- 1 - HC-KAR NC: 2025:KHC-D:10902 WP No. 114643 of 2019 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 28TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL WRIT PETITION NO. 114643 OF 2019 (GM-CPC) BETWEEN: THE BHUVANESHWARI GRAMODYOG SANGH, SANKRATTI VILLAGE, TQ: ATHANI, DIST: BELAGAVI, REPRESENTED BY ITS CHAIRMAN, SRI. PADMANABH S/O. GANESH PURANIK, AGE: 78 YEARS, OCC: CHAIRMAN, R/O. HARUGERI VILLAGE, TQ: RAIBAG, DIST: BELAGAVI, PRESENTLY R/AT: NO.240, "PARNA" NISARGA LAYOUT, BEHIND TIWAC QUARTERS, ATTIKOLLA, DHARWAD. REPRESENTED BY HIS GPA HOLDER SRI. GANESH S/O. PADMANABH PURANIK, AGE: 38 YEARS, OCC: SERVICE, R/O. NO.240, "PARNA" NISARGA LAYOUT, BEHIND TIWAC QUARTERS, ATTIKOLLA, DHARWAD-580007. …PETITIONER (BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE) AND: 1. SMT. SUSHILA W/O. PRABHU KATTIMANI, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O. TERADAL, TQ: JAMAKHANDI, DIST: BAGALKOTE-587315. Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:10902 WP No. 114643 of 2019 2. SMT. MANGALA W/O. HANAMANTH NAVI, AGE: 35 YEARS, OCC: HOUSEHOLD WORK, R/O. RAIBAG, TQ: RAIBAG, DIST: BAGALKOT-591317. 3. GURUPAD S/O. PRABHU @ PARAPPA KATTIMANI, AGE: 37 YEARS, OCC: BUSINESS, R/O. HARUGERI VILLAGE, TQ: RAIBAG, DIST: BELAGAVI-591317. 4. MALLIKARJUN S/O. PRABHU @ PARAPPA KATTIMANI, AGE: 34 YEARS, OCC: BUSINESS, R/O. HARUGERI VILLAGE, TQ: RAIBAG, DIST: BELAGAVI-591317. 5. SMT. LAXMI D/O. PRABHU @ PARAPPA KATTIMANI, AGE: 32 YEARS, OCC: BUSINESS, R/O. TERADAL VILLAGE, TQ: JAMAKHANDI, DIST: BAGALKOTE-587315. 6. CHANNAPPA S/O. PRABHU @ PARAPPA KATTIMANI, AGE: 29 YEARS, OCC: BUSINESS, R/O. TERADAL VILLAGE, TQ: JAMAKHANDI, DIST: BAGALKOTE-587315. …RESPONDENTS (BY SRI. RAJASHEKAR BURJI, ADV. FOR R1 TO R6) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT ORDER OR DIRECTION IN THE NATURE OF WRIT OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED 16.01.2016 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, RAIBAG IN EX.PET.NO.31/2008 DISMISSING THE EXECUTION PETITION FILED BY THE PETITIONER AS PER ANNEXURE-A AND DIRECT THE EXECUTING COURT IN EP NO.31/2008 TO TAKE APPROPRIATE MEASURE TO VACATE THE PETITION PROPERTY BY THE RESPONDENTS ALLOWING THE EXECUTION PETITION NO.31/2008 AND ETC. - 3 - HC-KAR NC: 2025:KHC-D:10902 WP No. 114643 of 2019 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) This petition is filed seeking following reliefs: “i. Issue a writ order or direction in the nature of writ of certiorari to quash the impugned order dated: 16.01.2016 passed by the Principal Civil Judge and JMFC Raibag in Ex.Pet.No.31/2008 dismissing the execution petition filed by the petitioner as per Annexure-A and direct the executing court in EP.No.31/2008 to take appropriate measure to vacate the petition property by the responsible allowing the Execution Petition No.31/2008. ii. Pass any other proper and suitable order which this Hon’ble court deems it fit and proper in the facts and circumstances of the case.” 2. Sri.Shriharsh A. Neelopant, learned counsel appearing for the petitioner submits that the petitioner filed a suit for relief of declaration, possession and injunction with regard to the suit schedule property which came to be decreed. The respondents preferred an appeal which was allowed and being aggrieved, the petitioner filed RSA, which came to be allowed. It is submitted that this Court in RSA.No.832/1992 clearly recorded the finding that the respondents has no claim - 4 - HC-KAR NC: 2025:KHC-D:10902 WP No. 114643 of 2019 whatsoever with regard to the plot No.2 and directed that with regard to the identification of plot No.2, the petitioner has to work out the remedy in execution proceedings. It is further submitted that the petitioner/decree holder filed Execution Petition No.31/2008. In the said proceedings the Court Commissioner was appointed and he has submitted the report and as per the Court Commissioner’s report, the boundaries shown in the decree tallies with the report of the Court Commissioner. However, the Executing Court dismissed the execution petition on the ground that the extent claimed by the petitioner in the decree does not tally with the Court Commissioner’s report and possession of the judgment debtor. It is submitted that the law is well settled that the boundary will prevail over the extent and in view of the settled proposition of law, the Executing Court ought to have considered the execution with regard to the boundaries mentioned in the Court Commissioner’s report and executed the decree. Hence, he seeks to allow the petition. 