M S Ramaiah Medical College vs Dr E Konappa Reddy
2021 Latest Caselaw 283 Kant

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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

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

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

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

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