Sri C Gopala vs Smt. Nagamma
2022 Latest Caselaw 6263 Kant

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 07TH DAY OF APRIL, 2022

                          BEFORE

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

      WRIT PETITION NO.10404 OF 2019 (GM-CPC)

BETWEEN

1. SRI C GOPALA
S/O LATE SRI. CHIKKANNA
AGED ABOUT 70 YEARS,

2. SRI G. GANGADHARAIAH
S/O SRI GANGAIAH
AGED ABOUT 78 YEARS,

BOTH ARE R/AT SRIGANDHA KAVAL
SUNKADA KATTE
YESHWANTHPURA HOBLI
BENGALURU NORTH TALUK
BENGALURU - 560 091.
                                           ...PETITIONERS

(BY SRI C R GOPALASWAMY, SENIOR ADVOCATE FOR
SRI SOMASHEKARA K M, ADVOCATE)

AND

      1. SMT. NAGAMMA
         W/O LATE SRI. RANGANATH K.G.
         AGED ABOUT 60 YEARS,

      2. SMT. HARSHITHA R
         D/O LATE SRI RANGANATH K.G.
         AGED ABOUT 25 YEARS,
                                  2




      3. SMT. R. BRUNDHA
         D/O LATE SRI. RANGANATH K.G.
         AGED ABOUT 23 YEARS,

         ALL ARE R/AT NO. 436,
         2ND CROSS, BHYRAVESHWARANAGAR
         MAGADI MAIN ROAD,
         SUNKADAKATTE
         BENGALURU - 560 091.
                                                  ....RESPONDENTS
(BY SRI R A DEVANAND, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 16.02.2019 IN EX.CASE NO. 3578 OF 2017
ISSUING      ARREST      WARRANT       AGAINST      THE
PETITIONERS/JUDGMENT DEBTORS PASSED BY THE XX ADDL.
CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY IN
EXECUTION PETITION NO. 3578 OF 2017 VIDE ANNEXURE-E.

     THIS PETITION COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

This writ petition is filed by judgment debtors 1 and 2 in

Execution Petition No.3578 of 2017 on the file of the XX

Additional City Civil Judge, Bengaluru challenging the order

dated 16th February, 2019.

2. Relevant facts for adjudication of this writ petition are

that, the plaintiff has filed suit in Original Suit No.294 of 2012 on

the file of the trial Court seeking relief of specific performance

and the said suit came to be disposed of by judgment and

decree dated 06th April, 2017, decreeing the suit in part and the

trial Court directed defendants 1 and 2 to pay Rs.14,59,000/-

with interest at the rate of 6% per annum from the date of

entering into agreement till the date of realisation. It is

forthcoming from the writ petition papers that feeling aggrieved

by the judgment and decree passed by the trial Court, judgment

debtors have filed RFA No.1364 of 2017 before this Court and

the said appeal is pending consideration. It is also extracted in

the Order Sheet in Execution Petition No.3578 of 2017 that this

Court has directed the judgment debtor/petitioner herein to

deposit 50% of the decretal amount before this Court and the

said interim order passed by this Court in RFA No.1364 of 2017

is not complied with and accordingly, the decree

holder/respondent herein, has sought for issuance of arrest

warrant against judgment debtor, culminating in passing the

order dated 16th February, 2019 by the Executing Court. Feeling

aggrieved by the same, the judgment debtors have approached

this court.

3. I have heard Sri C.R. Gopalaswamy, learned counsel

appearing for the petitioner and Sri R.A. Devanand, learned

counsel appearing for the respondent.

4. Sri C R Gopalaswamy, learned counsel appearing for

the petitioner invited the attention of the Court to the finding

recorded by the Executing Court as well as provisions contained

under Order XXI Rule 37 of the Code of Civil Procedure and

submitted that an enquiry has to be conducted before the

Executing Court passes an order sending the judgment debtor to

the civil prison. Accordingly, he submitted that since the said

procedure not being followed by the Executing Court, the

impugned order is liable to be set aside.

5. Per contra, Sri R.A. Devanand, learned counsel

appearing for the respondent/decree holder invites the attention

of the Court to the order sheet dated 05th January, 2019 in

Execution Petition No.3578 of 2017 and submitted that judgment

debtors have not complied with the interim order passed by this

Court in RFA No.1364 of 2017 and are dodging the matter

without complying the judgment and decree passed by the trial

Court in Original Suit No.2945 of 2012 and accordingly, he

submitted that since the judgment debtors have failed to comply

with the order passed by this Court in RFA No.1364 of 2017,

there is no illegality in the impugned order passed by the

Executing Court and accordingly, he sought for dismissal of the

writ petition.

6. In the light of the submission made by the learned

counsel appearing for the parties it is not in dispute that the

judgment debtors/petitioners herein have suffered an order in

Original Suit No.294 of 2012. It is not disputed by the parties

that the said judgment and decree passed by the trial Court is

challenged before this Court in RFA No.1364 of 2017 and this

Court has granted interim order, staying the operation of

judgment and decree, subject to payment of 50% of the decretal

amount by the appellants therein/petitioners herein. However,

perusal of the record, particularly the order sheet maintained by

the Executing Court, would indicate that judgment debtors have

not complied with the said order. Be that as it may, the

language employed in Order XXI Rule 37 of the Code of Civil

Procedure is to the effect that the Executing Court, before

issuing the arrest warrant, ought to have conducted an enquiry

and thereafter should have passed appropriate orders

considering the case on merits. No doubt, the procedure

prescribed under Rule 40 of Order XXI of Code of Civil Procedure

mandates that an enquiry has to be conducted before the

Executing Court passes an order sending the judgment debtor to

the civil prison. However, taking into consideration the

impugned order passed by the Executing Court wherein such

procedure having not been complied with, I am of the view that

the impugned order passed by the Executing Court against the

judgment debtors/petitioners herein is incorrect and is liable to

be set aside. I find force in the submission made by Sri R.A.

Devanand, learned counsel appearing for the respondent/decree

holder that though the judgment and decree dated 06th April,

2017 passed by the trial Court in Original Suit No.294 of 2012,

however, the decree holder is not able to enjoy the fruits of the

decree. It is also not disputed by the parties that this Court has

granted interim order of stay of the judgment and decree in

Original Suit No.294 of 2012 subject to the appellants therein

depositing 50% of the decretal amount and however, the same

has not been complied with. In that view of the matter, I am of

the view that to meet the ends of justice, an opportunity be

given to the judgment debtors to file objection to the

application/to the Execution Petition No.3578 of 2017 on the

next date of hearing, i.e. on 13th April, 2022 and the Executing

Court shall consider the same and pass suitable orders in

accordance with law, within an outer limit of two months

therefrom. Petition is accordingly disposed of.

Sd/-

JUDGE

lnn