Shree Jagadguru vs A S Mallikarjunaiah
2022 Latest Caselaw 6024 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 04TH DAY OF APRIL, 2022

                      BEFORE

      THE HON'BLE MR. JUSTICE E.S.INDIRESH

          W.P. NO. 29906 OF 2019(GM-CPC)


BETWEEN

SHREE JAGADGURU
MURUGHARAJENDRA
VIDYA PEETA
REPRESENTED BY ITS SECRETARY
S J M VIDYA PEETA,
A J PRAMASHIVAIAH
AGE 57 YEARS,
SREE MURUGHA MATH
CHIATRADURGA TOWN-577502
                                          ...PETITIONER
(BY SRI : M S PARTHASARATHI, ADVOCATE)

AND

A S MALLIKARJUNAIAH
S/O LATE A SHIVANNA
LABORATORY TECHNICIAN
G H R LAYOUT ,
N.H.-13, SERVICE ROAD
CHITRADURGA TOWN-577502

                                         ....RESPONDENT
(BY SRI MANJUNATHA L S, ADVOCATE)

    THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
                               2




QUASH THE ORDER DATED 27TH APRIL, 2019 IN EX NO.290
OF 2017 THE EXECUTING COURT ON MEMO CALCULATION
FILED BY THE RESPONDENTS VIDE ANNEXURE-M PASSED BY
THE HON'BLE COURT OF PRL. DISTRICT AND SESSIONS
COURT, DAVANAGERE.

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


                           ORDER

This Writ Petition is filed by the judgment debtor in

Execution Petition No.293 of 2017 on the file of Principal

District Judge, Davangere, challenging the order dated

27.04.2019.

2. Perusal of the writ papers would indicate that the

respondent herein has filed an appeal under Section 94

Karnataka Education Act 1983 in MA(EAT) No.2 of 2012 on

the file of the trial Court, seeking setting aside the order of

termination dated 07.01.2011 with consequential reliefs. The

said appeal came to be allowed by the trial Court by order

dated 07.12.2016 as per Annexure-A. Thereafter, the decree

holder/respondent herein has filed Execution Petition No.290

of 2017 on the file of the trial Court and in the said

proceedings, the decree holder has filed memo of calculation

with regard to arrears of salary and made a claim before the

Executing Court. The Executing Court, after considering

material on record by impugned order dated 27.04.2019,

directed the judgment debtor/petitioner herein to pay sum of

Rs.21,86,650/-, out of which Rs.6,19,847/- paid by the

decree holder to the judgment debtor. Feeling aggrieved by

the same, judgment debtor has presented this Writ Petition.

3. Sri Sriknath learned counsel appearing for the

petitioner argued that the petitioner-Institution is a private

unaided Institution and therefore, the respondent herein is

not entitled for the consequential benefits-incentives as

ordered by the trial Court i.e. HRA CCA and DA and the said

aspect has not been considered by the trial Court and he

further argued that, the trial Court accepted the memo of

calculation filed by the respondent without any appreciation

of the same. Accordingly, he sought interference of this

court.

4. In the light of the submission learned counsel

appearing for the petitioner, I have carefully considered the

impugned order passed by the trial Court, dated 27.04.2019.

The trial Court, has accepted the memo filed by the decree

holder, and after deducting amount which is already been

paid to the respondent herein, arrived at a conclusion that

the respondent herein is entitled for Rs.15,66,803/-.

Undisputably, the petitioner-Institution is an unaided

Institution and the trial Court ought to have considered the

fact that whether the salary particulars including the

incentives as sought for by the decree holder entitled for

under law or not? In that view of the matter, I am of the

view that as there is no discussion in the impugned order

relating to said aspect of the matter, in my opinion impugned

order passed by the trial Court dated 27.04.2019, based on

the memo of calculation filed by decree holder/respondent

which requires revisit by the trial Court after considering the

fact that whether the respondent herein is entitled for

incentives as sought in the memo of calculation. Accordingly,

the Writ Petition is allowed. Order dated 27.04.2019 is set

aside. The trial Court shall consider the memo of calculation

filed by the decree holder afresh after hearing both the sides.

If any amount, deposited by the petitioner herein before this

Court, is to be transmitted to the trial Court for final disposal

in the execution proceedings.

Sd/-

JUDGE

SB