Sri Raju M vs Shubhoadayasiri Chits Fund (K) ...
2022 Latest Caselaw 3950 Kant

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 08TH DAY OF MARCH 2022

                           BEFORE

   THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

       WRIT PETITION No.11324 OF 2017 (GM-CPC)

BETWEEN:

1. Sri Raju M.,
   Son of Thukra Baira,
   Aged about 44 years,
   Residing at No.1-100,
   Veerakamba,
   Bantwal-575 101.
   Dakshina Kannada District.

2. Sri Prakash Kumar,
   Son of Gangadhar,
   Aged 43 years,
   Residing at Door No.7-238,
   Moodabidri Town,
   South Block,
   Block No.7, Pranthya,
   Mangalore-575 009.                .. Petitioners

 ( By Sri S.Rajashekar, Advocate )

AND:

1. Shubhoadayasiri Chits Fund
   (K) Pvt. Ltd.,
   D.No.2-44/1, "Ashraya",
   Near Rai Petrol Pump, NH 66,
   Kulai, Hosabettu,
   Mangalore-575 010,
   Represented by its
   Authorised Person,
   Mr.Santhosh Padiyar.
                                             WP.No.11324/2017
                               2


2. Durga Prasad (dead) by LRs.
   Mohan Shetty,
   Aged : Major,
   Residing at D.No.2-164/1,
   Kundottur House, Badaga,
   Yedapadav,
   Mangalore-575 008,
   D.K.District.

3. Smt.Prema Shetty,
   Wife of Mohan Shetty.
   Aged : Major,
   Residing at D.No.2-164/1,
   Kundottur House, Badaga,
   Yedapadav,
   Mangalore-575 008,
   D.K.District.

4. Sri Girish,
   Son of Sanjeeva,
   Aged : Major,
   Residing at D.No.4-313,
   Kotekar,
   Mangalore-575 001,
   D.K.District.

5. Sri B.N.Girish,
   Son of Madhava,
   Aged : Major,
   Residing at D.No.20-10-1450,
   Bolara PNT Quarters, Sec. 3,
   Mangalore-575 003,
   D.K.District.                            .. Respondents

 ( By Sri P.N.Manmohan, Advocate for R-1,
   R-2, R-3 and R-4 are served,
   Notice to R-5 dispensed with
   Vide order dated 21.06.2017)
                                                    WP.No.11324/2017
                                 3


      This Writ Petition is filed under Article 227 of the
Constitution of India praying to issue a writ of certiorari to quash
the order dated 08.06.2016 and 30.01.2017, passed in Execution
Petition No.118/2016 on the file of IV Addl.Civil Judge and JMFC,
Mangalore vide Annexure-A in so far as the petitioners are
concerned in the interest of justice and equity and to issue any
other writ, order or direction and grant such other and further
reliefs as this Hon'ble Court deems fit and        proper under the
circumstances of this case, in the interest of justice and equity.


      This Writ Petition is coming on for Preliminary Hearing in
`B' group through Physical Hearing/Video Conference this day,
the Court made the following :


                              ORDER

The present petitioners are admittedly Judgment

Debtors 5 and 6 (hereinafter for brevity referred to as

`JDRs'), who are suffering the judgment and decree passed

in Dispute No.45/2015-16, dated 14.12.2015, passed by

the Deputy Director of Co-operative Societies, Mangaluru.

The respondent No.1 herein is the decree holder-

Establishment. Being aggrieved by the order dated

30.01.2017 passed by the learned IV Addl.Civil Judge and

J.M.F.C., Mangalore, (hereinafter for brevity referred to as WP.No.11324/2017

`Executing Court'), in Execution Case No.118/2016,

wherein the salary of the present petitioners has been

ordered to be attached, they are before this Court seeking

quashing of the said order.

2. Heard the submission of learned counsel from both

side.

3. It is an undisputed fact that the present respondent

No.1 is the decree holder, in whose favour, a money decree

has been passed and admittedly it has filed Execution

No.118/2016 before the Executing Court, seeking for

recovery of a sum of `10,48,666/-. The present respondent

No.2 is the legal representative of the original borrower and

JDR No.1. The other respondent Nos.3, 4 and 5 are JDR

Nos.2, 3 and 4. The present petitioners are JDR Nos.5

and 6. In the impugned order, the Executing Court has

passed an order for attachment of salary of the JDR Nos.3,

4, 5 and 6. Challenging the said order, two of them i.e.,

JDR Nos.5 and 6 are before this Court.

WP.No.11324/2017

4. The only contention of the learned counsel for the

petitioners is that since the Executing Court has already

proceeded against the immovable property by passing an

attachment order and the said property is under the process

of identification, it ought not to have proceeded to pass the

impugned order by ordering attachment of salary of the

Judgment Debtors.

5. Admittedly, the decree under execution was against

all the judgment debtors holding them jointly and severally

liable to the decree holder. When the present petitioners

were also the judgment debtors, who were jointly and

severally liable for the decree holder, they cannot expect

the decree holder to first proceed only against JDR No.1 and

thereafter, to approach them for the alleged deficiency in

recovery, if any. In such a view of the matter, when the

liability of the guarantor or the surety is co-extensive along

with original borrower, which is said to have been

recognised by the Executing Court, the contention of the

present petitioners that the Executing Court ought not to WP.No.11324/2017

have ordered for attachment of salary of the present

petitioners is not based on sound arguments.

Accordingly, the Writ Petition stands dismissed.

Sd/-

JUDGE

bk/