GIRIJA POOJARTHI Vs. KOTA SRILAKSHMI URALA

JUDGEMENT

(1.) Aggrieved by the order passed in I.A.No.28 in Ex.P.No.06/2008 dtd. 15/10/2022 by the Principal Civil Judge (Junior Division), Kundapura, defendant No.7 in the suit is before this Court.

(2.) Before considering the impugned order the factual matrix of the case are that the suit is filed for recovery of possession that is O.S.No.374/1999 and that came to be decreed on 24/7/2007. Then, in the year 2008, the decree holder has initiated the execution proceedings. The Executing Court had issued the delivery warrant on 5/11/2016. Basing on the earlier order dtd. 8/7/2016, when the bailiff has filed a report on 9/8/2016 stating that the property cannot be identified, I.A.No.14 is filed by the decree holder seeking for assistance of the surveyor to identify the suit schedule property. In that the Court below had passed an order that as could be seen from the materials placed before the Court shows that the Court observed that JDr.No.7 is fighting tooth and nail on the very same issue which is already decided by the predecessor in office. Even before the Court the very same point is argued. As such to set the point in rest some points are to be clarified which are highlighted by JDr.No.7. The objection filed by JDr.No.4 which is on the similar lines as that of JDr.No.7 was rejected on 28/3/2015. Then, the learned counsel for JDr.No.4 had filed Vakalath along with the counsel for JDr.No.7. As they have not questioned the order passed in favour of JDr.Nos.4(a) to (c). Now, they are trying it in another way of getting their counsel to file Vakalath for JDr.No.7 and trying to agitate their defence through JDr.No.7. The defence of the parties is one and the same. The Trial Court had observed that JDr.No.7 had adopted the written statement filed by defendant No.4 in the original suit. JDr.No.7 in spite of giving an opportunity before the Court, has not availed the opportunity and the Court below had observed that having not done the same before the Trial Court in the present Execution Petition JDr.No.7 cannot harp upon the decree passed by the Court stating that the opportunity was not afforded to them by the Court in the original suit. The only remedy that was available to JDr.No.7 is to prefer an appeal before the Appellate Court and to challenge the judgment and decree passed by the Court, but the same is not done by him. As such JDr.No.7 is also debarred from raising ferriferous objections when the decree of the Court is being executed by due process of law.

(3.) The Court had also observed that the bone of contention of JDr.No.7 is that the B schedule shown in the decree is not identifiable and as such the decree is not executable. It is the contention that the DHr in the present execution proceedings cannot take the assistance of the Court or the court amin to identify the B schedule property. It is his contention that the surveyor cannot be appointed to identify the property in the E.P. proceedings. It is also his contention that the building or the superstructure in the property in possession of JDr.No.7 cannot be demolished by use of any machines as the property is not identifiable. The DHr trying to take forcible possession of the property which is not the subject matter of the decree. Then, the Court had considered what is the B schedule property and it is observed by the Trial Court that the Court amin has to identify the 30 cents of land within the boundary shown in the B schedule. Learned counsel for JDr.No.7 argued that the surveyor's plan referred in I.A.No.XIV is not produced before the Court for scrutiny nor the JDr, is aware of the said survey plan. Then, the Trial Court had considered that aspect basing on the judgment dtd. 24/7/2007 in O.S.No.374/1999 and also upon an order passed in TRI.No.3075/79-80 and TRI.No.3061/79-80 and the order passed in TRI.No.3065/78-79. The Trial Court had observed that when the judgment is read in between the lines it makes it abundantly clear that the DHr is referring to the plan/sketch prepared in TRI.No.3065/78-79. JDr.No.7 was also a party to the said judgment now, it cannot be contended that he is not aware of the said plan or sketch. The report of the Court amin goes to show that he requires the assistance of the Taluk Surveyor to identify the same. The said requirement is bonafide one as the Court amin may not be well versed in identifying the property or with the measurements. The very conduct of JDr.No.7 taking frivolous contention in the E.P., goes to show that there is some serious obstruction for executing the decree and accordingly, the Trial Court had allowed I.A.Nos.14 to 16 and the Tahsildar is directed to give assistance of Surveyor to the Court amin to identify the B schedule property within the boundaries shown in the Execution petition as per the plan/sketch in the Land Tribunal case TRI.3065/78-79. Further, the Court amin is directed to execute the decree by getting buildings or superstructures put up by the JDr's. demolished which is in existence in the B schedule land with the help of the mechanical devices and the cost of engaging the same is liable to be borne by the DHr and the Court amin is directed to hand over the vacant possession of the B schedule property to the DHr. The said order was passed on 8/7/2016. Then, I.A.No.18 is filed by the JDr to recall the order dtd. 8/7/2016 whereby the Court below had dismissed the said application. In the order impugned the Court below had observed that learned counsel for the applicants has argued that the B schedule property is not identifiable. The surveyor who had assist the Court bailiff has not properly identified the B Schedule property as per the sketch prepared in TRI.3065/78-79 filed before the Land Reforms Tribunal. There is no verdict on the plaintiff report. Then, considering the said contention, the Trial Court had dismissed the I.As and observed that earlier, the Court below had passed a detailed order. After passing the orders on I.A.Nos.22 and 23, on the very next date of hearing this application is filed to recall the said order without any proper reason. Once the Trial Court had passed the order on interim application, there is no right to reconsider the impugned order. It is well settled that the executing Court cannot go beyond the decree. Already B schedule property has been demarketed by the surveyor. Further, Police aid has also been granted to execute the delivery warrant. The MESCOM is directed to disconnect the electricity supply. The Court bailiff has to comply the Court order without seeking unnecessary explanation. The Court observed that this application is not by a third party, but it is filed by a party to the suit. It also reveals that several applications are filed on various grounds and JDr is playing delay tactics. So far on the verdict on the bailiff report is concerned while passing order on I.A.Nos.22 and 23 has considered bailiff report and finally passed detailed order and the Court below felt that there is no ground to recall the order dtd. 1/2/2019 and accordingly dismissed the application.