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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.174 OF 2021(GM-CPC)
BETWEEN:
M S RAMAIAH MEDICAL COLLEGE,
MSR NAGAR MSRIT POST ,
BENGALURU - 560054.
REP BY ITS PRINCIPAL AND DEAN
DR MEDHA Y RAO.
...PETITIONER
(BY SRI. AMRUTHESH C, ADVOCATE)
AND:
DR E KONAPPA REDDY,
S/O ERAPPA REDDY,
AGED ABOUT 56 YEARS,
R/AT NO 71, 4TH CROSS, 14TH BLOCK,
NAGARBHAVI 2ND STAGE,
BENGALURU - 560072.
... RESPONDENT
(BY SRI.S H RAGHAVENDRA, ADVOCATE FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ISSUANCE OF THE NOTICE DATED 08.12.2020 PASSED IN
EXECUTION CASE NO.1834/2020 ON THE FILE OF THE
LEARNED 65TH ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE CCH-66 BENGALURU MARKED AS ANNEXURE-H AND
ETC.,
THIS PETITION COMING ON FOR ORDERS THIS DAY
THROUGH PHYSICAL HEARING, THE COURT MADE THE
FOLLOWING:-
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ORDER
Petitioner being the Judgment Debtor in Execution Case No.1843/2020 is knocking at the doors of Writ Court, regardless of the text of prayer in substance, for halting the execution proceedings till after his Misc. No.341/2020 for review is heard & decided; he also has a short grievance that his application in IA No.2 filed in the said Miscellaneous needs to be considered for a direction to the respondent-Decree Holder to produce/furnish four documents/information specified in the said application.
2. The respondent-Decree Holder having entered Caveat through his counsel, vehemently opposes the writ petition submitting that it is only a procrastination tactic calculated to harass him and therefore, Writ Court should not interfere in the matter; he also contends that application for summoning of the information/documents from the side of the respondent is misconceived once the order in Execution is made.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court 3 is inclined to grant a limited indulgence in the matter as under and for the following reasons:
a) the order dated 10.06.2020 a copy whereof is at Annexure-A made by the Educational Appellate Tribunal in respondents' MA (EAT)/13/2017 is sought to be enforced in Ex. Case No. 1834/2020; the petitioner has moved Misc. No.341/2020 seeking review of the said order and that it has also moved an application under Order XI Rules 14 & 16 of CPC, 1908 for a direction to the respondent-Decree Holder to produce the documents/information as sought for in the said application; that being the position, ordinarily the execution could not have proceeded pending consideration of the review.
b) It is not the case of the respondent-Decree Holder that he is jobless or in any difficulty; he is a qualified Medical Practitioner and that he has been practicing medicine even now; in fact, he has admitted in the cross-examination that he was gainfully employed during the relevant period; if the execution petition was of a peasant, a poor farmer or a hapless laborer, the considerations would have been much different and that courts would not delay execution proceedings; that is not 4 the case here; no prejudice would be caused to the respondent-decree holder if execution proceedings are kept in suspended animation till after early disposal of the Review Petition; it is almost a settled legal position that the Executing Court has discretion to defer execution in exercise of power availing u/o XXI Rule 26 of the Code in circumstances of the kind; this discretion having not been properly exercised, there is an error apparent on the face of the record warranting indulgence of writ court.
c) The second but short grievance of the petitioner that the imformation/documents touching the ground on which review is founded are within the special knowledge of the respondent-decree holder and therefore, his application filed in the Miscellaneous Case, needs to be favoured directing the respondent-decree holder to furnish the same, has lot of force vide Section 106 of Indian Evidence Act, 1872 which learned counsel for the petitioner heavily banks upon; however, there is also some force in the contention of the learned counsel for the decree holder that the petitioner is not justified in seeking all the information sought for in the application; suffice it 5 to say that the respondent should make available to the petitioner the relevant documents/information.
In the above circumstances, this writ petition succeeds in part; learned judge of the Court below is requested to defer the Execution proceedings till after petitioner's Review vide Misc. No.341/2020 is considered; petitioner's subject application in the said Misc. Case having been favoured in part, the respondent is directed to furnish the copies of the following, forthwith:
i) the Statement of Accounts maintained by the respondent in all the banks, societies and financial institutions, to the petitioner;
ii) the authenticated copies of Income Tax Returns for the period 2017-18, 2018-19 & 2019-20 to the learned Judge of the court below in a sealed cover who would permit the petitioner to view the same if & when recording evidence in the Misc. Case.
Learned judge of the Court below is requested to consider & dispose off the petitioner's Misc. No.341/2020 6 within an outer limit of four weeks from the date the above information/documents are furnished by the petitioner.
All contentions of the parties are kept open. No costs.
Sd/-
JUDGE Bsv