The present petitioner who was first judgment debtor

in Execution Case No.110/2009, on the file of the learned II

Additional Civil Judge and JMFC, at Shivamogga,(hereinafter

for brevity referred to as “the Executing Court”), has filed

this writ petition, challenging the orders dated 19-03-2014

and 04-09-2014 passed in the said matter.

2. The respondent No.1 is being represented by his

learned counsel. Notice to respondent No.2 is dispensed

with. This matter was earlier connected with Writ Petition

No.13233/2014. However, at the submission made by the

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learned counsels from both side, this writ petition has now

been disconnected and is taken up separately.

3. The undisputed facts are that, the present

respondent No.1, as a plaintiff, had instituted a suit against

the present petitioner and present respondent No.2,

arraigning them as defendant Nos.1 and 2 in Original Suit

No.184/1994, in the Court of the I Additional Civil Judge

(Jr.Dn.) at Shimoga, for the relief of permanent injunction,

seeking to restrain the defendants or anyone claiming

through them from interfering in his alleged peaceful

possession of the suit schedule immovable properties. The

said suit came to be decreed on 28-08-2004. Aggrieved by

the same, the defendants filed an appeal in R.A.No.73/2004

which came to be dismissed on its merit on 24-07-2006.

Thereafter, alleging that the defendants have encroached

some portion of his property and have thus committed

breach of the decree, the decree holder/plaintiff filed an

Execution Petition in Execution Case No.110/2009. The

Executing Court observing that the possession of the

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alleged encroached portion of the property has been

delivered through the process of the Court by Amin to the

decree holder, closed the Execution petition as decree is

satisfied on 19-03-2014. Thereafter, the present petitioner

who was judgment debtor No.1 (decree holder No.1) filed

an application in I.A.No.8 under Section 151 of the Code of

Civil Procedure, 1908 (hereinafter for brevity referred to as

“the CPC”), seeking to recall the order dated 19-03-2014

and to provide an opportunity to submit their objection to

the report of the process server/Amin and hear the

judgment debtor on the same. The Executing Court, by its

brief order dated 04-09-2014 observing that, the delivery

warrant was executed on 18-03-2014 and stay was granted

by the High Court on 19-03-2014 which was subsequent to

delivery of the property, hence, unless there is an order for

restoration of the possession, no purpose would be served

by re-opening the case, closed the petition. It is challenging

those two orders dated 19-03-2014 and 04-09-2014, the

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present writ petition has been filed before this Court by the

judgment debtor No.1 in the Executing Court.

4. Learned counsel for the petitioner in his brief

argument submitted that, the Executing Court which had

taken I.A.No.8 on record and had issued notice to the

decree holder on the said I.A.No.8, was incorrect in not

hearing the applicant/Judgment debtor No.1 on I.A.No.8,

but proceeding in closing the Execution Case, again without

even passing any order on I.A.No.8, either allowing it or

rejecting it on merit.

5. Per contra, learned counsel for the respondent

No.1 submitted that, the very reading of the order dated

04-09-2014 would go to show that I.A.No.8 has not been

entertained by the Executing Court, as such, the impugned

order does not warrant any interference by this Court.

6. Between the same parties, one more writ petition

is pending wherein the present petitioner as a writ

petitioner in the said writ petition No.13233/2014 has

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challenged rejection of his I.A.No.7 seeking dismissal of the

petition in view of the report of the Court Commissioner and

over-ruling his main objection to the Execution petition.

However, thereafter, by virtue of subsequent development,

in the same execution petition, after the judgment debtor

No.1 (present petitioner) filing I.A.No.8 which resulted in

the out