APPASAHEB S/O NAGANAGOUDA BIRADAR vs JAYASHREE W/O IRANNA GARAGAD

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD


TH
DATED THIS THE 27 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE M.G.S. KAMAL

WRIT PETITION NO. 103536 OF 2026 (GM-CPC)

BETWEEN:

APPASAHEB S/O NAGANAGOUDA BIRADAR
AGE. 79 YEARS, OCC. PENSIONER,
R/O. SIDDHAROODAMATH NAGAR,
OLD-HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD.


…PETITIONER

(BY SRI. S.S. PATIL, ADVOCATE)

AND:

1. JAYASHREE W/O IRANNA GARAGAD
AGE. 56 YEARS, OCC. CIVIL ENGINEER,
R/O. H.NO.9, SHIGGAON PARK,
VIDYANAGAR, HUBBALLI, TQ. HUBBALLI,
DIST. DHARWAD-580026.

2. IRANNA S/O GANESH GARAGAD
AGE. 55 YEARS, OCC. CIVIL ENGINEER,
R/O H. NO.9, SHIGGAON PARK,
VIDYANAGAR, HUBBALLI, TQ. HUBBALLI,
DIST. DHARWAD-580026.






SAROJA
HANGARAKI
3. THE CHIEF OFFICER,
HUBBALLI-DHARWAD MUNICIPAL CORPORATION,
HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD-580020.

4. THE DEPUTY DIRECTOR,
URBAN PLANNING, HUBBALLI-DHARWAD
MUNICIPAL CORPORATION, HUBBALLI,
TQ. HUBBALLI, DIST. DHARWAD-580020.

Digitally signed by
SAROJA HANGARAKI
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH

…RESPONDENTS

(BY SRI. V.M. SHEELVANT, ADVOCATE FOR R1 AND R2;
SRI. G.K. HIREGOUDAR, ADVOCATE FOR R3 AND R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT AND
QUASH THE IMPUGNED ORDER DATED 10/04/2026 PASSED IN THE
EX. CASE NO. 131/2023 ON THE FILE OF III ADDL. SENIOR CIVIL
JUDGE AND JMFC, HUBBALLI PRODUCED AT ANNEXURE-N, IN THE
INTEREST OF JUSTICE AND EQUITY AND ETC.

THIS WP COMING ON FOR PRELIMINARY HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

ORAL ORDER

1. The petitioner, who is the defendant in O.S. No. 129 of
2016 and the judgment debtor in Execution Case No.
131 of 2023, is before this Court seeking the following
reliefs:
“1) Issue a writ in nature of certiorari or
any other appropriate writ and quash the
impugned order dated 10/04/2026
passed in the Ex. Case No. 131/2023 on
the file of III AddI. Senior Civil Judge &
ANNEXURE-
JMFC, Hubballi produced at
N
, in the interest of justice and equity.

ii) Issue a writ in nature of certiorari or
any other appropriate writ and quash the
impugned order passed by the 3rd
respondent dated 12/02/2026 in No.
H.D.M.C./50/05/2025-26/468 produced

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ANNEXURE-M
at , in the interest of
justice and equity.

iii) Issue a writ in nature of certiorari or
any other appropriate writ and quash the
impugned order passed by the 3rd
respondent dated 18/04/2026 in No.
HUDHAMAPΡΑΑ/50/Ν.ΥΟ/2026-27/26
ANNEXURE-P
produced at , in the
interest of justice and equity.

iv) Pass such other order or orders as this
Hon'ble Court may deem fit in the
circumstances of the case.”


2. The case of the petitioner is that he is the absolute
owner in possession of the suit property bearing CTS
No. 5048/2A/2, Ward No. 37, Hubballi. He had put up
construction measuring approximately 115.15 square
metres and had obtained a loan of ₹25,00,000/- from
Dharwad Urban Bank. Thereafter, on 23.03.2015, he
entered into a joint ownership building construction
agreement with respondent Nos. 1 and 2. As he was
under financial distress, respondent Nos. 1 and 2
undertook to construct a residential building consisting
of eight residential units, to be divided equally between
the petitioner and respondent Nos. 1 and 2. In terms of
the agreement, four flats were to be constructed on

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each of the first and second floors. The petitioner was
entitled to two flats on each floor, and respondent Nos.
1 and 2 were similarly entitled to two flats on each
floor. The ground floor was to belong exclusively to the
petitioner.

