MANU/KA/0181/2020

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

W.P. No. 39296/2016 (GM-CPC), W.P. Nos. 39382/2016, 28433/2019, 28432/2019,
28435/2019, 31405/2019, 31420/2019, 28434/2019 (GM-CPC), RFA No. 469/2017,
468/2017 and 441/2017 (RES)
Decided On: 16.01.2020
Appellants: Rahul S. Shah and Ors.
Vs.
Respondent: Jinendrakumar Gandhi and Ors.
Hon'ble Judges/Coram:
Dixit Krishna Shripad, J.
Counsels:
For Appellant/Petitioner/Plaintiff: D.R. Ravishankar, Advocate, S. Susheela, Senior
Counsel, Raghu H.P. and S. Shekar Shetty, Advocate
For Respondents/Defendant: Paras Jain, Advocate, Susheela, Senior Counsel, H.P.
Raghu, S. Shekar Shetty, D.R. Ravishankar and B.A. Belliappa, Advocates
ORDER
Dixit Krishna Shripad, J.
1. About a century & a half ago, the Privy Council speaking through RIGHT HON. SIR
JAMES COLVILE, in the case of THE GENERAL MANAGER OF THE RAJ DURBHANGA
VS. MAHARAJAH COOMAR RAMAPUT SINGH (MOORE'S INDIAN APPEALS
MANU/PR/0029/1872 : 1871-72, VOL.14, page 605) had observed as under:
"These proceedings certainly illustrate what was said by Mr. Doyne, and what
has been often stated before, that the difficulties of a litigant in India begin
when he has obtained a Decree...."
The above observations which prove truer today should set the tone for the hearing &
disposal of a set of these cases which seek to lay a challenge to the execution
proceedings.
2 . All these cases i.e., the Writ Petitions and the Regular First Appeals arise from
several orders/directions issued by the learned VI Addl. City Civil Judge, Bangalore in
Execution No. 458/2007 c/w. Execution No. 459/2007, filed by the respondent-DHrs.
The brief facts leading to the institution of these cases are as under:
(a) The land in Municipal Corporation No. 327, Mysore Road, Bangalore, in
all approximately admeasuring 1 acre & 04 guntas i.e., 47,916 sq.ft was
bought by one Smt. Narayanamma, the judgment debtor vide registered sale
Deed 17.03.1960; however she claimed that the land measures more on
ground, going by its description in terms of boundaries.
(b) Of the above land, Smt. Narayanamma sold 34,839 sq.ft vide two
registered sale deeds evenly dated 13.05.1986 in favour of Respondent-
DHrs; her & her son's suit in O.S. No. 986/1987 for a decree of injunction,
later amended into the one for declaration as to the said sale deeds being
void, was clubbed with Decree Holders' two suits in O.S. No. 9077/1996 &

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 O.S. No. 9078/1996 for possession.
(c) By a common judgment & decree dated 21.12.1996, Smt. Narayanamma's
suit for declaration came to be dismissed, and DHrs' suits for possession
came to be decreed; the challenge to the same by the JDrs in R.F.A. Nos.
661-663/1997 came to be negatived by a Division Bench of this Court vide
judgment dated 22.10.2009, and that the Special Leave Petition (Civil) Nos.
16349-16351/2010 filed against the said RFA judgment too came to be
rejected by the Apex Court vide Order dated 23.07.2010.
(d) During the pendency of the suits, Smt. Narayanamma got the entire land
in Municipal Corporation No. 327 apportioned vide registered Partition Deed
dated 25.03.1991 between herself, her husband Sri Anjan Reddy and her son
Sri Ramachandra Reddy; the said son sold his share to the Appellant-
Obstructers herein, during the period between 2001 and 2004 by several
registered sale deeds; the DHrs filed Execution Petition Nos. 458 & 459/2007
seeking delivery of possession of the suit property.
(e) The buyers of property from Sri Ramachandra Reddy ie., the obstructors
herein resisted the Execution on the basis of their sale deeds contending that
what they have bought is not part of the decreetal property; therefore, the
DHrs had filed application under Order XXI Rule 97 of CPC, 1908 for
removing these obstructors, terming them as "buyers pendente lite"; the
Executing Court vide order dated 23.04.2010 asked both the sides to lead
evidence to substantiate their rival stand; it also stated that on the basis of
the outcome of the said enquiry, a decision for appointment of a competent
surveyor as Court Commissioner could be taken.
