Sri. Rangaswamy vs Sri. C.K. Marulasiddaiah
2021 Latest Caselaw 1132 Kant

                              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.24892 OF 2015(GM-CPC)
BETWEEN:

1.     SRI. RANGASWAMY
       FATHERS NAME NOT KNOWN
       AGED ABOUT 61 YEARS,
       SINCE DEAD LRS' ARE LREADY ON RECORD.

2.     SRI RAVIKUMAR,
       S/O RANGASWAMY,
       AGED ABOUT 26 YEARS.

3.     SRI R UMESH,
       S/O RANGASWAMY,
       AGED ABOUT 24 YEARS,
       THE PETITIONERS NO. 1 TO 4 ARE RESIDING AT
       JAYAMMA COMPOUND,3RD CROSS, 2ND DIVIATION,
       SHANTHINAGAR, TUMKUR-571 202.

4.    SMT. GOWRAMMA,
      W/O RANGASWAMY,
      AGED ABOUT 58 YEARS,
      THE PETITIONERS NO. 1 TO 4 ARE RESIDING AT
      JAYAMMA COMPOUND,
      3RD CROSS, 2ND DIVIATION,
      SHANTHINAGAR, TUMKUR-571 202.
                                           ...PETITIONERS
(BY SRI.D.R. ANANDEESWAR, ADVOCATE)

AND:

1.     SRI. C.K. MARULASIDDAIAH
       S/O LATE CHANDRASHEKARAIAH,
       AGEA OUT 53 YEARS,
       RESIDING AT KESARUMADU VILLAGE,
       URDIGERE HOBLI,
       TUMKUR TALUK AND DISTRICT-571 202.
                              2




2.     SRI RAMAKRISHNAIAH,
       S/O THIMMANAYAKA,
       AGED ABOUT 68 YEARS
       RESIDING AT D SHETTIHALLI VILLAGE, \
       DANDINASHIVARA HOBLI
       TURUVEKERE TALUK,
       TUMKUR DISTRICT.
                                      ...RESPONDENTS
(BY SRI. M.N.MADHUSUDHAN, ADVOCATE FOR R-1
    SRI.Y.T.ABHIMAN, ADVOCATE FOR
    SRI. BYREGOWDA, ADVOCATE)

       THIS W.P. IS    FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED: 04.04.2015 PASSED BY THE TRIAL
COURT IN EXECUTION PETITION NO. 15/2013 AT ANN-A AND
ETC.


       THIS W.P. COMING ON FOR PRELIMINARY HEARING IN 'B'
GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-


                          ORDER

The Judgment debtors in Ex.P.No.15/2013 filed by

respondent No.1-Decree holder before the trial Court are

aggrieved by the impugned order dated 04.04.2015,

directing issuance of arrest warrant against petitioner No.2

and re-issuance of arrest notice as against the petitioner

Nos.3 and 4.

2. Heard learned counsel for the petitioners, learned

counsel for the respondents and perused the material on

record.

3. The material on record indicates that pursuant to

the judgment and decree dated 13.03.2013 passed in

O.S.No.121/2011 decreeing the suit for recovery of money

and other reliefs field by respondent No.1-Decree holder

against the petitioners herein, respondent No.1 instituted

the aforesaid execution proceedings against the

petitioners/Judgment debtors. During the pendency of the

said petition, respondent No.2 filed an application under

Order 21 Rule 58 read with Section 151 CPC seeking

adjudication of his claim on the ground that he had right,

title, interest and possession over the schedule property

sought to be attached in the execution proceedings. It is

the grievance of the petitioner that without deciding the said

application, I.A.No.4/2014 filed by respondent No.2, the trial

Court has directed issuance of arrest warrant and arrest

notice against the petitioners, which is impermissible in law

and consequently, the impugned order passed by the trial

Court deserves to be set aside.

4. Per contra, learned counsel for the respondents

submits that there is no merit in the petition and the same is

liable to be dismissed.

5. As rightly contended by learned counsel for the

petitioner, in the light of the aforesaid application,

I.A.No.4/2014 dated 20.10.2014 being filed by respondent

No.2/objector at an anterior point of time prior to passing of

the impugned order, the trial Court committed an error in

directing issuance of arrest warrant and notice as against

the petitioners even before deciding the said application

filed by respondent No.2-objector. Under these

circumstances, I am of the considered opinion that on this

short ground alone, the impugned order passed by the trial

Court deserves to be set aside and the matter be remitted

back for disposal afresh.

6. In the result, I pass the following:

ORDER

i. The petition is allowed.

ii. The impugned order dated 04.04.2015 passed

by the Civil Judge and JMFC, Turuvekere, in

execution of Execution Petition No.15/2013 is

set aside.

iii. In the first instance, the trial Court is directed

to dispose off I.A.No.4/2014 dated 20.10.2014

filed by respondent No.2/objector under Order

21 Rule 58 read with Section 151 of CPC

before the trial Court.

iv. It is further directed that subsequent to

disposal of the said application, the trial Court

is at liberty to proceed further in the matter

against the petitioners herein.

Sd/-

JUDGE

Bmc