3. Certain disputes arose between the parties. Upon
completion of the construction, respondent Nos. 1 and
2 filed O.S. No. 129 of 2016, seeking a declaration,
permanent injunction and mandatory injunction with
regard to their entitlement under the joint agreement.
The suit was partly decreed by judgment and decree
dated 16.01.2017. Aggrieved thereby, the petitioner
preferred RFA No. 100039 of 2017, while respondent
Nos. 1 and 2 filed cross-objections in RFA Cross-
Objection No. 100009 of 2017. The appeal and cross-
objections were disposed of by the Division Bench of
this Court by judgment and decree dated 10.11.2017.

4. Pursuant to the said judgment and decree, respondent
Nos. 1 and 2 initiated execution proceedings in E.P. No.
131 of 2023, to which objections were filed. The

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Executing Court directed respondent No. 3, Hubballi-
Dharwad Municipal Corporation (HDMC), to take action
with regard to deviations from or violations of the
building plan. Pursuant thereto, an order was passed
directing demolition of the ground-floor portion and
removal of the encroachment in the setback area.
Thereafter, the Executing Court passed the impugned
order directing the Commissioner, HDMC, to proceed in
accordance with law for removal of the unauthorised
construction and further directed the petitioner to
obtain no-dues certificates as required under the
judgment and decree passed in the RFA. Pursuant to
the directions issued by the Executing Court, HDMC
passed an order under Section 321(1) of the Karnataka
Municipal Corporations Act, 1976, directing demolition
of the ground-floor portion and removal of the
encroachment in the setback area. The said orders are
challenged in the present writ petition.

5. Learned counsel for the petitioner submitted that,
under Clauses 2 and 3 of the joint ownership building

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construction agreement, the ground-floor building was
already in existence and belonged exclusively to the
petitioner. Respondent Nos. 1 and 2 were entitled only
to the flats on the first and second floors and had no
right over the ground floor. Therefore, their insistence
on demolition of the ground-floor portion was
untenable. Referring to the order passed by the
Commissioner, HDMC, and produced at Annexure-P,
learned counsel contended that the order had been
obtained at the instance of respondent Nos. 1 and 2.
He further submitted that the Executing Court had no
jurisdiction to direct the Corporation to initiate action
under Section 321 of the Karnataka Municipal
Corporations Act, 1976, and accordingly sought
quashing of the impugned orders.

6. Per contra, learned counsel appearing for respondent
Nos. 1 and 2 submitted that the rights of the parties
under the joint ownership building construction
agreement had attained finality pursuant to the
judgment and decree passed by the Division Bench of

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this Court in RFA No. 100039 of 2017 and RFA
Crob.No.100009/2017. He further submitted that the
challenge to the said judgment and decree before the
Hon'ble Supreme Court had been dismissed. Therefore,
the petitioner could not seek to go beyond the decree.
It was further submitted that the Division Bench had
reserved liberty to HDMC to take action concerning
violations of the building plan in accordance with law
and had also reserved liberty to the parties to avail
themselves of the statutory remedies available to
them. Learned counsel appearing for HDMC submitted
that the orders produced at Annexures-M and P had
been passed in exercise of the powers conferred under
Section 321 of the Karnataka Municipal Corporations
Act, 1976, pursuant to the liberty reserved by the
Division Bench. If aggrieved, the petitioner was
required to avail himself of the statutory remedy of
appeal. Accordingly, dismissal of the writ petition was
sought.

7. Heard and perused the records.

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8. There is no dispute that the suit filed by respondent
Nos. 1 and 2 culminated in the judgment and decree
passed by the Division Bench of this Court in RFA No.
100039 of 2017. The relevant portion of the said
judgment and decree, found at pages 97 and 98 of the
record, reads as follows:
ORDER
“
i. The RFA Cross-objection is allowed.


ii. It is declared that the plaintiffs are entitled
for four residential units in the suit
properties in terms of the joint ownership
building construction agreement dated
23.03.2015.


iii. The defendant is also directed to clear the
loan, if not already cleared and provide a
no due certificate from the bank to the
plaintiffs.


iv. It is made clear that this Court has not
expressed any opinion as regards any
violation of the plan and HDMC is free to
take such action as may be necessary in
this regard and if any of the parties are
aggrieved by the same, the parties are free
to follow their statutory remedies.


v. Upon completion certificate being issued by
the HDMC, the area as regards which the
completion certificate is issued, is directed
to be shared between the plaintiffs and the
defendant in equal proportion whether they
make up four residential units or not.”