(f) In the enquiry, in terms of above Order dated 23.04.2010, the
Respondent-DHrs got examined their attorney as P.W. 1 and in his
deposition, the documents at Exhibits P-1 to P-39 came to be produced;
similarly on behalf of Obstructors, three witnesses were examined as OWs-1
to 3, and in their deposition, the documents as per Exhibits R-1 to R-29
came to be marked; both the sides had mentioned about the writ petitions
arising from collateral proceedings which ultimately boiled down to the
requirement of identifying the decreetal property.
(g) In the meanwhile, the criminal proceedings in P.C.R. No. 3053/2016 were
launched by the JDrs which the DHrs challenged in Criminal Petition No.
6281/2016 c/w. Criminal Petition No. 5916/2016 under section 482 of
Criminal Procedure Code, 1973; a Co-ordinate Bench of this court vide
interim order dated 28.10.2016 had appointed a Court Commissioner to
identify and measure the decreetal property as comprised in the subject sale
deeds with intent to place the DHrs in possession thereof; the Commissioner
having accomplished the job, submitted his report, which was objected to by
the JDrs; however, the obstructors were not parties to these petitions.
(h) The said Criminal Petitions later having been allowed vide judgment
dated 16.03.2017, the subject criminal cases filed against the DHrs came to
be quashed; the Co-ordinate Bench directed that the Commissioner's Report
along with the Objections of the JDrs, be forwarded to the Executing Court
for consideration; however a copy of the said Report was already filed in the
Execution Petitions during the pendency of the Criminal Petitions before the
Co-ordinate Bench; strangely none of the parties mentioned about the said
Report having already acted upon by the Executing Court, delivery warrants

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 were issued.
(i) In the meanwhile, the Executing Court after hearing both the sides and
after perusing the evidentiary material placed on record during the enquiry,
vide order dated 31.10.2014 appointed the Taluka Surveyor of BBMP as the
Court Commissioner and directed him "to visit the spot and survey and fix
the boundaries of decreetal property ........ in reference to the measurements
and boundaries mentioned in decree taking into note that, 78' + 52' stated to
be located at Eastern side of the schedule property as per exhibit P-4 is
located at Southern side of Municipal No. 327 abutting to Bangalore-Mysore
Road, Bangalore in reference to exhibits P-25 & P-26 sketches and submit the
report along with a comprehensive sketch", keeping DHrs application in I.A.
No. 6 filed u/o. XXI Rule 97 of CPC pending for consideration till after the
Commissioner would submit his report.
(j) Subsequently, the JDrs had filed Memos dated 29.10.2015 and
03.11.2015 along with an application u/s. 47 r/w. section 151 of the Code
and also r/w. section 44 of the Indian Evidence Act 1872 seeking recall of
the above order dated 31.10.2014 whereby the Commissioner was sought to
be appointed for identifying the suit property; they had also filed application
under Order XXVI Rule 9 of the Code for referring the sale deeds of the DHrs
and the sketches appended thereto for forensic examination by a Handwriting
Expert on the ground that the signatures purporting to be of Smt.
Narayanamma were forged; the Obstructors too had made similar
applications; the Memos and the applications filed by the JDrs and the
Obstructors having been dismissed, the Executing Court vide order dated
25.06.2016 reiterated the directions contained in its order dated 31.10.2014.
(k) Despite the above two orders dated 31.10.2014 and 25.06.2016, the
appointment of Commissioner did not materialize whatever be the reasons
therefor; however, in the light of the Report of the Court Commissioner
appointed by the Coordinate Bench in the aforesaid Criminal Petitions and the
evidence tendered by the parties in the enquiry, the Executing Court vide
order dated 30.06.2017 declined to send the subject documents for forensic
examination and also rejected Obstructors' resistance to execution, and
further refused to recall the order dated 31.10.2014; it again directed
issuance of Delivery Warrant reserving liberty to the DHrs to take police
protection, if needed.
3. Aggrieved by the above orders, the JDrs and the Obstructors have preferred these
Writ Petitions and Appeals, brief description of which is as under:
(i) the case in W.P. No. 39382/2016 is filed by Obstructor No. 3, Sri Rahul S.
