KARIYAPPA Vs. HALADAPPA

JUDGEMENT

(1.) This Civil Revision Petition is by the decree-holders, whose execution case was rejected by the Executing Court. On 26-02-1988, after hearing the learned Counsel for the petitioner, I had allowed the petition and directed the Executing Court to proceed with the execution. On the said date, even though the respondent had been served with the notice of the C.R.P. he was not present and he was not represented by any Counsel. Thereafter, I. As. I to III were filed by the respondent, seeking the said order to be recalled and other incidental reliefs. The reason for his absence and non-representation at the time of the said disposal of the C.R.P. is fully explained by the respondent. Sri H.G. Ramesh, the learned Counsel for the decree holder, fairly did not oppose the said I.As. Consequently, my order dated 26-02-1988 is recalled. The learned Counsel for both parties were ready for arguments on merits of the C.R.P. and they were fully heard.

(2.) A few facts are necessary to be stated. Decree-holder filed a suit seeking a decree against the defendants "for permanent injunction restraining them from trespassing into the suit schedule sites and putting any structure thereon and also from interfering with the plaintiff's peaceful possession and enjoyment thereof." It is not necessary to refer to the incidental relief sought in the plaint, The schedule gave the particulars of three sites as K.Nos. 16, 17 and 18. In the plaint, it was averred that the defendants were trying to put up some structure on the properties of the plaintiff under the guise of putting up a shed in the site No. 19 belonging to defendant. This suit was ultimately numbered as O.S.133/1972 (on transfer from another Court, where it was filed as O.S. 417/1970). The suit was dismissed on 26-06-1974. But, on appeal, the suit was decreed on 25-08-1975, in R.A. No. 138/1974. The Second Appeal, R.S.A. No. 1089/1975 filed by the defendants was dismissed by this Court at the stage of admission.

(3.) In the course of arguments, it was brought to my notices that, subsequently, the defendants filed a suit O.S,104/1976 for a declaration of their title and possession of these properties. The suit was dismissed on 08-08-1983, and the appeal R.A.No. 5/1983 filed by them is pending in the Court of the District Judge, Shimoga. It seems the Appellants in the said appeal filed I.A.III seeking, inter alia, stay of the execution in Execution Case No. 82/1984 (i.e. the execution case, out of which, the present C.R.P. has arisen). But the said I. A. III was rejected by the learned District Judge by his order dated 03-09-1986, holding that, obviously, the suit properties were with the respondents therein. The said appeal R.A. 5/1983, however, is still pending.