. The petitioners – judgment debtor Nos. 7 and 8 would dispute the various contentions raised on behalf of respondent Nos. 1 to 4 – decree holders. It is also submitted by learned counsel for the petitioners – judgment debtor Nos. 7 and 8 that in the event respondent Nos.1 to 4 – decree holders files such an application, the petitioners – judgment debtor Nos. 7 and 8 would contest the same in accordance with law.

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7. The aforesaid facts and circumstances will clearly indicate that in the light of the mahazar, report, proceedings etc., of the Court Bailiff produced as Annexures R-4 to R-7 and judgment and decree passed by this Court in RSA No. 531/2023 connected with RSA No. 853/2023 – Annexure R-3, nothing further survives for consideration in the present petition and the same deserves to be disposed off without interfering with the impugned order. Liberty is reserved in favour of respondent Nos. 1 to 4 – decree holders to file an application before the Executing Court which shall be considered by the Executing Court after providing an opportunity in this regard to the petitioners – judgment debtor Nos. 7 and 8.

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8. Since the litigation between the parties commenced in the year 1992 and in the exceptional facts and circumstances of the instant case, I deem it just and appropriate to direct the Executing Court to conclude the execution proceedings as expeditiously as possible in accordance with law.

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Subject to the aforesaid directions, petition stands disposed off.”

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It is a matter of record that in the said petition, there was an interim order of stay, as a result of which the petitioners - decree holders contended that taking advantage of the said interim order, the respondents re-entered the execution schedule premises and broke open the lock of the farmhouse and gate on 06.02.2024.

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The said contention of the petitioners-decree holders was noted by this Court in the aforesaid order and the petition was disposed of reserving liberty in favour of the petitioners to file appropriate applications before the Executing Court. In pursuance of the same, the petitioners-decree holders having filed I.A.Nos.XI and XII for reissue of delivery warrant and for police protection, which was opposed by the respondents and culminated in the impugned order passed by the Executing Court dismissing the applications, aggrieved by which the petitioners are before this court by way of the present petition.

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A perusal of the material on record including the impugned order will indicate that though the Executing Court has proceeded to dismiss the applications filed by the petitioner on the ground that the only remedy available to the petitioner was to institute a separate suit and seek recovery of possession and not by way of the present applications. In this context, it is pertinent to note that the Executing Court has recorded a finding at paragraph 12 that the petitioner had obtained possession of the petition schedule property on 05.02.2024 through the process of execution through the court bailiff and the respondents having subsequently

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dispossessed the petitioners on the basis of an interim order of stay passed in W.P.No.3679/2024, it was the duty/obligation cast upon the Executing Court to restore status quo ante by exercising inherent powers and by applying the principles of restitution as held

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by the Apex Court in the case of Kalabharathi Advertising Vs. Hemant Vimalanath Narichania and others – (2010) 9 SCC 437, wherein it is held as under:

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“15. No litigant can derive any benefit from the mere pendency of a case in a court of law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the court. [Vide A.R. Sircar (Dr.) v. State of U.P., Shiv Shankar v. U.P. SRTC, Arya Nagar Inter

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College v. Sree Kumar Tiwary, GTC Industries Ltd. v. Union of India and Jaipur Municipal Corpn. v. C.L. Mishra]

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16. In Ram Krishna Verma v. State of U.P. [(1992) 2 SCC 620] this Court examined the issue while placing reliance upon its earlier judgment in Grindlays Bank Ltd. v. and held that no person can suffer from the act of the court and in case an interim order has been passed and the petitioner takes advantage thereof, and ultimately the petition stands dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised. A similar view has been reiterated by this Court in Mahadeo Savlaram Shelke v. Pune Municipal Corpn.

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17. In South Eastern Coalfields Ltd. v. State of M.P. this Court examined this issue in detail and held that no one shall suffer by an act of the court. The factor attracting the applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the court; the test is whether an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party suffering an impoverishment which it would not have suffered but for the order of the court and the act of such party. There is nothing wrong in the parties demanding to be placed in the same position in which they would have been had the court not intervened by its interim order, when at the end of the proceedings, the court pronounces its judicial verdict which

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does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences.

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18. The Court further held : (South Eastern Coalfields Ltd. case, SCC pp. 664-65, para 28)

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“28. … Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated….”