Shah for laying a challenge to the order dated 31.10.2014 whereby the
Executing Court in Execution No. 459/2007 having appointed the Court
Commissioner, has directed him to identify & measure the subject property
by treating Eastern boundary as being located at Southern side abutting
Bangalore-Mysore Road;
(ii) the cases in W.P. No. 28432/2019 and W.P. No. 28433/2019 are filed by
the JDrs Smt. Narayanamma and her son Sri Ramachandra Reddy for laying a
challenge to the order dated 31.10.2014 whereby the Executing Court in both
the Execution Petitions having appointed the Court Commissioner, has
directed him to identify and measure the subject property by treating its
Eastern boundary to be the Southern boundary, abutting Bangalore-Mysore

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 Road;
(iii) the case in W.P. No. 39296/2016 is filed by the same Obstructor Rahul
S. Shah for challenging the order dated 25.06.2016 whereby his application
filed u/o. XXVI Rule 10A r/w. sections 47 & 151 of Code, having been
rejected, the Executing Court refused to refer the sketches and sale deeds of
the DHrs for forensic examination;
(iv) the cases in W.P. No. 28434/2019 and W.P. No. 23435/2019 also are
filed by the JDrs Smt. Narayanamma and her son Sri Ramachandra Reddy for
laying a challenge to the order dated 25.06.2016 whereby the Executing
Court in both the Execution Petitions having rejected their applications filed
u/o. XXVI Rule 9 of the Code, has refused to refer the sketches at Exhibits R-
50 & R-51 to the subject sale deeds of the DHrs for forensic examination;
(v) the cases in R.F.A. Nos. 441, 468 & 469/2017 are filed by the Obstructors
for laying a challenge to the order dated 15.02.2017, whereby DHrs'
application in I.A. No. VI filed u/o. XXI Rule 97 of the Code having been
favoured, the Executing Court has reiterated its earlier direction for issuance
of Delivery Warrant; some of the writ petitions earlier filed came to be
dismissed as withdrawn with liberty to lay the challenge in appeal since the
impugned order is a deemed decree, under Order XXI Rule 103; and,
(vi) the cases in W.P. No. 31405/2019 and W.P. No. 31420/2019 also are
filed by the JDrs Smt. Narayanamma and her son Sri Ramachandra Reddy for
laying a challenge to the order dated 30.06.2017 whereby the Executing
Court has issued Delivery Warrant in favour of Respondent-DHrs reserving
liberty to them for availing police assistance, if need arose.
4. I have heard the learned counsel for the parties at length; having perused the case
papers and the written notes of the counsel. I have adverted to the relevant rulings
cited at the Bar; I had also the benefit of seeing "wooden block demonstration" of the
effect of sales in severalty, of the property, passionately given by the learned
advocate appearing for the DHrs.
5 . Challenge to the order of the Executing Court declining to refer the subject
documents for forensic examination by a Handwriting Expert attached to State
Forensic Laboratory, has to fail for the following reasons:
(a) the subject sale transactions of the DHrs were in challenge in JDrs' civil
suit in O.S. No. 986/1987 which was clubbed with DHrs' two suits for
possession i.e., O.S. No. 9077/1996 & O.S. No. 9078/1996; the said
challenge having been negatived by the trial Court, JDrs' suit came to be
dismissed, and the suits of the DHrs came to be decreed by a common
judgment & decree dated 21.12.2006; the JDrs' appeals in RFA Nos. 661,
662 & 663/2007 against the same also came to be dismissed by a Division
Bench of this Court on 22.10.2009; their further challenge in SLPs against
the same too came to be negatived by the Apex Court on 23.07.2010; thus, it
is not open to the JDrs to seek reopening of the validity of the conveyances
in the Execution Petitions since the matter is hit by res judicata, constructive,
if not actual;
(b) the contention that the DHrs have played fraud on the JDrs in getting the
sale deeds & the sketches attached to them, and that fraud vitiates
everything and therefore the doctrine of res judicata is not invocable appears
to be too farfetched an argument; the JDrs had taken up more or less a

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 similar contention earlier and failed in the marathon legal battle that was
fought up to the highest Court of the Country; in fact, such a contention was
half-heartedly pressed into service by the JDrs in their suit itself,
unsuccessfully; this apart, the material particulars of fraud are neither
pleaded nor proved; "fraud vitiates everything" cannot be chanted like vedic
mantra to invalidate the judgments & decrees entered after a full fledged trial
especially when they have attained finality, the challenge thereto before the
Division Bench of this court and in the Apex Court having miserably failed;
(c) the contention of the obstructors that the findings recorded in the subject
suits as to the validity of conveyances do not operate as res judicata against
them since they were not parties to the said suits, is true; this contention
however does not advance their stand since no case is made out even
otherwise, for referring the subject documents for forensic examination; they
have not pleaded the minimum material particulars of fraud such as, who
played fraud on whom, how & when; it has been a long settled position of
