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2019 Supreme(Kar) 1882
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
SREENIVAS HARISH KUMAR, HEMANT CHANDANGOUDAR, JJ.
Chandamma W/o late Basappa Ramgond - Appellant
Versus
Shivalingappa S/o Gireppa Ramgond - Respondents
WRIT APPEAL No.200574/2018 (GMCPC)
Decided On : 19-12-2019
For the Appellant :Sri Ameet Kumar Deshpande, Advocate
For the Respondent:Sri Manvendra Reddy, Advocate
Headnote:
Execution of Decree - Maintainability of Writ Appeal - Order XXI Rule 32 of CPC - Section 146 of CPC - [VIOLATION OF DECREE] - [EXECUTION OF DECREE] - [Order XXI Rule 32 of CPC, Section 146 of CPC] - The court discussed the maintainability of a writ appeal in an execution case and the legal provisions under Order XXI Rule 32 of CPC and Section 146 of CPC. It highlighted the right of a legal representative to execute a decree and the requirement to establish title based on a will. The court emphasized that a legal representative is competent to execute the decree and can do so without filing a separate suit for declaration.
Fact of the Case:
The appellant, as the legal representative of Chandamma, sought to execute a decree for injunction against the judgment debtors. The executing court dismissed the execution petition, leading to a writ appeal challenging the dismissal.
Finding of the Court:
The court found that the writ appeal was not maintainable and dismissed it. It also upheld the argument that the appellant could not initiate a second execution without challenging the dismissal of the first execution petition.
Issues: The issues included the maintainability of the writ appeal, the right of the appellant to execute the decree as a legal representative, and the requirement to establish title based on a will.
Ratio Decidendi: The court held that the writ appeal was not maintainable and emphasized the need for the appellant to challenge the dismissal of the first execution petition. It also highlighted the competence of a legal representative to execute a decree and the requirement to establish title based on a will.
Final Decision: The court dismissed the writ appeal, emphasizing that the appellant's right to execute the decree had not extinguished and that he could institute an execution petition in case of any future violation of the decree.
JUDGMENT :
This writ appeal is at the instance of decree holder in execution case 47/2012 on the file of Senior Civil Judge, Sedam. The brief facts necessary for disposal of this writ appeal are as follows:
One Chandamma instituted a suit OS 70/1992 in the court of Principal Civil Judge, Gulbarga claiming the reliefs of declaration of her title and permanent injunction in respect of certain extent of agricultural lands in Sy.Nos.5/1, 18, 26 and 64/1 and a house property at the village Kukunda, Sedam Taluk. The judgment debtors in the execution petition were the defendants in the suit. The said suit came to be decreed in her favour on 28.02.1992 and aggrieved by the same, the judgment debtors preferred an appeal, R.A.3/1997 to the court of District Judge, Gulbarga. The said appeal was dismissed on 20.07.2001. The third judgment debtor namely Sharnappa had also instituted a suit O.S.15/1992 in the court of Civil Judge (Jr.Dn.), Sedam against Chandamma seeking a declaration that he was her adopted son. The said suit was dismissed on 15.01.2002 and aggrieved by the same he preferred an appeal R.A.219/2002 to the court of Civil Judge (Sr.Dn.). During the pendency of this appeal, Chandamma died and the appellant herein namely Basavaraj came on record as her legal representative. The appeal R.A.219/2002 came to be dismissed on 06.03.2008. Then the third judgment debtor preferred second appeal, RSA 1341/2008 to the High Court and it was also dismissed on 30.08.2010.
2. Alleging that the judgment debtors interfered with his possession and thus they violated the decree in O.S.70/1992, the appellant initiated execution under Order XXI Rule 32 of Civil Procedure Code (‘CPC’, for short) and sought for civil imprisonment of the judgment debtors. The executing court dismissed the execution petition as not maintainable by passing an order on 09.10.2017. Aggrieved by the same, the decree holder preferred a writ petition, W.P.208202/2017 before this court and since the said writ petition was dismissed on 27.06.2018, the decree holder has preferred this writ appeal.
3. We have heard the arguments of Sri Ameet Kumar Deshpande, the learned advocate appearing for the appellant, and Sri Manvendra Reddy and D.P. Ambekar, learned advocates appearing for the respondents.
4. The reasons for dismissing the writ petition are that the decree holder had earlier filed execution petition 12/2009 complaining of violation of the decree in O.S.70/1992 and the said execution petition was dismissed. Execution petition 47/2012 was the second execution petition filed by the decree holder for the same relief in respect of the same decree and therefore the second execution petition is not maintainable. Moreover, the decree holder has not brought to the notice of the court about dismissal of the first execution petition, there was suppression of facts.
5. Sri Ameet Kumar Desphande argued the following points.
(a) The executing court has erred grossly in dismissing the execution petition as not maintainable. Whenever a decree for injunction is violated willfully by judgment debtors, the decree holder can execute it according to provisions of Order XXI Rule 32 of CPC. For every time violation of the decree, execution can be initiated and the dismissal of the first execution did not come in the way of decree holder initiating execution for the second time in connection with subsequent attempt made by the judgement debtors to violate the decree. The executing court and the writ court have failed to notice this legal position.
(b) The executing court has wrongly held that the appellant cannot execute the decree without establishing his title on the basis of will by filing a separate suit. Appellant was brought on record during pendency of the appeal as Chandamma had executed a will in his favour. Before impleading him as legal representative of Chandamma, the court held an enquiry and only after satisfying that he was the legatee of Chandamma, he was permitted to be brought
