Sri Nagarajegowda vs Sri H J Thammanegowda
2021 Latest Caselaw 6297 Kant

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 16TH DAY OF DECEMBER 2021

                         BEFORE

        THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

         WRIT PETITION NO.8734/2019 (GM-CPC)

BETWEEN :

SRI NAGARAJEGOWDA
S/O SRI JAVAREGOWDA
AGED ABOUT 45 YEARS
R/O MUDALAKOPPALU VILLAGE
DALAGOWDANAHALLI DAKHLE
HALLIMYSURU HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT - 573 210.
                                       ... PETITIONER

(BY SRI. BHARGAV., ADVOCATE FOR
    SRI.C R GOPALASWAMY, ADVOCATE)
AND :

SRI H J THAMMANEGOWDA
S/O SRI JAVAREGOWDA
AGED ABOUT 63 YEARS
R/O HALLI MYSURU VILLAGE & HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT - 573 210.
                                      ... RESPONDENT

( NOTICE TO RESPONDENT SERVER)

    THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DATED 31.01.2019 ISSUING
                                2



ARREST WARRANT AGAINST THE PETITIONER-JUDGMENT
DEBTOR PASSED BY THE ADDL. CIVIL JUDGE & JMFC,
HOLENARSIPUR IN EXECUTION PETITON NO.08/2018
VIDE ANNEXURE-D.

    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:

                        ORDER

The petitioner is the judgment debtor in

Ex.No.08/2018 on the file of the Additional Civil Judge

and JMFC, Holenarasipur (for short, 'the executing

Court'). The petitioner is aggrieved with the executing

Court issuing arrest warrant for recovery of amount

under a money decree that is put into execution. This

Court has granted interim order in the month of April

2019 subject to deposit of 50% of the decretal amount

and the learned counsel for the petitioner does not

dispute that this condition has not been complied with

even after all these months.

2. However, the learned counsel for the

petitioner submits that the executing Court's order

issuing arrest warrant cannot be sustained for the

following reasons:

a) The respondent - the decree holder has not

even in the execution petition sought for the petitioner's

arrest and no application is filed for the petitioner's

arrest. In view of the provisions of Order XXI Rule 11A

of the Code of Civil Procedure, 1908, the respondent

had to place on record an affidavit justifying the arrest.

b) The executing Court, given the provisions of

Order XXI Rule 37 of CPC, which empowers a

discretionary exercise of jurisdiction to direct detention,

should have enquired with the petitioner on why he

should not be committed to civil prison unless it was of

the opinion that the petitioner was delaying the

execution of the decree or likely to abscond or leave the

local limits of its jurisdiction. The petitioner, with the

executing Court issuing arrest warrant without the

compliance as aforesaid is denied the opportunity to

show cause against his detention.

c) The details of the petitioner's properties

which could be attached in enforcement of the decree

for recovery of money are already furnished before the

executing Court and therefore, the petitioner's warrant

is not justified.

3. It is seen from the records as well as the

impugned order that the respondent has not explained

by a way of an affidavit why the petitioner should be

detained in civil prison before coercive measures are

taken against his property. Even otherwise, it is seen

from the impugned order that there is no enquiry on the

merits of detaining the petitioner in civil prison and

much less recording of a satisfaction that the petitioner

was delaying the execution proceedings or trying to

abscond or leave the jurisdictional Court. As there is

obvious non-compliance with the required procedural

safeguards and non-application of mind. Therefore, this

Court must intervene and allow the writ petition

quashing the impugned order but observing that this

order shall not in any manner effect the respondent's

rights to recover the money dues from the petitioner

including his detention in civil prison in accordance

with law. Therefore the following

ORDER

The petition is allowed in part, and the impugned

order dated 31.01.2019 in Ex.No.08/2018 on the file of

the Additional Civil Judge and JMFC, Holenarasipur is

quashed with the observation as aforesaid.

SD/-

JUDGE

RB