law by a catena of decisions of the Apex Court, that the Courts would not
readily entertain the allegation of fraud which is half-heartedly pleaded and
much less proved; even whatever material they have placed on record not
only does not substantiate the stand taken up by them, but does not make
the contention consideration worthy;
(d) the deposition of the Sub-Registrar too does not advance the case of the
obstructors and JDrs for referring the subject documents for forensic
examination; there is absolutely no material to raise even a loose
presumption that the sketches in question appended to the subject sale
deeds were annexed subsequent to registration and fraudulently; normally,
the enclosures/annexures to the sale deeds need to be mentioned in a
particular Register, may be true of Rules of Registration; but the absence of
such mentioning per se does not prove the contention of fraud or fabrication;
a party to the deed has no control over the indoor management of the Sub-
Registrar's Office and therefore, the arguable lapse on the part of said Office
cannot be taken advantage of, by the others especially when the signature of
Smt. Narayanamma appearing on the sale deeds & the sketches was not in
dispute at all in the suit proceedings;
(e) the Obstructors & JDRs wanted to show that the sketches appended to
the sale deeds are in variance with the description of the property in the suits
of the DHrs; in fact, the description of subject property in the suits of the
DHrs perfectly matches with that in the Counter Claim dated 18.04.1998 filed
by the JDrs in the DHrs suits for possession; this apart, even the obstructors
have bought the properties from the very same JDrs only and what they have
bought are a part of the property bearing the very same Municipal
Corporation Number;
(f) the contention that the obstruction to execution requires to be treated as
if it is a suit proceeding needs no substantiation, the position of law being
very clear; but even in such a case, the subject documents cannot be
referred for forensic examination by the Handwriting Experts merely on an
askance; a substantial case has to be made out by the contenders for
granting such a prayer especially when these documents were subject matter
of scrutiny by the trial Court in the said suits, and challenge to the judgment
& decrees made therein having been negatived even at the level of Apex
Court as already mentioned above;

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 (g) the Obstructors, arguably, may or may not have some reason for seeking
the forensic examination of the subject documents since they were not
parties to the suit wherein these documents were scrutinized; as already
observed above, the findings & observations in the suit proceedings do not
per se bind those who are not parties eo nomine thereto; however, this is
not to jump to a hasty conclusion that the obstructors happen to be or do not
happen to be the buyers pendente lite; but, there is absolutely no
justification whatsoever for the JDrs to seek the forensic examination of the
subject documents; their stand in the suit, in the RFAs and in the SLPs is
infected with unconscionability of high order and the same continues with
more vigour even in Execution Petitions, their decades long drawn legal
battle having miserably failed; therefore, this is a fit case for levying the
exemplary costs on the JDrs, however sparing the obstructors.
6 . Challenge to the issuance of delivery warrant needs to be favoured for the
following reasons:
(i) admittedly the subject Sale Deeds of DHrs comprise only a portion of the
property bearing Municipal Corporation Number 327 which in all measures 1
acre & 04 guntas i.e., 47,916 sq.ft. although the JDrs assert it to be about
54,000 sq.ft.; what is bought by the DHrs vide subject Sale Deeds dated
13.05.1986 is 17,172 sq.ft. plus 17,677 sq.ft. which in all works out to be
34,849 Sq.ft.; even the schedules in the said Sale Deeds also state that a
part of the property in this Municipal Corporation Number is the subject
matter of these two conveyances; the suits in question were founded on
these Sale Deeds; therefore identifying the suit property is a pre-condition
for the execution of the decree, as rightly contended by the counsel for the
JDrs and the Obstructors;
(ii) the suits have been fought on the basis of pleadings of the DHrs and the
JDrs, and that at no point of time there was any dispute as to the identity &
extent of the suit property; there is some force in the vehement contention of
the learned counsel for the DHrs that raising a dispute as to the existence of
the suit property even after the decades long drawn legal battle attaining
finality offends the sense of justice; but where a portion of the property is
comprised in the Sale Deeds, the establishment of its identity becomes a sine
qua non for the execution of the decree; a contention to the contrary may put
other buyers of the residue of the property, to prejudice; therefore the
requirement of establishing the identity of the subject property cannot be
dispensed with;
(iii) there is also force in the submission of the counsel for the Obstructors
that what is in execution is the decree and that the Executing Court has to
find the decree as it is; there cannot be much dispute as to this well
established proposition vide SHAFIQUR REHAMAN KHAN vs. SMT.
