T.M. MUNIYAMMA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This petition is filed seeking following reliefs:

(2.) Sri.C.M.Nagabushana, learned counsel appearing for the petitioners submits that the father of the petitioners filed O.S.No.25446/2017 against the respondents for seeking relief of permanent injunction restraining the respondents from entering into the suit schedule properties and to fence the same illegally. The said suit came to be decreed. It is further submitted that the petitioner filed execution petition in Ex.No.25239/2018 to execute the judgment and decree passed in his favour. It is also contended that the petitioner has filed writ petition in WP.No.25353/2019 seeking relief to dispose of the execution petition as early as possible. It is also submitted that the petitioner filed IA.No.1 in the said execution petition seeking amendment of the prayer to direct the judgment debtors to deliver the portion of the suit schedule properties encroached and put up compound wall on the northern side of the suit schedule properties and the said application was duly considered by the execution Court and disposed of on 18/7/2019 by recording the finding that the said application can be considered after holding an enquiry regarding disobedience of the decree in the pending execution. It is also submitted that the petitioner filed a similar application after concluding the evidence in the execution proceedings and the said application came to be rejected by the execution Court vide order dtd. 20/12/2019 on the ground that the similar application filed earlier by the petitioner was rejected and on the ground of res judicata, the later application is not maintainable. It is contended that the execution Court has committed a grave error in dismissing the application on the ground of res judicata as the earlier application filed by the petitioner was never adjudicated on its merits and the order passed by the execution Court dtd. 18/7/2019 clearly indicates that the liberty was granted to consider such application after holding an enquiry. In support of his contentions, he places reliance on the decision of the Hon'ble Supreme Court in the case of Yadaiah v. State of Telangana, (2023) 10 SCC 755 and seeks to allow the petition.

(3.) Per contra, learned Additional Government Advocate appearing for the respondent No.1 and Sri.Ashwin S. Halady, learned counsel appearing for respondent Nos.3 and 4 supports the order of the trial Court and submits that the filing of the application for seeking re-delivery of possession is not maintainable and the petitioners are required to pay the Court fee for seeking such relief and hence, he seeks to dismiss the petition.