- 1 - HC-KAR NC: 2025:KHC:29838 WP No. 10495 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 10495 OF 2025 (GM-CPC) BETWEEN: SRI. MANJUNATH @ MANJA, S/O. LATE SRI. CHENNIGARAYAPPA, AGED ABOUT 55 YEARS, R/AT NO.4641, GUMMANAKOLLI, KUSHALNAGARA TALUK, KODAGU DISTRICT - 571 234. …PETITIONER (BY SRI. VENKATESH R BHAGAT., ADVOCATE) AND: 1. SRI. B.M.MUTTAPPA, S/O. SRI. B. M. MADAIAH, AGED ABOUT 58 YEARS, 2. SRI. B. M. MADAIAH, S/O. LATE SRI. MUTHANNA, AGED ABOUT 73 YEARS, BOTH ARE RESIDING AT NEAR OLV CONVENT, CHOWDLU VILLAGE – 571 236, SOMWARPET HOBLI AND TALUK. 3. SMT. NANJI @ NANJAMMA, W/O. LATE SRI. SEENA @ SRINIVAS, AGED ABOUT 50 YEARS, Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:29838 WP No. 10495 of 2025 4. SRI. GANESHA, S/O. LATE SRI. SEENA @ SRINIVAS, AGED ABOUT 31 YEARS, 5. SMT. CHANDRA, D/O. LATE SR. SEENA @ SRINIVAS, AGED ABOUT 30 YEARS, ALL ARE R/AT GUMMANAKOLLI VILLAGE AND POST, SOMWARPET TALUK - 571 234. …RESPONDENTS (BY SRI. PONNANNA M B., ADVOCATE) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS PERTAINING TO IMPUGNED ORDER DATED 11.03.2025 PASSED BY THE CIVIL JUDGE, KUSHALNAGAR IN EX. NO.183/2000 ON I.A NO. XXXII FILED UNDER SEC 26(1) R/W SEC 151 OF C.P.C AT ANNEXURE – A AND ETC., THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioner is before this Court calling in question an order dated 11.3.2025 passed in Execution Petition No. 183/2000 on an application I.A.No.XXXII filed under Section 26(1) r/w Section 151 of C.P.C. The plaintiff- petitioner is judgment debtor in O.S. No. 140/1999. O.S. - 3 - HC-KAR NC: 2025:KHC:29838 WP No. 10495 of 2025 No. 140/1999 is preferred by the respondent-the decree holder seeking decree of declaration and possession. The suit comes to be decreed on 5/2/2000. The decree is said to be exparte. On the decree so passed on 5/2/2000, on 16.10.2000, execution petition is preferred by the decree holder and the said execution petition is still pending for the last 25 years. After about 14 years, the present petitioner the judgment Debtor institutes O.S.No.78/2014 seeking declaration and injunction. The said suit also comes to be decreed on 29/11/2023. In the interregnum, the executing court issues a delivery warrant for the purpose of measurement and execution of the decree of the year 2000. The said order dated 11.3.2025 has driven the petitioner- judgment debtor No.4 before this Court in the subject petition. 2. The learned counsel Sri Venkatesh Bhagat appearing for the petitioner would vehemently contend that the decree holder has secured a decree for some other property and he wanting to execute the said decree on the property belonging to the present petitioner-the judgment debtor. He would take this Court through the earlier suit - 4 - HC-KAR NC: 2025:KHC:29838 WP No. 10495 of 2025 that filed by him in O.S. No. 78/2014, which comes to be decreed. The decree of which is not put to execution by the petitioner. In the interregnum, the orders are passed which according to the learned counsel for the petitioner, on the face of it, illegal. He would also project a ground that, O.S.No.1/1992 was preferred by the petitioner-decree holder which comes to be dismissed and therefore suppressing the said dismissal, a separate suit in O.S.No. 140/1999 is preferred. On all these grounds, he would submit that the house of the present petitioner is being taken away by the respondent-decree holder after notwithstanding the fact that the decree secured is of some other property. 3. The learned counsel appearing for the decree holder would again take this Court through the document appended to the petition to demonstrate that the decree secured by the judgment debtor in O.S.No. 78/2014 is not put to execution, is in the particular premises which comes in survey number 46/P6. - 5 - HC-KAR NC: 2025:KHC:29838 WP No. 10495 of 2025 4. The learned counsel would submit that the property of the decree holder is in survey number 46/4 and would not interfere with the possession or disturb the possession in survey number 46/P6. 5. The learned counsel for the petitioner would now join issue by contending that the grant of Ashraya house to the present petitioner depicts that it is Sy.No.46/1 which is later changed to Sy.No.46/P6 and would submit that the house of the present petitioner should not be disturbed which is standing on Sy.No.46/P6 6. I have given my anxious consideration for the arguments advanced by the learned counsel appearing for the parties and perused the material on record. 7. The afore narrated facts are not in dispute. The issue lies in a narrow compass as to whether the order would require any interference at the hands of this court. 