MOHAMMED JAHAN BEGUM,(1982) 2 SCC 456; however, the Executing
Court has to make all reasonable efforts to know what property the decree in
question comprises of; where despite reasonable efforts, the property
comprised in the decree does not become identifiable, such a decree may be
treated as inexecutable vide Shafiqur Rehaman Khan Case, is also true;
however, that is not the case here; at no point of time during the suit
proceedings the JDrs had disputed the existence or extent of the suit
property assuming such a dispute also will not yield anything to the
advantage of the DHrs since no finding in support of their contention has
been obtained;

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 (iv) there is some confusion as to the description and identity of the property
in question, is admitted by the DHrs too in their deposition, is true; unless
the decreetal property is identified, it is not possible to decide whether the
Obstructors happen to be the buyers pendente lite and therefore they are
liable to suffer the doctrine of lis pendens; it is more so, when DHrs
application for impleading the Obstructors as being buyers pendente lite was
rejected by the Executing Court on 23.04.2010; in fact, the Executing Court
earlier had held that a thorough enquiry was warranted in this regard; the
Court vide order dated 07.03.2013 again held that the question of issuing
delivery warrant would arise after the completion of and subject to outcome
of enquiry; that is the reason why it dismissed DHrs application in I.A. No.
11 filed under XXI Rule 102 of the Code;
(v) the order of the Executing Court appointing a Court Commissioner did not
materialize, and thus obviously there is no report by the said Commissioner;
a Co-ordinate Bench of this Court in the aforesaid Criminal Petitions of the
DHrs had appointed a member of the Bar namely, Mr. Venkatesh Dalwai as
the Court Commissioner vide interim order dated 28.02.2016 and he had
submitted the Report; the Obstructors were not notified, before the said
Commissioner undertook the exercise, is not controverted; the records
disclose that the said Commissioner was not examined as a witness in the
Execution Proceedings regardless of arguable requirement thereof; the
Obstructors did not have sufficient opportunity to have their say on the
actionability of the report; the Executing Court made this report as the
substantive basis for the issuance of delivery warrant, becomes obvious by a
bare perusal of the record, albeit the other evidentiary material on record
was also adverted to; thus there is a gross error of jurisdiction and
procedural irregularity that have infected the impugned orders, whereby the
issuance of delivery warrants are issued;
(vi) the contention that the report submitted by the Court Commissioner
appointed in the aforesaid Criminal Petitions could not have been straightway
accepted by the Executing Court is substantiated by the subsequent
observations of the learned Co-ordinate Judge at para 9 of his judgment
dated 16.03.2017 in the Criminal Petitions, which read as under:
"9. Before parting with the order, it is relevant to note that by order
dated 28.10.2016, a Court Commissioner was appointed to identify
and measure the property in terms of the schedule to the sale-deeds
and to ensure that the petitioners are put in possession of the same.
In compliance of the said order, the Commissioner has submitted a
report. Learned counsel for the respondent has filed his objections to
the said Commissioner's report. Having regard to the fact that the
execution of the decree passed by the Civil Court is seized by the
executing court and the records reveal that the executing court has
also appointed a Commissioner for identification of the properties, in
my view, it would be proper that the report prepared by the
Commissioner along with the objections submitted by the respondent
before this Court is forwarded to the executing court leaving it open
for the executing court either to proceed further on the basis of the
said report by calling for objections of the parties and to pass
appropriate orders thereon in accordance with law and proceed with
the execution of the decrees as expeditiously as possible."
