The Deputy Commissioner And Ors vs Shankar S/O Hobu @ Hebu Lamani
2021 Latest Caselaw 6829 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 20TH DAY OF DECEMBER, 2021

                           BEFORE

            THE HON'BLE MR. JUSTICE M.I.ARUN

     WRIT PETITION NO.201400/2021 (GM-CPC)

Between:

1.     The Deputy Commissioner
       Vijayapura

2.     The Rehabilitation Officer
       U.K.P., Almatti
       Tq. Basavana Bagewadi
       Dist. Vijayapura

3.     The Assistant Executive Engineer
       No.4, Rehabilitation Sub-Division
       UKP, Almatti
       Tq. Basavana Bagewadi
       Dist. Vijayapura
                                           ... Petitioners

(By Sri Mallikarjun C. Basareddy, Advocate)

And:

Shankar S/o Hobu @ Hebu Lamani
Age: 52 years, Occ: Coolie
R/o Chimmalagi Tanda (Sheekalwadi R.C)
Tq. Basavan Bagewadi
Dist. Vijayapura
                                           ... Respondent
(By Sri D.P. Ambekar , Advocate)
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      This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying to issue a writ of
certiorari quashing the impugned order passed by the
Addl. Civil Judge and JMFC at Basavana Bagewadi on I.A.
No.IV in Execution Petition No.08/2019 on 23.12.2020 vide
Annexure-A and pleased to pass appropriate orders in
favour of the writ petitioners, in view of the facts and
circumstances and also as deemed fit and proper by this
Court to meet the ends of justice and equity.

      This petition coming on for Preliminary Hearing this
day, the Court made the following:

                        ORDER

The respondent herein filed a suit for damages in

O.S.No.428/2010 on the file of Civil Judge, Basavana

Bagewadi. The suit was decreed. Aggrieved by the same,

the petitioners-State preferred an appeal by way of

R.A.No.12/2020 on the file of Senior Civil Judge, Basavana

Bagewadi. In the meanwhile, the respondent herein filed

an execution petition by way of E.P.No.8/2019 on the file

of Addl. Civil Judge, Basavana Bagewadi, pursuant to

which certain movable properties of the petitioners-State

were attached. Thereafter, the First Appellate Court was

pleased to stay the operation and execution of the

judgment and decree in O.S.No.428/2010 on 07.12.2020.

2. It is submitted that the said interim order is

still continuing. After obtaining the interim order in the

First Appellate Court, the petitioners herein filed an

application by way of I.A.No.IV in E.P.No.8/2019 for return

of attached properties to the custody of judgment debtors.

The Trial Court by observing as mentioned hereunder has

dismissed the I.A.

"8. That, herein the application JDR No.2 and 3 sought release or return of attached properties by contending that, appellate court has stayed the operation of judgment and decree passed by this court. They have produced only ordersheet of the appellate court. Wherein, delay was condoned and stay has been granted for a period of six months. In view of the said order, future proceedings of the present execution petition is stayed for period of six moths. Therefore, this court is no jurisdiction to further proceed on attached properties either sale or release or return. Hence, this court answered the Point No.1 in the negative."

Aggrieved by the same, the instant writ petition is

filed.

3. The contention of the learned High Court

Government Pleader is that, once the operation and

execution of the judgment and decree of the Trial Court

itself is stayed, the Trial Court ought to have allowed the

I.A. filed by the petitioners herein in the execution

proceedings. It is his contention that once the operation

and execution of the judgment and decree is stayed, all

proceedings pursuant to the said judgment get stayed. It

is further contended that the Executing Court has no place

to store the attached properties and the decree holder was

directed to take the custody and preservation of the

properties until further orders. It is further contended that

the properties seized also includes Attendance Register

and the like which is of no value to the respondent herein,

but undue hardship is caused to the petitioners. On the

said grounds, it is prayed that the writ petition be allowed.

4. Per contra, learned counsel for the respondent

submits that with a great difficulty, he is able to seek for

attachment of the said properties and if the same are

ordered to be released, he will put to irreparable loss and

injury in the event the regular appeal is dismissed.

5. Admittedly, the operation and execution of the

judgment and decree passed in O.S.No.428/2010 has been

stayed. Under the said circumstances, the properties of the

petitioners/judgment debtors cannot be attached and sold.

The fact of the judgment and decree being stayed is not in

dispute. The Executing Court erred in holding that he has

no jurisdiction to decide as to return of the documents

seized and attached under the execution proceedings. The

order of the First Appellate Court is not one that of status

quo for the Executing Court to state that the Court has no

jurisdiction to release or return the attached properties.

Definitely, the Trial Court could not have gone ahead with

the sale of the properties, but it should have considered

whether the properties attached should be returned or not

in the light of the First Appellate Court staying the

operation and execution of the judgment and decree of the

Trial Court.

6. The apprehension of the respondent is that if

regular appeal were to be dismissed, in that event it would

be very difficult for him to again seek attachment of the

property. Admittedly, the petitioners herein have suffered

a decree at the hands of the Trial Court. The interest of

justice would be met if the operation and execution of the

judgment and decree passed by the Trial Court be stayed

subject to petitioners depositing certain amounts.

7. Under the peculiar facts and circumstances of

the case, I am of the opinion that in the interest of justice,

it would be appropriate to allow the writ petition directing

the release of the properties seized subject to the

petitioners depositing 25% of the decreetal amount before

the Trial Court. Hence, the following:

ORDER

i) The writ petition is allowed.

ii) The impugned order dated 23.12.2020 passed

on I.A.No.IV in E.P.No.8/2019 on the file of

Addl. Civil Judge, Basavana Bagewadi is hereby

set aside.

iii) The decree holder/respondent herein is

directed to hand over the seized and attached

properties of the judgment debtors/petitioners

herein through the Executing Court.

iv) The petitioners/judgment debtors are directed

to deposit 25% of the decreetal amount in

O.S.No.428/2010 before the Executing Court

and the same shall be deposited in an interest

bearing Fixed Deposit in any Nationalized

Bank.

     v)     No order as to costs.



                                        SD/-
                                       JUDGE
LG