Sri.Rudraiah.C Vs the State of Karnataka

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED IN EX.No.2857/2013 DATED 21/11/2024 (ANN-X) ON THE FILE OF THE XIX ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, AS THE SAME IS ILLEGAL AND CONTRARY TO THE JUDGMENT AND DECREE PASSED IN R.A.No.599/1980 DATED 09/12/1982 AND ALSO IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND

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CAV ORDER

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Heard Sri P.N. Nanjareddy, learned counsel for the petitioner, Sri Neelakantappa K. Pujar, learned High Court Government Pleader for respondent No.1, Sri K.V. Bathegowda, learned counsel for respondent No.2 and Sri N. Manohar, learned counsel for respondent No.3.

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This writ petition is filed by the decree holder challenging the order dated 21.11.2024 passed in Ex. No.2857/2013 by the XIX Additional City Civil & Sessions Judge at Bengaluru (for short, ‘the Execution Court’).

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The petitioner purchased two residential sites from Smt. Lakshmamma. The properties are described as Site Nos.25 and 26, situated at 3rd Cross, Muneshwara Block, Palace Guttahalli,

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Bengaluru. Prior to the purchase of the sites by the petitioner, the second respondent–BBMP attempted to form a road in the sites in question on 01.12.1977. Aggrieved by the same, Smt. Lakshmamma filed O.S. No.3046/1977 seeking a decree of permanent injunction. The said suit came to be dismissed on 25.06.1979.

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3.1 Thereafter, Smt. Lakshmamma filed R.A. No.599/1980. The Appellate Court, by judgment dated 09.12.1982, allowed the appeal and decreed the suit. The said judgment and decree have attained finality. Subsequently, the petitioner purchased the above two sites from Smt. Lakshmamma under a sale deed dated 29.01.1993 and was put in possession of the properties.

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3.2 Thereafter, the petitioner filed Execution No.1019/1997 to execute the judgment and decree passed in R.A. No.599/1980. In the said execution proceedings, the second respondent– BBMP filed a memo on 16.06.1999 undertaking to provide an alternative site at Malleshwaram. Based on the said undertaking, the Executing Court closed the execution petition, reserving liberty to the petitioner to initiate fresh execution proceedings in the event the alternative site was not provided.

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Accordingly, the execution petition came to be closed on 17.06.1999.

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3.3 The second respondent passed a resolution on

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27.04.2000 to grant an alternative site. As the undertaking was not complied with, the petitioner issued a legal notice on 26.07.2000 calling upon the second respondent to grant the alternative site. In response, the second respondent, by communication dated 17.08.2000, called upon the petitioner to pay the difference in the amount towards the alternative site. On 27.12.2000, the petitioner submitted a letter agreeing to pay the difference amount for the allotment of the alternative site.

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3.4 In the meantime, the third respondent attempted to put up construction on the alternative site. Aggrieved by the same, the petitioner approached this Court in W.P. Nos.9916– 9917/2011. This Court granted an interim order directing that the alternative site proposed for allotment to the petitioner be kept vacant. Thereafter, this Court, by order dated 06.09.2013 disposed of the writ petitions, requiring the petitioner to file an execution petition in terms of the order passed in Ex. No.1019/1997.

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3.5 Pursuant thereto, the petitioner filed Ex. No.2857/2013 on 21.10.2013 seeking attachment of movables. The Executing Court, however, dismissed Execution No.2857/2013 by order dated 09.01.2017. The dismissal was challenged in Writ Petition No.6352/2017. This Court, by order dated 09.10.2019, set aside the order passed in the execution proceedings and remanded the matter to the Trial Court.

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3.6 Upon remand, the Execution Court again dismissed Execution Petition No.2857/2013 as not maintainable by order dated 12.06.2020. The said order was challenged in Writ Petition No.9062/2020. This Court, by order dated 27.07.2023, set aside the said order and remanded the matter to the Trial Court. Thereafter, the Execution Court once again dismissed

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the execution petition by order dated 21.11.2024 on the ground that the judgment-debtor had not violated the judgment and decree passed in R.A. No.599/1980.

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3.7 Aggrieved by the said order, the petitioner is before this court.