(vii) even much before the judgment in the aforesaid Criminal Petitions was

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 rendered, the Executing Court had acted upon the report of the said
Commissioner without much deliberation thereon, that too in the face of the
orders for holding of the enquiry with the participation of all the stake-
holders; this apart, the DHrs applications in I.A. Nos. 9 & 10 filed under
Order XVIII Rule 18 of the Code seeking inspection of the property by the
learned Judge of the Executing Court were already rejected vide order dated
21.11.2012; similarly their application in I.A. No. 11 filed under Order XXI
Rule 102 for issuance of delivery warrant was also dismissed vide order
dated 07.03.2013 and challenge thereto in R.F.A. No. 489/2013 was
negatived by a Co-ordinate Bench of this Court on 08.08.2016; all this,
prima facie constitutes a ground for invalidation of delivery warrants issued
in succession, and for the remand of the matter for consideration afresh;
(viii) no case is made out by the JDrs and the Obstructors to hold the
decrees in question as being inexecutable and for relegating the DHrs to a
fresh round of litigation that may eventually run for decades again, as has
happened in these cases, inasmuch as whatever little discrepancy that exists
in the description of the suit property can be erased out in the very execution
proceedings with the evidentiary material on record coupled with the report
that will be submitted by the Commissioner to be appointed afresh, pursuant
to this judgment; the Executing Court has to find the decree as it is, is true;
however, this proposition does not prevent it from making all reasonable
efforts, as already mentioned above, for locating the subject property which
is otherwise identifiable;
(ix) the suits of JDrs & DHrs have been fought for decades and this long
drawn legal battle did not come to a halt even by the dismissal of JDrs' SLPs
by the Apex Court vide Order dated 23.07.2010; the execution cases
themselves are of 2007; a victorious party in a litigation which has been
fought upto the level of the highest court of the country cannot be readily
asked to launch one more litigation when the lacuna is addressable by the
Executing Court itself; a contra argument strikes at the root of law, of reason
and of justice; countenancing such an argument, would expose the judicial
process to the risk of being ridiculed by the right thinking members of the
society;
(x) the contention that the earlier orders made in the successive stages of
the same litigation operate as res judicata does not need much elaboration
vide decision of the Apex Court in Y.B. Patil And Ors. vs. Y.L. Patil,
MANU/SC/0035/1976 : AIR 1977 SC 392; the collective effect of all the
impugned orders of the Executing Court does not render the decrees in
question inexecutable; in fact, all they have an inner voice that the property
comprised in these decrees does exist and is identifiable; there is no reason
or rhyme for this court to run the race of opinions with the Court below in
this regard; it hardly needs to be stated that no litigant can insist that the
Executing Court while construing the decree should keep it's common sense
in cold storage; it should make all reasonable efforts for ascertaining the
executability of a decree, the strong presumption being in favour of its
executability and the rebuttal thereof warranting a cogent substantiation;
(xi) the contention that the Executing Court cannot take cognizance of the
report submitted by the Commissioner appointed by a Co-ordinate Bench of
this Court in DHrs' quashment proceedings u/s. 482 of Cr.P.C. since the Code
does not authorize the Criminal Courts to undertake such an exercise,
appears to be too farfetched an argument; rightly or wrongly, there was such

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 an order appointing the Commissioner; this Court cannot sit in appeal over
the order of a Co-ordinate Judge; unless the said order on an appropriate
challenge is set at naught, the same continues to be valid in the absence of
magistra dicta as to its invalidity, the same needs to be taken cognizance of;
the Apex Court in the case of STATE OF PUNJAB vs. GURDEV SINGH &
ANOTHER, MANU/SC/0612/1991 : AIR 1992 SC 111 at paras 7 & 8 observes
as under:
"7. Apropos to this principle, Prof. Wade states: "the principle must
be equally true even where the 'brand' of invalidity' is plainly visible;
for there also the order can effectively be resisted in law only by
obtaining the decision of the Court (See: Administrative Law 6th Ed.
p. 352). Prof. Wade sums up these principles:
"The truth of the matter is that the Court will invalidate an
order only if the right remedy is sought by the right person
in the right proceedings and circumstances. The order may
be hypothetically a nullity, but the Court may refuse to
quash it because of the plaintiffs lack of standing, because
he does not deserve a discretionary remedy, because he has
waived his rights, or for some other legal reason. In any
such case the 'void' order remains effective and is, in reality,
valid..........."
8 . It will be clear form these principles, the party aggrieved by the
invalidity of the order has to approach the Court for relief of
declaration that the order against him is inoperative and not binding
upon him. He must approach the Court within the prescribed period
of limitation. If the statutory time limit expires the Court cannot give
the declaration sought for.";
(xi) after all, the report submitted by the Court Commissioner appointed in
the aforesaid Criminal Petitions cannot be brushed aside; it would constitute
a piece of evidence along with other material on record, for decision making
in the light of the observation of the said learned Judge at para 9 of his
judgment; this does not preclude the Executing Court appointing an expert
as a Court Commissioner for accomplishing the identification and
measurement of the decreetal property; and,
(xii) the last contention that the Executing Court could not have shifted the
Eastern boundary to South at the first blush appears to be very attractive, but
a deeper scrutiny robs off all its sheen; the decretal properties are not a
square or trapezium like; their arms are not spread exactly East-West and
North-South; nor are they perpendicular or parallel to each other; they are a
bit slant going by three other boundaries; the shifting of Eastern boundary to
the Southern side facilitates identification of property but does not change its
location, since the 'Mysore Road' remains static as a polestar; therefore, by
the so called shifting of the boundary, no error is committed by the
Executing Court as rightly submitted by the counsel for DHrs; this is yet
another reason for rejecting, the contention of the JDrs and Obstructors that,
the DHrs should go for another suit for rectification of the sale deeds in
question;
(xiii) there is some force in the contention of the DHrs that what is bought by
the Obstructors is far in excess of what was left after DHrs had bought and

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 therefore the conveyances overlap; this contention is founded on simple
logic and arithmetics; once the JDrs had sold the property, they could not
have conveyed the same later to others is true of maxim nemo dot quad non
habet; however the fact remains that there remained some portion even after
the DHrs bought the major portion of the property bearing MC No. 327; there
are as many as six sale deeds executed by JDrs subsequent to the sales
made to DHrs; there is a certain fraudulent design attributable to JDrs, if not
to some of the subsequent buyers; a vendor of the property having lost his
case for setting aside the conveyance after fighting it upto the Apex Court
cannot be heard to say in the execution proceedings that the said property is
not in existence at all; such a stand of vendors is infected with enormous
unconscionability, if it is not a fraud of first order; countenancing a contra
argument militates against the foundational principle of Law of Contract
namely, 'pacta sunt servanda' i.e., what is agreed upon must be performed;