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9. A perusal of the aforesaid judgment and decree makes
it clear that respondent Nos. 1 and 2 were held entitled
to four flats in terms of the Joint Ownership Building
Construction Agreement dated 23.03.2015. Clauses 2
and 3 of the said agreement, found at page 31 of the
record, read as follows:
“2) ªÉÆzÀ®£Éà ªÀĺÀrAiÀÄ°è 4 ªÀÄ£ÉUÀ¼À PÉëÃvÀæ, 1859 ZËgÀ¸À ¥sÀÆl
ºÁUÀÆ ¨Á®Ì¤ ªÀÄvÀÄÛ ¸ÉÖÃgÀPÉøÀ KjAiÀiÁ 500 ZËgÀ¸À ¥sÀÆl PÀÆr MlÄÖ
2359 ZËgÀ¸À ¥sÀÆl ©®è¥À KjAiÀiÁ §gÀÄvÀÛzÉ. EzÀgÀ°è ¥ÀǪÀð ¨sÁUÀzÀ 2
ªÀÄ£ÉUÀ¼ÀÄ 2 £Éà ¥ÀPÀëzÀªÀjUÉ ¸ÉÃgÀ¨ÉÃPÀÄ. (F JgÀqÀÆ ªÀÄ£ÉUÀ¼ÀÄ ¸ÉÃj
CAzÁd 1223 ZËgÀ¸À ¥sÉÇÃl DUÀÄvÀÛzÉ) ªÀÄvÀÄÛ ¥À²ÑªÀÄzÀ 2 ªÀÄ£ÉUÀ¼ÀÄ
D¹ÛAiÀÄ ªÀiÁ®PÀgÁzÀ 1 £Éà ¥ÀPÀëzÀªÀjUÉ ¸ÉÃgÀ¨ÉÃPÀÄ (F JgÀqÀÆ ªÀÄ£ÉUÀ¼ÀÄ
¸ÉÃj CAzÁd 1136 ZËgÀ¸À ¨sÀÆl DUÀÄvÀÛzÉ)
JgÀqÀ£Éà ªÀĺÀrAiÀÄ°è 4 ªÀÄ£ÉUÀ¼À PÉëÃvÀæ 1859 ZËgÀ¸À ¥sÀÇl
ºÁUÀÆ ¨Á®Ì¤ ªÀÄvÀÄÛ ¸ÉÖÃgÀPÉøÀ KjAiÀiÁ 500 ZËgÀ¸À ¥sÀÇl PÀÆr MlÄÖ
2359 ZËgÀ¸À ¥sÀÆl ©®Ö¥À KjAiÀiÁ EgÀÄvÀÛzÉ. EzÀgÀ°è ¥ÀǪÀð ¨sÁUÀzÀ 2
ªÀÄ£ÉUÀ¼ÀÄ D¹Û ªÀiÁ®PÀgÁzÀ 1 £Éà ¥ÀPÀëzÀªÀjUÉ ¸ÉÃgÀ¨ÉÃPÀÄ. (F JgÀqÀÆ
ªÀÄ£ÉUÀ¼ÀÄ ¸ÉÃj CAzÁd 1223 ZËgÀ¸À ¥sÀÇl EgÀÄvÀÛzÉ) ªÀÄvÀÄÛ ¥À²ÑªÀÄ
¨sÁUÀzÀ 2 ªÀÄ£ÉUÀ¼ÀÄ 2 £Éà ¥ÀPÀëzÀªÀjUÉ ¸ÉÃgÀ¨ÉÃPÀÄ (F JgÀqÀÆ ªÀÄ£ÉUÀ¼ÀÄ
¸ÉÃj CAzÁd 1136 ZËgÀ¸À ¥sÀÆl EgÀÄvÀÛzÉ) £É® ªÀĺÀrAiÀÄ°è Dgï ¹ ¹
ªÀÄ£É EzÀÄÝ CzÀgÀ°è 2 £Éà ¥ÀPÀëzÀªÀjUÉ AiÀiÁªÀÅzÉà jÃwAiÀÄ ºÀPÀÄÌ »vÁ¸ÀQÛ
EgÀĪÀÅ¢®è DzÀgÉ £É® ªÀĺÀrAiÀÄ°ègÀĪÀ J¯Áè eÁUÉAiÀÄ£ÀÄß J®ègÀÆ
¸ÁªÀÄÆ»PÀªÁV ¥ÁQAðUÀ ¸À®ÄªÁV ªÀiÁvÀæ G¥ÀAiÉÆÃV¸À¨ÉÃPÀÄ
3) ¸ÀzÀgÀ D¹ÛAiÀÄ ªÉÄÃ¯É FUÀ 1 £Éà ¥ÀPÀëzÀªÀgÀ ¨ÁåAQ£À ¸Á®zÀ
¨sÉÆÃeÁ EgÀÄvÀÛzÉ. ªÉÆzÀ®£Éà ªÀÄvÀÄÛ JgÀqÀ£Éà ªÀĺÀrAiÀÄ°èAiÀÄ ªÀÄ£ÉUÀ¼À£ÀÄß
ªÀiÁgÁl ªÀiÁqÀĪÁUÀ ªÀÄ£ÉUÀ¼À RjâzÁgÀjUÉ Rjâ ¥ÀvÀæªÀ£ÀÄß
§gÉzÀÄPÉÆqÀĪÀ ¥ÀƪÀðzÀ°è ¨ÁåAQ£À QèAiÀÄgÀ£Àì ¸Ànð¦üPÉÃl£ÀÄß 1 £ÉÃ
¥ÀPÀëzÀªÀgÀÄ 2 £Éà ¥ÀPÀëzÀªÀjUÉ PÉÆqÀ¨ÉÃPÀÄ. AiÀiÁgÁzÀgÀÄ Rjâ¸À®Ä
EaѹzÀgÉ CªÀjUÉ ¸ÀAZÀUÁgÀ ¥ÀvÀæªÀ£ÀÄß vÀªÀÄä-vÀªÀÄä ªÀÄ£ÉUÀ½UÉ vÁªÀÅ
§gÉzÀÄPÉÆqÀ¨ÉÃPÀÄ.”