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Sri P.N. Nanjareddy, learned counsel appearing for the petitioner, submits that O.S. No.3046/1977 came to be dismissed, against which RA No.599/1980 was filed. The

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appellate court allowed the appeal by granting a decree of permanent injunction restraining the defendants, their workmen, contractors, or anybody acting on their behalf from forming any drains on any portion of the suit sites bearing Nos.25 and 26 (Corporation Nos.25/1 and 25/2).

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4.1 Learned counsel further submits that the decree was granted in the suit filed by Smt. Lakshmamma, the vendor of the suit schedule properties to the petitioner. Upon purchase of the suit schedule properties, the petitioner became entitled to the benefit of the said decree. It is further submitted that when Execution No.1019/1997 was filed, the second respondent– BBMP filed a memo undertaking to provide an alternative site at Malleshwaram, pursuant to which a resolution also came to be passed in that regard.

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4.2 It is submitted that the petitioner was called upon to pay the difference in the amount towards the alternative site, to which the petitioner had agreed. Accepting the undertaking filed by the second respondent, the Execution Court closed the execution proceedings with liberty to the petitioner to initiate fresh execution proceedings in the event the alternative site was not granted.

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4.3 It is further submitted that when the second respondent

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failed to provide the alternative site, the petitioner filed Execution No.2857/2013. The said execution petition was dismissed thrice by the Execution Court and was restored on all occasions by this Court in writ proceedings. It is contended that the impugned order once again dismissing the execution proceedings is unsustainable in law. The decree of the Court cannot be allowed to remain merely on paper without being executed.

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Per contra , Sri K.V. Bathegowda, learned counsel appearing for respondent No.2, submits that the decree obtained by the predecessor-in-title of the petitioner does not enure to the benefit of the petitioner. It is contended that the decree loses its enforceability after the transfer of the property in favour of the petitioner.

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5.1 Learned counsel further submits that the decree was obtained by suppressing the earlier rejection of the suit in O.S. No.1067/1980 filed by Smt. Lakshmamma, the predecessor-intitle of the petitioner, against two individuals, wherein the suit for mandatory and permanent injunction came to be rejected.

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5.2 It is also submitted that the existence of the sites in question has not been established. Therefore, the Execution Court was justified in rejecting the execution petition. Learned counsel further submits that the petitioner cannot seek execution of the undertaking in order to insist upon the allotment of an alternative site.

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5.3 With these submissions, learned counsel prays for dismissal of the writ petition.

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I have considered the submissions made by learned counsel for the parties and perused the writ papers.

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The sequence of dates and events is not disputed by the BBMP. However, the BBMP contends that the existence of the two sites was doubted in O.S. No.1067/1980 filed by Smt. Lakshmamma, the predecessor-in-title of the petitioner. It is contended that, in view of the said order passed by the Trial Court, the judgment and decree sought to be executed are not enforceable.

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7.1 It is further contended that the said order has attained finality and that the decree was obtained by suppressing the earlier order passed in O.S. No.1067/1980. The contentions

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raised by the respondent–BBMP are not tenable. O.S. No.1067/1980 was filed by Smt. Lakshmamma against two individuals seeking a decree of mandatory and permanent injunction.

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7.2 The Trial Court, while considering the prayer for mandatory injunction directing removal of the construction put up by the defendants therein on the property of Smt. Lakshmamma, rejected the suit on the ground that the portion of the property on which the construction had been carried out was not identifiable and, therefore, no order of injunction could be granted. The Trial Court further observed that the plaintiff therein had not adduced evidence to establish the existence of the properties.

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7.3 The findings recorded in the said judgment are neither relevant nor of any consequence in the present proceedings. The order passed in O.S. No.1067/1980 cannot be relied upon by the BBMP as a defence to avoid compliance with, or to object to the execution of, the judgment and decree passed in R.A. No.599/1980. The decree in question is against the BBMP. The BBMP has not challenged the said decree, and the same has attained finality.

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7.4 After the decree was granted, the decree holder transferred the property in favour of the petitioner under a valid sale deed dated 29.01.1993.