7. Whether a case is made out by the DHrs for levying exemplary costs on the JDrs?
a) In the subject suits, as already mentioned above, the challenge to the
DHrs' sale transactions failed before the trial Court in the suits, before a
Division Bench of this Court in the RFAs and before the Apex Court in the
SLPs; the contention that was half heartedly urged i.e., the alleged non-
existence of the property of the DHrs, is re-agitated in the execution
proceedings; having lost the suits at all levels the JDrs had absolutely no
justification whatsoever for seeking forensic examination of the DHrs' sale
deeds and sketches appended thereto; it was only an attempt to protract the
execution proceedings to the detriment of DHrs; strangely throughout the
long drawn legal battle of more than three decades, not even a whisper is
made by the JDrs that they would refund the consideration amount with
interest and compensate the DHrs for selling the so called "non-existent
property";
b) apparently a part of the property comprised in the six Sale Deeds
executed subsequently, over-lap the property already sold to the DHrs, albeit
the same needs to be identified by the Executing Court; the conduct of JDrs
in falsely implicating the DHrs in criminal cases which later came to be
quashed by the Co-ordinate Bench, amounts to cruelly smearing salt to the
injury, to say the least; there is a certain design to delay the execution of
decrees, if not to defeat the same absolutely; all these circumstances
eminently warrant levy of exemplary costs on the JDrs jointly, in a sum of
five lakh rupees in each of the Execution Petitions and stipulating of a rider
that they shall not be permitted to participate in the Executing proceedings
till after the payment is made to the DHrs, collectively.
8 . Whether Obstructors are liable to deposit the amount by way of interest to be
reckoned from the date they received the compensation till the date of Division Bench
order ie., 19.04.2013?
(a) there is yet another aspect which the learned counsel for the respondent
- DHrs has passionately drawn the attention of the Court to. In DHrs' W.P.
No. 9337/2008 filed inter alia against the appellant - obstructors, a
Coordinate Bench of this Court vide judgment dated 28.10.2009 at para 15
had said: "Hence, this writ petition is allowed in part. The KIADB and the
Land Acquisition Officer are directed to ensure that the amount paid to
respondents 2 to 11 is re-deposited by taking such steps as are permissible
in law....."

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 (b) the aforesaid judgment was put in challenge by the appellant-obstructors
in Writ Appeal No. 4201/2009 & Writ Appeal Nos. 294-302/2010 (LA-
KIADB); a Division Bench of this Court by a common judgment dated
05.03.2010 dismissed the appeals observing at para 3 as under:
"3. After hearing the counsel for appellants, we find that appellants
have acted in a bona fide manner. However, they are bound by the
order of the learned single Judge....."
(c) since the Obstructors had not complied with the direction for re-
depositing the compensation amount, the DHrs had filed CCC No. 280/2011
(Civil) complaining violation of the writ; the Division Bench vide order dated
01.08.2012 dropped the contempt proceedings on the undertaking of the
Obstructors to re-deposit the compensation amount with the KIADB if the
DHrs were to succeed in the proceedings under Order XXI Rule 97 of CPC;
thereafter on the memo of the DHrs, the Division Bench on 19.04.2013 had
directed the Obstructors to deposit the compensation amount, with interest at
12% per annum before the trial Court within one month, the release whereof
shall be subject to outcome of the Execution Petitions. The challenge by the
appellant-obstructors to the same in SLP also came to be negatived by the
Apex Court vide order dated 05.11.2014;
(d) the appellant-obstructors had filed application in I.A. Nos. 2, 3, 4 & 5 of
2014 and in I.A. No. 3 of 2015 inter alia seeking extension of the period for
making the deposit; the Division Bench vide order dated 02.09.2016
observed as under:
"Order on I.A. Nos. 2, 3A and 5 of 2014 & I.A. No. 3/2015
Considering the facts and circumstances, time to deposit the amount
if not deposited shall stand extended for a period of three months.
