Sri.Rajendra.,

learned

counsel

on

behalf

of

Sri.S.V.Prakash.,

for

petitioner

and

Sri.Varadaraj

R.Havaldar., learned counsel for respondent have

appeared in person.

2.

The brief facts of the case are stated as

under:

Petitioner

-

M.B.Rameshappa

instituted

suit

against the respondent in the Court of Principal Civil

Judge & Jr.Dn., and JMFC, Shimoga, in O.S.701/2010

for declaration and permanent injunction on the ground

that the construction undertaken by the respondent on

his property being site No.17 was illegal and un-

authorized.

The said suit in O.S.701/2010 was referred to Lok-

Adalath for possible amicable settlement between the

parties. In the Lok-Adalath, the parties settled the

matter by filing joint memo. As per joint memo of

compromise vide para 2, it is stated that the parties

shall not interfere with the possession of each other

3

sites in any manner. Plaintiff at the time of construction

of his building shall not exceed his site No.16 limit of

15 x 80 feet. Plaintiff shall not encroach upon the offset

left by the defendant. Para 3 of the joint memo further

states that the defendant is at liberty to continue his

construction work.

In view of such compromise, the Lok-Adalath

passed decree/award on 25.08.2010.

Plaintiff/decree

holder, M.B.Rameshappa, filed

Execution Petition No.26/2011 in the Court of Principal

Civil Judge & JMFC, Shimoga under Section 47 read with

Section 151 of CPC and prayed for an order prohibiting

the defendant/judgment debtor from making any

construction over the triangular strip of land existing in

between his site and that of the judgment debtor. The

contention of the decree holder is that such triangular

strip belongs to him.

The defendant/judgment debtor appeared in the

said Execution case and contested I.A.No.2 filed by the

4

decree holder by filing statement of objections. One of

the objections of the judgment debtor is that in

O.S.701/2010 the plaintiff/decree holder had not taken

contention that his site is formed slantly and that he

and his neighbors made their sites straight and a space

is left towards south of his site and if that space is

utilized by him, the decree holder cannot make his site

straight etc.,

The

judgment

debtor/defendant

also

filed

I.A.No.IV for vacating the prohibitory order passed

against him. The decree holder /plaintiff to prove his

case, examined himself as PW1 and also witnesses as

PW2 and PW3 and produced documents marked as

Exs.P1 to P8. The judgment debtor/defendant also

examined himself as RW1 and examined one witness as

RW2 and produced documents marked as Exs.R1 to R7.

The Court after considering all aspects, dismissed

IA No.II filed by the decree holder and allowed I.A.No.IV

thereby

prohibitory

order

dated:03.03.2011

was

5

vacated. The reasoning of the Executing Court inter-alia

is as under:-

a)

Decree

holder

as

PW1

in

the

cross-

examination has admitted that there is no

vacant space in existence in between the

sites of himself and the judgment debtor.

b)

Compromise decree as well as joint memo

filed in O.S.701/2010 do not disclose about

the vacant space alleged to have been left in

between the sites of the decree holder and

the judgment debtor.

c)

Alleged vacant space is not the subject

matter of the joint memo as well as

compromise decree.

d)

The decree holder has utterly failed to prove

the existence of vacant space in-between his

site and the site of the judgment debtor.

This

order

of

the

Executing

Court

dated:28.03.2013 passed in Execution Case No.26/2011

has not been challenged by the Decree holder.

Subsequent

to

the

passing

of

the

order

dated:28.03.2013

in

Execution

case

No.26/2011,

despite the fact that the application filed by the decree

6

holder was dismissed by the Executing Court, the

decree holder again filed Execution Petition under Order

21 Rule 11 of CPC praying for attachment and sale of

moveable assets of the Judgment Debtor and his arrest.

In the Execution, the Judgment Debtor appeared and

objected to the same by filing written stateme