8. The execution is filed by the decree holder in which the schedule reads as follows: SCHEDULE - 6 - HC-KAR NC: 2025:KHC:29838 WP No. 10495 of 2025 An area of 0.05 acres of house side in Sy.No.46/4 of Gummanakolly Village, Patta standing in the name of the plaintiff bounded on the East-Road, West-Remaining land in sy.No.46/1, North-Remaining land in sy.No.46/1 and South-Road." 9. The decree though exparte is immediately put to execution. Likewise the present petitioner also prefers a suit for declaration and injunction which comes to be decreed. In the said judgment and decree, the case of the petitioner qua the respondent is also noticed by the concerned court on the issue number 3 the reason so rendered by the concerned court reads as follows: "ISSUE NO.3 18. The defendant in the written statement contended that the defendant is the owner of the property bearing No.46/4 measuring 5 cents of house site situated at Gummanakolli village, Somwarpet Taluk, Kodagu District. The said property granted to the defendant as per the order No.119/87-88 by the Tahasildar of Somwarpet and in this regard the Saguvali Chit dated 3.3.1998 has been issued in favour of the defendant. Immediately after the grant she surveyed the said property and took possession of the said property. When the defendant shifted her residence to the Somwarpet the mother of the plaintiff and Smt. - 7 - HC-KAR NC: 2025:KHC:29838 WP No. 10495 of 2025 Nanjamma and her son without having lawful right, title owner ship and interest they were trespassed into trespassed into the property of the defendant measuring 5 cents of house site in Sv. No.46/4 and in the said property. They have trespassed into the they put up and unauthorized and illegal construction property of the defendant with an intention to convert the property into their own. Hence, the defendant has filed a suit against the plaintiff in O.S.No. 1/92 before the Hon'ble Munsiff Court at Somwarpet for declaration and possession in respect of the property measuring 5 cents of house site in Sy.No. 46/4 was dismissed for its wrong description. Against the said order defendant preferred and appeal in R.A., No. 38/94 and during the hearing of the appeal the defendant has withdrawn the suit with a permission to fresh suit with a direction to revenue authorities to correct the boundaries of 5 cents of house site in After the Sy.No.46/4 of Gummanakolli village. boundaries are rectified by the revenue authorities the defendant filed a suit seeking declaration and delivery of possession in respect of the Sy.No.46/4 against the plaintiff along with Smt. Nanjamma and her son in O.S.No.40/99 and an exparte decree was passed in the said suit on 5.2.2022. On 13.10.2000 the defendant filed Ex.Ptn 183/-2000 seeking delivery of the possession of the said property which is in the illegal possession of the plaintiff and others and the same is pending for disposal Since, the plaintiff not have challenged the said Judgment and Decree O.S No. 140/99 it become final. Hence the present suit This court has is hit by the principles of res- - 8 - HC-KAR NC: 2025:KHC:29838 WP No. 10495 of 2025 judicata perused entire records in the present suit admittedly, the defendant has filed O.S.No 140/99 in respect of Sy No. 46/4 But, the plaintiff has filed this suit in respect of Sy.No. 46/P6 The earlier suit filed by the defendant was for the relief of declaration and possession. This is the suit seeking the relief of declaration and injunction. To attract the principles of re judicata matter in issues and suit schedule properties in both suits shall be in the same. But the suit schedule properties has admittedly, or the different. Therefore the present suit is not barred by of res-judicata. Accordingly this court answered Issue No.3 in the Negative." 10. The concerned court in a suit instituted by the present petitioner himself would observe that the O.S.No. 140/1999 is in respect of survey number 46/4, while the suit of the plaintiff in O.S. No. 78/2014 is in respect of survey number No.46/P6. The learned counsel for the petitioner would not dispute the decree qua in survey number 46/P6. 11. As observed hereinabove the decrees that are obtained are entirely different. Decree in O.S. No. 140/1999 and decree in O.S.No. 78/2014, as the suit schedule properties in both the suits are different. One is - 9 - HC-KAR NC: 2025:KHC:29838 WP No. 10495 of 2025 survey number No. 46/4 which is of the decree holder and one in survey number No. 46/P6 which is of the present petitioner the plaintiff in O.S. No. 78/2014. 12. In that light when the decrees are different and the petitioner not having put his decree to execution cannot now contend that the execution proceedings instituted by the decree holder in O.S.No.140/1999 in execution 183/2000 is for a different property. It shocks that, in a suit for declaration and possession which was decreed in the year 1999 is still languishing in the executing court for the last 25 years. 13. No fault can be found with the order that is passed by the concerned court which is impugned in the subject petition. In the light of the execution petition being of the year 2000 pending for the last 25 years, I deem it appropriate to infuse finality of the proceedings with a direction to the concerned court to conclude the execution proceedings with an outer limit of 6 weeks if not earlier. - 10 - HC-KAR NC: 2025:KHC:29838 WP No. 10495 of 2025 14. For the aforesaid reasons, I deem it appropriate to dispose the petition as afore-directed. Ordered accordingly. Sd/- (M.NAGAPRASANNA) JUDGE HR List No.: 1 Sl No.: 43