However, it is observed that thereafter, if there is any noncompliance
or if there is any dispute in calculation, it would be open to the
applicants in CCC No. 280/2011 and CCC Nos. 291-293/2011 to
resort to appropriate proceedings in law. Accordingly, all the
applications for extension of time shall stand disposed of."
(e) Subsequently the said Division Bench vide order dated 24.01.2017, at
para 10 observed as under:
"10. As noticed above, the contempt petition was disposed of on
1.8.2012 On 19.4.2013, this Court directed accused Nos. 3 to 12 to
deposit the compensation amount received with interest at 12% p.a.
before the trial Court within one month. However, on an application
made by the accused, this Court on 2.9.2016 has observed that if
there is any non-compliance or if there is any dispute in calculation,
it would be open for the applicants in the contempt proceedings to
resort to appropriate proceedings in law. This order has become
final. If the complainants have any grievance in relation to non-
compliance of the order dated 19.4.2013, they have to initiate
appropriate proceedings in accordance with law. Therefore, no
further orders are necessary in these proceedings."
(f) pursuant to the above orders/directions, it is submitted on behalf of the
Obstructors that since they have already made the deposit of the principal
amount with interest at the rate of 12% per annum reckoned from

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 19.04.2013 ie., from the date of the order of the Division Bench, there is no
need for depositing any more amount by way of interest; admittedly, they
have not deposited the interest that has accrued due from the date they had
taken the compensation; obviously the interest would accrue not from the
date of the direction of the Court but from the date on which they had
received the compensation amount; their contention to the contrary is
nothing but a contravention of the direction of the Division Bench;
(g) one of the Obstructors namely, Sri Gopilal Laddha has filed an affidavit
dated 18.11.2019 inter alia to the effect that this Court should not non-suit
the Obstructors for the alleged violation of Division Bench order when that is
not the subject matter of these appeals & writ petitions; the stand of the
Obstructors is unconscionable to say the least; those who violate the Court
orders or the undertaking given by them need not be given access to the
judicial process; the Obstructors are liable to deposit in the Court below the
interest at the rate of 12% that has accrued due from the date they received
the compensation till 19.04.2013 also within a period of one month, which
shall be subject to outcome of the execution proceedings; the said amount
on being remitted to the Court below shall be kept in an interest earning
deposit scheme in a Nationalised Bank. If the remittance is not made
accordingly, the concerned Obstructors would run the risk of being kept away
from participation in the execution proceedings by the Court below in its
discretion and wisdom.
In the above circumstances, I make the following
ORDER
The challenge by the JDrs and the Obstructors to the rejection of their request for
subjecting the documents in question to the forensic examination by a Handwriting
Expert of the State Forensic Laboratory, is dismissed;
(a) the other challenge by the JDrs and the Obstructors having been partly
favoured, the impugned orders of the Executing Court directing issuance of
Delivery Warrant, are set at naught, and the matter is remitted back for
consideration afresh by appointing an expert person/official as the Court
Commissioner for accomplishing the identification & measurement of the
decreetal properties with the participation of all the stakeholders, in that
exercise subject to all they bearing the costs & fees thereof, equally;
(b) it is open to the Executing Court to take into consideration the entire
evidentiary material on record hitherto including the Report already
submitted by the Court Commissioner Shri Venkatesh Dalwai,
(c) the amount already in deposit and the one to be deposited by the
Obstructors in terms of orders of Coordinate Benches of this Court mentioned
in paragraph 8 supra shall be released to the parties concerned, that emerge
victorious in the Execution Petitions;
(d) the JDrs shall jointly pay to the DHrs collectively an exemplary cost of
Rs. 5,00,000/- (Rupees five lakh) only in each of the Execution Petitions
within a period of eight weeks, regardless of the outcome of the said
petitions; and,
if, the same is not accordingly paid, they run the risk of being excluded from
participation in the Execution Proceedings, in the discretion of the learned

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 judge of the Court below; and,
(e) the entire exercise including the disposal of the Execution Petitions shall
be accomplished within an outer limit of six months, and the compliance of
such accomplishment shall be reported to the Registrar General of this Court.
No costs qua obstructors.
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