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19. In Karnataka Rare Earth v. Deptt. of Mines & Geology a similar view has been reiterated by this Court observing that the party who succeeds ultimately is to be placed in the same position in which they would have been if the court would not have protected them by issuing interim order.

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20. The aforesaid judgments are passed on the application of legal maxim sublato fundamento, cadit opus, which means in case a foundation is removed, the superstructure falls.

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21. In Badrinath v. State of T.N. this Court observed that once the basis of a proceeding is gone, all consequential acts, action, orders would fall to the ground automatically and this principle of consequential order which is applicable to judicial and quasi-judicial proceedings is equally applicable to the administrative orders.

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Court cannot be used only for interim relief

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22. It is a settled legal proposition that the forum of the writ court cannot be used for the purpose of giving interim relief as the only and the final relief to any litigant. If the court comes to the conclusion that the matter requires adjudication by some other appropriate forum and relegates the said party to that forum, it should not grant any interim relief in favour of such a litigant for an interregnum period till the said party approaches the alternative forum and obtains interim relief. (Vide State of Orissa v. Madan Gopal, Amarsarjit Singh v. State of Punjab, State of Orissa v. Ram Chandra Dev, State of Bihar v. Rambalak Singh “Balakand Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke)

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23. It is settled proposition that an order of withdrawal of a suit does not amount to a decree of the court, which can be executed. (See Kandapazha Nadar v. Chitraganiammal.)

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24. It is not permissible for a party to file a writ petition, obtaining certain orders during the pendency of the petition and withdraw the same without getting proper adjudication of the issue involved therein and insist that the benefits of the interim orders or consequential orders passed in pursuance of the interim order passed by the writ court

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would continue. The benefit of the interim relief automatically gets withdrawn/neutralised on withdrawal of the said petition. In such a case concept of restitution becomes applicable otherwise the party would continue to get benefit of the interim order even after losing the case in the court. The court should also pass order expressly neutralising the effect of all consequential orders passed in pursuance of the interim order passed by the court. Such express directions may be necessary to check the rising trend among the litigants to secure the relief as an interim measure and then avoid adjudication on merits. (Vide Abhimanyoo Ram v. State of U.P)”

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It is well settled that in order to prevent abuse of process of law and to restore status quo ante , the Courts are empowered to exercise their inherent powers in order to do substantial and complete justice. In the instant case, the material on record discloses that on 05.02.2024, the petitioners took possession of the schedule property through the Court process i.e., through the court bailiff in execution proceedings and the execution proceedings were not closed and remained pending. However, in view of the interim order passed by this court in W.P.No.3679/2024 dated 05.02.2024, the respondents have re-entered possession of the suit schedule property. In fact, in its interim order dated 05.02.2024, this Court merely stayed further proceedings and since

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the petitioners had already taken possession of the suit schedule property through Court process through the bailiff, the interim order could not have been misused by the respondents to re-enter possession of the schedule property, especially when this Court has granted liberty in favour of the petitioners-decree holders to file appropriate application before the executing court. Under these circumstances, I deem it just and appropriate to set aside the impugned order and allow the applications filed by the petitionersdecree holders and with a direction to the Executing Court to proceed further, in accordance with law.

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In the result, I pass the following:

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ORDER

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(i) The petition is allowed .

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(ii) The impugned order dated 09.09.2024 passed on I.A.Nos.XI and XII in Ex.No.25/2023 by the II Addl. Senior Civil Judge and JMFC, Shivamogga, * is hereby quashed.

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(iii) Consequently, I.A.Nos.XI and XII filed by the petitioners are allowed.

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Inserted vide Court order dated: 20.02.2026.

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(iv) The Executing Court is directed to re-issue delivery warrant and take necessary steps to ensure that the delivery warrant is executed along with necessary Police help in order to put the petitioner in possession of the suit schedule property, as expeditiously as possible.

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(v) The jurisdictional police authorities are directed to provide necessary assistance to enable the Executing Court to execute the delivery warrant and hand over possession of the suit schedule property to the petitioners.

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(vi) It is further directed that upon delivering possession of the * Suit Schedule property to the petitioners, in the event the petitioners request the jurisdictional Police Authorities for police protection, the jurisdictional Police Authority shall render such police protection to the petitioner

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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BMC

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List No.: 2 Sl No.: 7

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* Corrected vide Court order dated: 20.02.2026.

K B Manjunatha v. Smt Sarojamma

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K B Manjunatha v. Smt Sarojamma

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