Karnataka High Court
Basavaraj S/O. Parasappa Halli vs Siddappa S/O. Parasappa Halli on 16 March, 2022
Bench: Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 16TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 72217 OF 2012 (GM-CPC)
BETWEEN:
SRI. BASAVARAJ S/O. PARASAPPA HALLI
AGE ABOUT 28 YEARS, R/O. KADAGANAR, MUDHOL TALUK,
DIST: BAGALKOTE
...PETITIONER
(BY SRI. M C HUKKERI.,ADVOCATE)
AND:
1. SIDDAPPA S/O. PARASAPPA HALLI
AGE: 21 YEARS, R/O. LOKAPUR, TQ:MUDHOL,
DIST: BAGALKOT
2. KUMAR BULLAPPA S/O. PARASAPPA HALLI
AGE: 14 YEARS, R/O. LOKAPUR, MUDHOL TALUK,
BAGALKOT DISTRICT, RESPONDENT NO.2 MINOR R/BY
HIS NEXT FRIEND BY NATURAL GUARDIAN MOTHER
RESPONDENT NO.3 HEREIN.
3. SMT. SAYAWWA W/O. PARASAPPA HALLI
AGED ABOUT 40 YEARS, R/O. LOKAPUR, TQ:MUDHOL,
DIST: BAGALKOT
4. THE STATE OF KARNATAKA
R/BY DEPUTY COMMISSIONER BAGALKOT
DIST: BAGALKOT
5. ACCOUNTANT GENERAL ( A and E)
BANGALORE
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WP No. 72217 of 2012
6. SMT. SHIVAKANTAWWA W/O. PARASAPPA PATIL
AGE ABOUT 46 YEARS, R/O. KODAGANUR, TQ: MUDHOL,
DIST: BAGALKOT
...RESPONDENTS
(NOTICE TO R1 HELD SUFFICIENT;
SRI. N.L.BATAKURKI, ADVOCATE FOR R2 AND R3;
SRI. PRAVEEN K. UPPAR, HCGP FOR R4 AND R5;
R2 IS MINOR, REPTD. BY R3
NOTICIE TO R6 DISPENSED WITH)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED
ORDER DATED:21/07/2012 PASSED ON I.A.NO.1 IN E.P.NO.10/2008
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AT:MUDHOL VIDE
(ANNEXURE-E) AS THE SAME IS ILLEGAL, ARBITRARY, AND
WITHOUT THE AUTHORITY OF LAW, ETC.,
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the
following reliefs :
(a) Issue a writ of certiorari or any other
appropriate writ or order quashing the
impugned order dated 21.07.2012 passed on
I.A.No.I, in E.P.No.10/2008 on the file of the
Prl. Civil Judge, at Mudhol vide (Annexure-E)
as the same is illegal, arbitrary and without
the authority of law.
(b) Issue a writ of mandamus or any other
appropriate writ, order or direction directing
the respondents No.4 and 5 not to deduct the
salary of the petitioner herein consequent
upon quashing the order at Annexure-E.
WP No. 72217 of 2012
2. O.S.No.87/2005 had been filed by the respondent
No.1, 2 and 3 seeking for the declaration that they
are entitled for the family pension on account of
Parasappa Halli and who is the husband of
respondent No.3. In the said suit the first wife of
Parasappa Halli has arrayed as defendant No.3 and
the son from the first wife has been arrayed as
defendant No.5.
3. The trial Court vide its Judgment dated 10.07.2006,
declared plaintiff Nos.1 and 2 i.e. the children to be
entitled to receive the family pension along with the
defendant No.3 the first wife, till they attain the age
of majority and directed the Accountant General to
consider and make payment of the said family
pension to plaintiff Nos.1 and 2.
4. The said plaintiffs filed execution proceedings in
E.P.No.10/2008. In the said proceedings, the decree
holder sought for an amount of Rs.2,22,273/- along
WP No. 72217 of 2012
with 18% interest to be recovered from J.Dr. Nos.3
and 4 by attachment of salary, movables or by sale
of the same. It is in pursuance thereof, that the
impugned order dated 21.07.2012 have been passed
by the Principal Civil Judge, Mudhol in
E.P.No.10/2008, directing the attachment of the
salary of J.Dr.No.4 i.e. defendant No.4 in the
aforesaid suit. It is aggrieved by the same, the said
J.Dr.No.4/defendant No.4 is before this Court.
5. Sri. M.C.Hukkeri, learned counsel for the petitioner
submits that, there is no Judgment which has been
passed against the petitioner who is defendant No.4.
Defendant No.4 has not received any family pension.
The pension if any is received by the defendant No.3.
There being no Judgment passed against the
defendant No.4, the question of executing the
Judgment against the defendant No.4 would not
arise. Let alone the question of attachment of the
salary of defendant No.4.
WP No. 72217 of 2012
6. Per contra, Sri. N.L.Batakurki, learned counsel for
respondent Nos.2 and 3 submits that, both J.Dr.
No.3 and 4 have received the family pension and
therefore the execution proceedings had been filed
against both the J.Dr. Nos.3 and 4, who are
defendant Nos.3 and 4 in this suit.
7. Heard Sri. M.C.Hukkeri, learned counsel for the
petitioner, HCGP for respondent Nos.4 and 5 and Sri.
N.L.Batakurki for respondent Nos.2 and 3. Perused
the papers.
8. As observed above, the Judgment and Decree in
O.S.No.87/2005 only declares that the plaintiff Nos.1
and 2 therein will be entitled for family pension along
with defendant No.3. Defendant No.4 who is J.Dr.
No.4 being a major at that time, no family pension
was awarded to defendant No.4. Thus, in my
considered opinion it cannot be now said that the
J.Dr. No.4 who had not been awarded any family
pension has received any amount so as to enable the
WP No. 72217 of 2012
enforcement of the decree against the J.Dr. No.4 and
or for his salary to be attached.
9. In view thereof, the execution Court not having
appreciated the Judgment and Decree which had
been passed and having gone beyond the Judgment
and Decree by executing the Judgment against the
person against whom no Judgment had been passed,
has committed a serious error in law. As such, I pass
the following:
ORDER
(i) A certiorari is issued.
(ii) The impugned order dated 21.07.2012
passed on I.A.No.1 in E.P.No.10/2008
by the Principal Civil Judge, Mudhol, is
hereby quashed.
(iii) The other respondents are restrained
from deducting any amount from the
salary of the petitioner. Liberty is
however reserved to the respondent
Nos.1 and 2 to proceed against the
Judgment Debtor No.3 against whom
WP No. 72217 of 2012
the Judgment in O.S.No.87/2005 has
been passed.
Sd/-
JUDGE
SVH