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7.5 It is a settled position of law that any decree attached to a property, upon its transfer, enures to the benefit of the subsequent purchaser. In view of the said legal position, the contention that the judgment and decree are person-specific and that, upon transfer of title, the benefit of the decree would not pass to the purchaser is unacceptable and contrary to the settled principles of law.

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7.6 This contention is also not available to the BBMP for the further reason that, in the execution proceedings initiated by the petitioner in Ex. No.1019/1997, the BBMP filed a memo undertaking to grant an alternative site measuring 45 × 60 feet at 13th Cross, Malleshwaram, Bengaluru, and prayed for closure of the execution proceedings. Pursuant thereto, the BBMP passed a resolution dated 27.04.2000 in this regard. The Trial Court, recording the said undertaking, closed the execution proceedings with liberty to the petitioner to initiate fresh execution proceedings in the event the undertaking was not complied with.

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7.7 It is submitted that the documents on record disclose that the BBMP forwarded the resolution for allotment of the alternative site to the Government. The Government, by order dated 20.08.2005, rejected the proposal on two grounds: firstly, relying upon the order passed in O.S. No.1067/1980; and secondly, by placing reliance on judgments of other High Courts holding that a decree of permanent injunction cannot be executed by a subsequent purchaser.

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7.8 In light of the rejection, the petitioner agitated his right multiple times in the execution court as well as in this court. This court on 30.05.2023 in WP No.9062/2022, ordered the Joint Commissioner to conduct survey/spot inspection to find out the existence and extent of the properties in question. A report was submitted stating that no such properties existed and the people of the locality had stated that the road has existed from the past 60 years.

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7.9 The BBMP has placed strong reliance on the report said to have been prepared during the spot inspection. Though the report bears the signature and stamp of the officer concerned, the requisite signatures of the people of the locality are conspicuously missing. In such circumstances, the so-called

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joint inspection report lacks credibility and cannot be relied upon.

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7.10 The stand taken by the BBMP is wholly unrealistic. When the formation of the road in the sites in question is stated to have taken place during the period 1977–1982, the identification of the sites after nearly five decades is difficult to conceive. The stand taken by the BBMP is not only unreasonable but practically impossible. This Court is unable to appreciate the reliance placed by the BBMP on the alleged spot inspection, particularly when the BBMP had filed a memo before the Execution Court as early as in 1999 undertaking to provide an alternative site. Further, the BBMP had passed a resolution on 27.04.2000 to grant the alternative site and had also called upon the petitioner to pay the difference amount as early as on 17.08.2000.

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7.11 If, in fact, the sites were not in existence, there was no necessity for the BBMP to file such an undertaking, pass a resolution for allotment of an alternative site, seek approval of the Government, and determine the difference amount payable by the petitioner. The plea regarding the non-existence of the sites in question is contradictory to the actions of the

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authorities. The stand taken by the BBMP that the sites do not exist is in direct conflict with its own undisputed actions on record.

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7.12 At this distance of time, nearly fifty years after the alleged formation of the road, any dispute regarding the existence of the sites cannot be realistically examined. The very circumstances only expose the lack of merit in the stand taken by the BBMP. The BBMP, being a public authority, is expected to take a stand that is supported by the record and is reasonable.

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Now coming to the correctness of the order passed by the Execution Court, the Execution Court has formulated the following two points for consideration:

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" 1. Whether the petitioner/decree holder proves that respondent No.2/BBMP requires to be directed to grant alternative site measuring 45 feet x 60 feet in favour of petitioner as prayed?

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2. What order?"

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8.1 The Execution Court held that the decree of bare injunction granted was a decree in personam and would not run with the land, and therefore the petitioner cannot execute such a decree. It was further held that the petitioner is not a decree

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holder. The said finding is contrary to the law laid down by the Hon’ble Supreme Court in Vaishno Devi Constructions and another vs. Union of India and others [(2022) 2 SCC 290] , wherein it has been held as under:

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"26.….The High Court gave liberty to the transferees to avail of Section 146 if they did not fall within the provisions of Order 21 Rule 16 CPC and, thus, would cover transferees of a property after the decree was passed. In this behalf the learned Judge disagreed with an earlier judgment of the Madras High Court in K.N. Sampath Mudaliar v. Sakunthala Ammal opining that Section 146 CPC could not have the effect of overriding Order 21 Rule 16 CPC. The Law Commission agreed with the view taken in the former judgment (which was delivered at a later point of time) and further noted that this view was supported by the High Courts of Andhra Pradesh, Patna and Kerala as well. Thus, the Law Commission recommended amending Order 21 Rule 16 to clarify that it does not affect the provisions of Section 146 and that a transferee of rights in the subject-matter of the suit can obtain execution of a decree without separate assignment of the decree. The objective appears to be to not have multifarious proceedings to determine the issue of assignment, but to determine the issue of assignment in the execution proceedings itself.

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27. In the conspectus of the aforesaid we are of the view that the objective of amending Order 21 Rule 16 CPC by adding the Explanation was to deal with the scenario as exists in the present case, to avoid separate suit proceedings being filed therefrom and to that extent removing the distinction between an assignment pre the decree and an assignment post the decree. Thus, what has been discussed even in the judgment in Jugalkishore Saraf as a view based on the equitable principle was sought to be incorporated in Order 21 Rule 16 CPC by adding the Explanation, something which had not been done earlier. Once the legislative intent is clear, and the law is amended, then the earlier position of law cannot be said to

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prevail post the amendment and it is not in doubt that the present case is one post the amendment.

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28. We may further add that while considering the divergent views of the High Courts, the Law Commission took note of the fact that two different interpretations of Jugalkishore Saraf had been adopted. Thus, the Law Commission really sought to clarify the legal position so that the conflicting interpretations of the Supreme Court judgment would not survive. The Explanation clearly stipulates that nothing in Order 21 Rule 16 CPC would affect the provisions of Section 146 and the transferee of the right in property which is subject-matter of a suit may apply for execution of the decree without separate assignment of the decree as required by law. No doubt the appellants are not parties in the suit proceedings but they claim as aassignees of the decree-holder."

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8.2 The Execution Court has further recorded that there is no

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evidence of disobedience of the judgment and decree. It has also observed that it is not clear whether the formation of the road was undertaken by the BBMP or the BDA. The Execution Court has further held that the prayer in the execution petition seeking grant of an alternative site is not maintainable. It is also observed that the filing of the suit in O.S. No.1067/1980 by the petitioner’s vendor, Smt. Lakshmamma, which directly concerns the properties in question, was not disclosed. On that basis, the Execution Court has further held that the suit itself was not maintainable.

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8.3 The above findings are not sustainable. The Hon’ble Supreme Court, in the case of Meenakshi Saxena and another vs. ECGC Limited and another [(2018) 7 SCC 479] , has held as under:

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"….17. The whole purpose of execution proceedings is to enforce the verdict of the court. Execution court while executing the decree is only concerned with the execution part of it but nothing else. The court has to take the judgment in its face value. It is settled law that executing court cannot go beyond the decree. But the difficulty arises when there is ambiguity in the decree with regard to the material aspects. Then it becomes the bounden duty of the court to interpret the decree in the process of giving a true effect to the decree. At that juncture the executing court has to be very cautious in supplementing its interpretation and conscious of the fact that it cannot draw a new decree. The executing court shall strike a fine balance between the two while exercising this jurisdiction in the process of giving effect to the decree."

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8.4 The said principle has been reiterated in Sanwarlal

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Agrawal and others vs. Ashok Kumar Kothari and others (AIROnline 2023 SC 139).

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8.5 In the light of the above enunciation of law by the Hon’ble Supreme Court regarding the scope of interpretation by an Execution Court, the findings recorded by the Execution Court that there is no proof of disobedience, that there is no proof of formation of the road by the BBMP, that there is no evidence

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regarding the existence of the property, that the suit itself was not maintainable, and that the decree cannot be executed on account of suppression of the order in O.S. No.1067/1980, are clearly beyond the scope of the powers of the Execution Court. The extent of interpretation permissible to an Execution Court arises only in cases where there is ambiguity in the decree. In the present case, we find that there is no ambiguity in the decree.

