Karnataka High Court
Mr Sathish S K vs M/S Margadarsi Chits (K) Pvt Ltd on 18 January, 2021
Author: S R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 18TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.32743 OF 2015 (GM-CPC)
BETWEEN:
MR SATHISH S K
S/O LATE TANIYA POOJARY
MAJOR, AGE 45 YEARS.
KALMADY BATALA
NEAR GARODI, POST MALPET-576 108
UDUPI.
...PETITIONER
(BY SRI. K. CHANDRANATHA ARIGA , ADV.)
AND:
1. M/S MARGADARSI CHITS (K) PVT LTD
I FLOOR, PARADIGM PLAZA,
A B SHETTY CIRCLE
MANGALORE-575 001.
2. MRS ASHA S
MAJOR W/O SATHISH S K
KALMADY BATALA
NEAR GARODI, MALPE POST
UDUPI-574 201.
3. MR. LAKSHMEESHA BHAT
MAJOR
S/O T KRISHNA BHAT,
RAJ KAMAL, TENKANDIDIYOOR
THOTTAM POST, UDUPI-574201.
4. MR. SURESH POOJARY
MAJOR S/O KTTA POOJARY
S P CHICKEN CENTRE, MADI ROAD,
PETHRI, CHERKODY VILALGE,
UDUPI-574201.
2
5. MR K BALAKRISHNA
MAJOR
S/O KORAGA SHERIGAR
H NO.6-1-48 D9 KRISHNA NIVAS
NEAR BUNTS HOSTEL,
UDUPI-574201.
...RESPONDENTS
(BY SRI. P.P. JAYAKUMARA, ADV. FOR R1
(V/O.DTD.05/10/2015 R-2 TO R-5 ARE DELETED)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS IN EXECUTION CASE NO. 99/2011 ON THE FILE OF
THE CIVIL JUDGE AND JMFC MANGALORE D.K AND QUASH THE
ORDER DATED: 10.03.2015 IN EXECUTION CASE NO. 99/2011 ON
THE FILE OF THE CIVIL JUDGE AND MANGALORE, D.K VIDE
ANN-D AND ETC.
THIS W.P. COMING ON FOR PRELIMINARY HEARING IN 'B'
GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In this petition filed by the judgment debtor No.2 in
Ex.Petition No.99/2011 on the file of Civil Judge & JMFC,
Mangalore, Dakshina Kannada, the petitioner seeks
quashing of the impugned order at Annexure-D dated
10.03.2015, whereby the application filed by judgment
debtor No.1 under Section 151 CPC was dismissed by the
trial court.
2. Heard the learned counsel for petitioner and
learned counsel for respondents and perused the material
on record.
3. The material on record indicates that it was the
specific contention of the petitioner that having regard to
the provisions contained in Section 39 CPC, the trial court
(Executing court) did not have territorial jurisdiction to
adjudicate upon the Execution petition filed by the
respondent-Decree holder. It is therefore contended that
non-consideration and non-appreciation of the said
contention urged by the petitioner has occasioned failure of
justice warranting interference by this Court under Section
227 of the Constitution of India.
4. Per contra, learned counsel for the respondent
submits that there is no merit in the petition and the same is
liable to be dismissed.
5. A perusal of the impugned order will indicate that it
was the specific contention that the judgment debtors were
not residing within the territorial jurisdiction of the trial court
(Executing court) and that the properties which was the
subject matter of the execution proceedings were also not
within the territorial jurisdiction of the Executing Court, (trial
court) has not been considered or appreciated in the light of
Section 39 CPC, which has resulted in an erroneous
conclusion culminating in the impugned order. Under these
circumstances, without expressing any opinion on the
merits / demerits of the rival contentions, I deem it fit and
proper to dispose of this petition by setting aside the
impugned order and remitting the matter back to the
Executing court for reconsideration afresh.
6. In the result, I pass the following:-
ORDER
(i) Petition is allowed.
(ii) The impugned order dated 10.03.2015 passed in
Ex.Petition No.99/2011 passed by the Executing court (trial
court ) is set aside.
(iii) The matter is remitted back to the trial court
(Executing court) to reconsider afresh the application filed
under Section 151 CPC bearing in mind Section 39 CPC
and in accordance with law.
(iv) All rival contentions between the parties are kept
open and no opinion is expressed on the same.
Sd/-
JUDGE
Srl.