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Thus, the entitlement of respondent Nos. 1 and 2 to
the four flats is traceable to the aforesaid clauses of
the joint agreement. To this extent, there is no dispute
between the parties.

10. The issue raised in the present writ petition
concerns the action taken in respect of deviations from
or violations of the building plan. The Division Bench of
this Court had reserved liberty to HDMC to take action
with regard to any such violations and had also
reserved liberty to the parties to avail themselves of
the statutory remedies available to them. The direction
issued by the Executing Court to the Commissioner
with regard to building violations is incidental to the
said order. It cannot, therefore, be said that the
Executing Court acted on its own.

11. The order dated 12.02.2026, produced at
Annexure-M, and the consequential order dated
18.04.2026, produced at Annexure -P, are stated to
have been passed in exercise of the powers under

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Section 321 of the Karnataka Municipal Corporations
Act, 1976. The petitioner cannot challenge the said
orders merely on the ground that they were passed
pursuant to directions issued by the Executing Court.
Any challenge to the said orders must be pursued by
availing the appropriate statutory remedy, subject to
the applicable provisions of the Act.

12. The judgment and decree delineated the rights of
the parties with regard to their respective entitlements
in the built-up area on the first and second floors. The
petitioner was directed to hand over the four flats
allotted to the share of respondent Nos. 1 and 2 and to
obtain a no-dues certificate from the bank from which
he had obtained the loan. These directions cannot be
stalled by relying upon the proceedings initiated by
HDMC under Section 321 of the Karnataka Municipal
Corporations Act, 1976. The two aspects have been
dealt with separately and independently in the
judgment and decree passed by the Division Bench.

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13. The Division Bench had categorically observed
that deviations from the building plan fell within the
domain of HDMC. Any deviation in any part of the
building is, therefore, a matter to be determined by
HDMC in accordance with law. Such determination shall
not prevent the petitioner from complying with the
remaining part of the decree, namely, handing over the
flats allotted to respondent Nos. 1 and 2. If any of
those flats are found by HDMC to be in violation of the
sanctioned building plan, appropriate action shall be
taken in accordance with law. The petitioner cannot
withhold delivery of the four flats on that ground and is
required to comply with the decree, which has attained
finality, without further delay.

14. In view of the above, this Court declines to
entertain the writ petition. The writ petition, being
devoid of merit, is accordingly dismissed .

15. Notwithstanding the dismissal of the writ petition,
liberty is reserved to the petitioner to avail himself of

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the appropriate remedy available under the Karnataka
Municipal Corporations Act, 1976, against the orders
produced at Annexures-M and P, if he is aggrieved and
so advised. If such an appeal is filed within 15 days
from the date of receipt of the certified copy of this
order, the time spent in prosecuting the present writ
petition shall be considered for the purpose of
condonation of delay.

Sd/-
(M.G.S. KAMAL)
JUDGE







VB/CT:VP/LIST NO.: 1 SL NO.: 1