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The Execution Court has further referred to the spot inspection report. The said report was prepared by the engineers of the BBMP, who were also examined before the Execution Court. During the examination of CW.2, the Joint Commissioner, West Zone, BBMP, Malleshwaram, it was admitted that a road had been formed on the suit property. CW.2 has further stated that the neighbouring residents reported that the road had been in existence for the last 60 years and that no encroachment was found during the inspection. This finding has been accepted by the Trial Court.

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9.1 When it is alleged that as far back as in 1977 the BBMP attempted to form roads on the sites in question, and a decree of injunction was granted in the year 1982, the subsequent

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conduct of the BBMP assumes significance. When execution of the said decree was initiated, the BBMP filed a memo undertaking to provide an alternative site.

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9.2 The very act of filing an undertaking to grant an alternative site itself indicates that the BBMP had formed a road on the suit properties. If the roads had not been formed on the said sites, there would have been no necessity for the BBMP to file such an undertaking before the Court. The matter did not end with the filing of the undertaking.

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9.3 The BBMP has also passed a resolution to grant an alternative site, and the recommendation of the Commissioner was forwarded to the Government for approval. If the road had not been formed on the sites in question, the Commissioner,

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BBMP, would not have recommended the grant of an alternative site, nor would a resolution have been passed to that effect.

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9.4 Further developments have also taken place. The petitioner was called upon to pay the difference in the amount towards the alternative site, to which the petitioner had agreed. It is only when the resolution of the BBMP was placed before the Government for consideration that the denial commenced.

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However, it is significant to note that the decree passed against the BBMP has remained unchallenged.

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9.5 Once there exists a decree which is sought to be executed, it is the duty of the Execution Court to ensure its enforcement. The Execution Court cannot go into questions regarding the existence of the property forming the subject matter of the decree, the maintainability of the suit in which the decree was passed, or other such issues as enumerated by the Hon’ble Supreme Court in the judgments referred to supra .

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9.6 It appears that the Execution Court has misdirected itself in referring to the order passed in O.S. No.1067/1980. The said suit was filed by Smt. Lakshmamma, the vendor of the petitioner, against two individuals seeking injunction in respect of the alleged encroached construction made by them. The Trial Court, observing that the portion of the encroachment was not established, declined to grant the injunction.

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9.7 The order passed in O.S. No.1067/1980 has no bearing on the decree sought to be executed in the present proceedings. Moreover, the said order neither has any relevance to the decree in question nor does it record any

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finding contradictory to the findings recorded in the decree sought to be executed.

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9.8 Even assuming that there was any such contradiction, nothing prevented the BBMP from challenging the decree in appropriate proceedings. Having failed to exercise its right of appeal, it is not open to the BBMP at this stage to question the correctness of the decree in execution proceedings.

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The executing Court is required to record evidence and a finding regarding the disobedience of the order of injunction and the formation of a road on the sites in question. In view of the other considerations taken into account by the executing Court, neither evidence has been recorded nor any finding rendered with regard to the violation of the injunction order and the formation of a road in breach thereof. Unless such a finding is recorded and the decree is executed, the decree cannot be permitted to remain merely on paper, thereby defeating its purpose.

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The prayer of the petitioner seeking a direction to respondent No.2–BBMP to allot an alternative site in terms of its undertaking cannot be entertained. When the execution proceedings were closed on 17.06.1999 on the basis of the

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undertaking, liberty was granted to the petitioner to initiate fresh execution proceedings in the event of non-compliance. The petitioner has availed the said liberty and initiated the present execution proceedings. The undertaking was filed in the form of a memo, which by itself is not executable.

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In view of the foregoing reasons, the following;

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ORDER

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(i) Writ petition is allowed .

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(ii) The order dated 21.11.2024 passed in Ex.No.2857/2013 on the file of XIX Additional City Civil and Sessions Judge, Bengaluru, is hereby set aside.

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(iii) The execution No.2857/2013 is restored to file for fresh consideration subject to the observations made hereinabove.

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(iv) No order as to cost.

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Sd/(K. V. ARAVIND) JUDGE

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DDU

Sri.Rudraiah.C v. the State of Karnataka

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Sri.Rudraiah.C v. the State of Karnataka

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