- 1 - NC: 2025:KHC:11184 WP No. 51270 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 51270 OF 2017 (GM-CPC) BETWEEN: SRI GOVINDA GOWDA S/O SRI.MONU GOWDA, AGED ABOUT 74 YEARS, R/AT MADAPADY THOTA, TENKA YEDAPADAVU VILLAGE, SHIBRIKERE POST, MANGALURU TALUK-574 144. …PETITIONER (BY SRI NISHITH KUMAR SHETTY.,ADVOCATE) AND: 1. 1(a). SMT SHREEMATHI AMMA SINCE DECEASED BY HER LEGAL REPRESENTATIVE SMT VASANTHI, AGED ABOUT 64 YEARS, D/O SMT. SHRIMATHI AMMA W/O SRI.RAGHU CHOWTA, R/AT MADAPADY THOTA, TENKA YEDAPADAVU VILLAGE, SHIBRIKERE POST, MANGALURU TALUK-574144. Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:11184 WP No. 51270 of 2017 1(b). SRI SHARAN KUMAR JAIN AGED ABOUT 41 YEARS S/O SMT. VASANTHI, R/AT MADAPADY THOTA, TENKA YEDAPADAVU VILLAGE, SHIBRIKER POST, MANGALURU TALUK-574 144. 1(c). SMT SHWETHA D/O SMT. VASANTHI, R/AT MADAPADY THOTA, TENKA YEDAPADAVU VILLAGE, SHIBRIKERE POST, MANGALURU TALUK-574144. …RESPONDENTS (BY SMT. PUSHPARANI.,ADVOCATE FOR R1 (a) AND R1 (c); V/O DATED 24.04.2024 NOTICE TO R1(b) HELD SUFFICIENT) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER VIDE ANNX-A DATED 19.10.2017 MADE ON I.A.NOS.4 AND 5 IN EXECUTION CASE NO.69/2013 BY THE COURT OF PRINCIPAL CIVIL JUDGE, MANGALURU, D.K. AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL - 3 - NC: 2025:KHC:11184 WP No. 51270 of 2017 ORAL ORDER Petitioner who is the decree holder of the judgment and decree passed in O.S.No.612/1997, on the file of Prl. Civil Judge (Jr. Dvn), Mangalore, D.K. (hereinafter referred to as 'the Trial Court') is before this Court being aggrieved by the Order dated 19.10.2017 passed by Execution Court in E.P.No.69/2013, by which the application filed by the petitioner under Section 151 seeking permission to produce a documents in evidence (I.A.No.4) as well as the application filed by him under Order 16 Rule 1 read with section 151 of CPC seeking issuance for summons to witness by name Avin. J, Surveyor Taluk office, Mangaluru (I.A.No.5) have been rejected. 2. Learned counsel for the petitioner taking this Court through the records submit that the petitioner was granted a decree of permanent injunction in the aforesaid suit in O.S.No.612/1997. Seeking execution of the same, petitioner filed the above Execution Case No.69/2013. Petitioner alleging violation of the judgment and decree passed in the above suit had filed an application under Order - 4 - NC: 2025:KHC:11184 WP No. 51270 of 2017 26 Rule 9 of CPC seeking to appoint a Court Commissioner to survey the land and fix the boundaries for the purpose of identifying the extent of encroachment made by the respondents. He further submits that matter was set down for recording evidence of the decree holder, during which time the petitioner preferred aforesaid applications seeking for production of documents and evidence, which are essential for the purpose of establishing the violation of the decree of permanent injunction made by the respondents- judgment debtors. He submits that the Trial Court without appreciating the purpose for which the applications are filed, has rejected the applications rendering the entire process seeking execution decree infructuous. Hence, seeks for allowing of the petition. 3. Heard and perused the records. 4. The judgment and decree passed in O.S.No.612/1997 has attained finality. The allegations made by the petitioner is that the legal representatives of the judgment debtor, have violated the judgment and decree - 5 - NC: 2025:KHC:11184 WP No. 51270 of 2017 of permanent injunction and the applications were filed seeking redressal as provided under sub-Rule (5) of Rule 32 of Order 21. Necessary at this juncture to refer to sub-Rule 5 of Rule 32 of Order 21: ''32. Decree for specific performance for restitution of conjugal rights, or for an injunction.- (5). ''Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree- holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree." 5. The Apex Court in the case of Jai Dayal and others Vs. Kishan Lal Garg reported in 1997 SCC 3765 at paragraph No.8 has held as under: ''8. The question of Section 22 of the Easements Act would arise only if the question arises for the first time. However having allowed the perpetual injunction and mandatory injunction granted by the trial Court to become final, it would be no defence for the respondent to plead that he has not obstructed the passage etc. or that, as found by the High Court, a part of the property in which the present shop was constructed was not part of the property in the original suit. In other words, if a judgment-debtor has suffered the decree, no attempt to circumvent the perpetual injunction and mandatory injunction, can be permitted. If the decree-holder makes any construction clubbing the other adjacent property, property which is part of the subject-matter in the earlier suit, a party cannot and should not, by his action, be permitted to drive the decree for another round of - 6 - NC: 2025:KHC:11184 WP No. 51270 of 2017 adjudication of the rights in the second suit to be settled afresh. In other words, giving such a liberty will amount to encouraging persons to take the law into their own hands and drive the decree-holder to another suit. It can never be facilitated to circumvent the law and relegate the party for tardy process of the civil action. What is needed is an opportunity to obey the injunction. Non- compliance is a continuing disobedience entailing penal consequences. A separate fresh suit is barred under Section 49 of the C.P.C. Under these circumstances, the view of the High Court is clearly in error and appeal is accordingly allowed. The judgment and order of the High Court stand set aside and that of the trial Court and the appellant Court stand restored. No costs. Appeal Allowed." 6. In the light of the provisions of Rule 32 of Order 21 extracted hereinabove and the enunciation of law by the Apex Court. In the instant case since the judgment and decree passed in O.S.No.612/1997 has attained finality and the allegation is made by the petitioner/decree holder of violation of the same by the judgment debtor and his legal representatives who have allegedly encroached upon the suit property, petitioner herein is entitled to seek such remedy as contemplated in the aforesaid provisions of law. If the application sought to be produced in furtherance of seeking of such remedy, the Trial Court shall be present to the same and consider the same in accordance with law. - 7 - NC: 2025:KHC:11184 WP No. 51270 of 2017 7. In that view of the matter, petition is disposed of. Impugned order dated 19.10.2017 passed by the Execution Court is set-aside. 8. The Trial Court is directed to reconsider the said application keeping in mind the aforesaid provisions and law enunciated by Hon'ble Apex Court and pass appropriate order in accordance with law. SD/- (M.G.S. KAMAL) JUDGE RL List No.: 1 Sl No.: 4