3. Per contra, Sri.Rajashekhar Burji, learned counsel for the respondents supports the impugned order of the Executing - 5 - HC-KAR NC: 2025:KHC-D:10902 WP No. 114643 of 2019 Court and submits that, as per the Court Commissioner’s sketch, plot No.2, which is claimed by the respondents/judgment debtors is away from the plot claimed by the petitioner/decree holder. It is submitted that the extent claimed by the petitioner in the suit and as per the grant order is 20 x 20 feet. However, as per the Court Commissioner's report, the judgment debtors are in possession of the property shown in green colour of the sketch prepared by the Court Commissioner, measures east-west 32 feet and north-south 13.6 feet. Hence, the property claimed by the petitioner does not exist and the respondents are not in possession of the same. Hence, he seeks to sustain the impugned order of the Executing Court. 4. I have heard the arguments of the learned counsel for the petitioner, the learned counsel for the respondents and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced on both sides. 5. The records indicate that the petitioner filed OS.No.27/1982 seeking relief of declaration of his right, title over plot No.2 called out of Survey No.1 of Harugeri Village and - 6 - HC-KAR NC: 2025:KHC-D:10902 WP No. 114643 of 2019 consequential relief of possession and permanent injunction. The said suit came to be decreed on 07.12.1988. The respondents preferred the regular appeal which came to be allowed. Being aggrieved, the petitioner preferred RSA.No.32/1992 which came to be allowed. The operative portion of the Judgment and decree of this Court in RSA.No.832/1992 reads as under: “2. On the basis of the written statement wherein the defendant has admitted that plot No.2 belong to the plaintiff there can be no difficultly in granting a decree in respect of plot No.2 in favour of the plaintiff. But the question on identification is taken out. Though a Commissioner appears to have been appointed, he has not drawn the sketch. So, while confirming the decree of the appellate court, the second appeal is allowed and I direct both the parties to move the execution court to appoint a Commissioner to locate and identify plot No.2 with available records and handover plot No.2 to the plaintiff. If the defendant is not occupying even an inch of plot No.2 he can be spared.” 6. This Court has recorded the finding that there is no difficulty in granting the decree in favour of the petitioner/plaintiff for plot No.2, but the question on identification is taken out. The same shall be sorted out in the execution proceedings. There is no dispute that the petitioner got the decree of declaration of title, possession and injunction insofar as plot No.2. To execute the said decree, the petitioner - 7 - HC-KAR NC: 2025:KHC-D:10902 WP No. 114643 of 2019 filed EP.No.31/2008 before the Principal Civil Judge and JMFC, Raibag. The Executing Court under the impugned order considered the Court Commissioner’s report and dismissed the same. The Court Commissioner’s report indicates that the Court Commissioner has referred the sketch/map dated 25.12.1978 and based on the same, he conducted a local inspection, marked the suit schedule property in green colour, showing the chakbandi. The report of the Court Commissioner and the sketch annexed thereto indicate that the description shown by the Court Commissioner tallies with the description of the suit schedule property. The Executing Court recorded the finding that though the boundaries shown in the Court Commissioner’s report tallies with the boundaries of the suit schedule property, the extent would not tally. In my considered view, the Executing Court has committed a grave error in recording such a finding. It is trite law that the boundaries will prevail over the extent. Assuming that if the extent claimed by the petitioner as per the decree does not tally with the actual extent available, then the Executing Court ought to have proceeded based on the chakbandies shown in the Court Commissioner’s report. Hence, in my considered view the Executing Court recording the finding - 8 - HC-KAR NC: 2025:KHC-D:10902 WP No. 114643 of 2019 that the extent claimed by the petitioner is measuring 20 x 20 feet and the possession of the Judgment debtors is measuring east-west 32 feet and north-south 13.6 feet is incorrect. The extent may vary. The Executing Court is required to re-look into the matter based on the Court Commissioner’s report. Hence, I am of the considered view that the matter requires reconsideration at the hands of Execution Court. For the aforementioned reasons, I proceed to pass the following: ORDER i) The writ petition is allowed. ii) The impugned order dated 16.01.2016 passed in EP.No.31/2008 passed by the Principal Civil Judge and JMFC, Raibag is hereby set aside. iii) The Execution Petition EP.No.31/2008 is restored. iv) The Executing Court is directed to reconsider the report and find out if the boundaries shown in the Court Commissioner’s report tallies with the suit claimed by the petitioner, then it shall proceed further in the matter in accordance with law. v) No orders as to costs. - 9 - HC-KAR NC: 2025:KHC-D:10902 WP No. 114643 of 2019 vi) It is needless to observe that it is open for the respondents to make necessary objections in accordance with law, if so advised. Sd/- (VIJAYKUMAR A.PATIL) JUDGE ABK /CT-AN List No.: 1 Sl No.: 6