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2008 DIGILAW 146 (KAR)

K. N. Srinivas Murthy v. K. N. Venkatanaga Setty

2008-02-28

N.K.PATIL

body2008
JUDGMENT :- (This CRP is filed U/Sec 115 CPC against the order dated 3.8.2004 passed in Ex.No.41/99, on the file of the Civil Judge (Jr.dn.), Gubbi, Dismissing the petition filed by the petitioner herein to execute the decree passed by the Hon’ble high Court of Karnataka in R.S.A. No.445/93.) Petitioners, being aggrieved by the impugned judgment and order dated 3rd August 2004 passed in Execution No.41-1999 on the file of the learned Civil Judge (Jr.Dvn.) and JMFC at Gubbi, have presented the instant revision. Further, petitioners have sought to issue appropriate direction to issue an appropriate warrant to the surveyor to deliver possession of 01 acre 39 guntas of land in Sy.No.101/1 and 101/2 in Changavikaval Grama, chandrashekharapura Village, Gubbi Taluk To the Plaintiffs – decree holders. 2. The undisputed facts of the case are that, these two petitioners had earlier filed a Regular Second Appeal before this Court in R.S.A. No.445/1993 being aggrieved by the judgment and decree passed in R.A. No.118/1986 dated 24th February 1993, setting aside the judgment and decree passed in O.S. No.99/1975 on the file of the Munisiff and JMFC, Gubbi dated 8th September 1986. The said matter had come up for consideration before this Court and this Court, after hearing, allowed the Regular Second Appeal filed by petitioners and the order passed by the Lower Appellate Court was set aside declaring that, the plaintiffs – petitioners are entitled to 01 acre 39 guntas and defendant - respondent herein is entitled to remaining 01 acre in Sy.No.101 and 102 situate at Changavi Kaval Grama, Chandrashekarapura Village, Gubbi Taluk as mentioned at item No.4. Further this Court ordered and decreed that, the Executing Court shall appoint a Commissioner and divide the property with the help of a surveyor and deliver possession of 01 acre 39 guntas in the lands to the plaintiffs – petitioners and 01 acre of land to the defendant – respondent. Further, this Court ordered and decreed that, while directing possession of 01 acre 39 guntas, the earlier enjoyment of 20 guntas by the first plaintiff on the northern side and 19 guntas on the southern side by the second plaintiff shall be delivered as far as possible taking into consideration the equity and accordingly, disposed of the Regular Second Appeal filed by petitioners herein. After disposal of the Regular Second Appeal filed by petitioners herein, petitioners herein have failed the execution petition in Ex.No.41/1999 on the file of the learned Civil Judge (Junior Division) at Gubbi. The said matter had come up for consideration before the Executing Court on 3rd August 2004. The Executing Court, after hearing, has dismissed the execution petition filed by petitioners is not maintainable, in the present form. Being aggrieved by the impugned order passed by the Executing Court, petitioners herein felt necessitated to present the instant revision petition, seeking appropriate relief’s, as stated supra. 3. I have heard learned counsel appearing for petitioners and learned counsel appearing for respondent. 4. After careful perusal of the impugned order passed by the Executing Court, it is manifest on the face of the said order that, the Executing Court has committed an error of law resulting in serious miscarriage of justice in as much as it has proceeded to pass the impugned order contrary to the judgment and decree passed by this Court in R.S.A. No.445/1993 disposed of on 9th February 1998 wherein this Court has specifically ordered and decreed that, petitioners-plaintiffs are entitled to 01 acre 39 guntas and the respondent – defendant is entitled to remaining 01 acre in Sy.No.101 and 102 situate at Changavi Kaval Grama, chandrashekarapura Village, Gubbi Taluk as mentioned at item No.4. Further, this Court had ordered and decreed that, while directing 01 acre 39 guntas, the earlier enjoyment of 20 guntas by the first plaintiff – first petitioner on Northern side and 19 guntas on southern side by the 2nd plaintiff – Second petitioner shall be delivered as far as possible, taking into consideration the equity. In spite of a clear-cut and unambiguous direction issued by this Court, by ordering and decreeing the Regular Second Appeal filed by petitioners, the Executing Court has gone beyond the jurisdiction vested in it and pointed out that, in the execution petition, the decree holders have prayed for possession of only 39 guntas which is presently in possession of the respondent – defendant and they have not whispered about other 01 acre of the said Survey Number. Further, the Executing Court has observed that, after reading the judgment of this Court in the Regular Second Appeal, as a whole, particularly paragraphs 7, 9 and 10, this Court has made it clear that, while delivering the possession of 01 acre 39 guntas to the plaintiffs as far as possible, the Executing Court has to deliver 20 and 19 guntas which were earlier enjoyed by first and second plaintiffs respectively. When the Executing Court has pointed out that, the Execution Petition filed before it by petitioners is only in respect of 39 guntas and not 01 acre 39 guntas, the Executing Court is not justifiable in dismissing the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 01 acre 39 guntas, the earlier enjoyment of 20 guntas by the first petitioner on the northern side and 19 guntas by second plaintiff on the southern side shall be delivered as far as possible, taking into consideration the equity. When this Court has given a crystal clear direction, the Executing Court ought not to have gone beyond the jurisdiction vested in it and preceded to pass the order holding that, the Execution petition is not maintainable in its present form. The said reasoning given by the Executing Court cannot be sustained and hence, it is liable to be set-aside at the threshold itself. 5. In the light of the facts and circumstances of the case, as stated above, the instant revision petitioner filed by petitioners is disposed of as follows: I] The revision petition filed by petitioners is allowed in part; II] The impugned order passed by the Executing Court dated 3rd August 2004 passed in Executing No.41/1999 on the file of the learned Civil Judge, (Junior Division) Gubbi, is hereby set aside; III] Matter stands remitted back to the Executing Court to reconsider the matter afresh and to take appropriate decision afresh in full compliance of the judgment and decree passed by this Court in the Regular Second Appeal and after affording an opportunity to petitioners and respondent and dispose of the same, as expeditiously as possible, at any rate within a period of six months from the date of receipt of a copy of this order.