Karnataka High Court
Sri S R Manjappa vs Sri Mahabaleshwara Nagabhatt on 12 May, 2022
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
WRIT PETITION NO.37754 OF 2017 (GM-CPC)
BETWEEN:
SRI S.R.MANJAPPA
S/O RAMAPPA,
AGED ABOUT 50 YEARS,
NEHARUNAGAR, SAGAR TOWN,
SAGAR TALUK - 577 401,
SHIVAMOGGA DISTRICT. ... PETITIONER
(BY SRI NATARAJU, ADVOCATE FOR
SRI PRUTHVI WODEYAR, ADVOCATE)
AND:
SRI MAHABALESHWARA NAGABHATT
S/O NAGA BHATTA,
AGED ABOUT 68 YEARS,
R/O SHANKAR MUTT,
AGRAHARA EXTENSION,
SAGAR TOWN, SAGAR TALUK - 577 401,
SHIVAMOGGA DISTRICT. ... RESPONDENT
(BY SRI BIMBADHAR M. GOWDAR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN
RELIEFS.
2
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
Sri.Nataraju, learned counsel on behalf of Sri.Pruthvi
Wodeyar, for petitioner has appeared through video
conferencing.
Sri.Bimbadhar M.Gowdar, learned counsel for
respondent, has appeared in person.
2. The parties are referred to as per their ranking
before the trial court.
Plaintiff initiated action against the defendant on the
file of the Court of Additional Senior Civil Judge & JMFC,
Sagar with a prayer to refund of earnest money with
interest contending that the defendant is the absolute
owner in possession of the plaint schedule property and
had agreed to sell the property to the plaintiff for a total
sale consideration of Rs.37,50,500/- (Thirty Seven Lakhs
Fifty Thousand and Five hundred only) and in that regard
agreement for sale dated 17.11.2011 was entered and the
plaintiff paid a sum of Rs.5,00,000/- and within one month
from the date of the agreement, he had to pay the balance
sale consideration and the defendant had to execute the
registered sale deed. It is also contended that due to
dispute with regard to the boundary, the plaintiff got
issued the legal notice to the defendant stating that he
would cancel the agreement and directed him to pay the
advance amount with interest at the rate of 15% p.a. The
defendant did not pay the amount and tried to alienate the
property. Hence the suit.
After service of summons, the defendant entered
appearance and contested the suit by filing the written
statement. The trial court decreed the suit on 13.03.2017.
The plaintiff filed execution petition in Ex.P.No.40/2017
with a prayer to attach the movables of the judgment
debtor, for arrest of judgment debtor and detention in civil
prison and for attachment and sale of schedule property.
Subsequent to the filing of the execution petition, the
executing court by order dated 23.06.2017 issued arrest
notice to the defendant/judgment debtor by dispensing
with issuance of notice in view of provisions of Order 21
Rule 22 of CPC. The judgment debtor failed to appear.
The executing court vide order dated 13.07.2017 issued
arrest warrant.
The judgment debtor filed an application for recalling
the order dated 13.07.2017. plaintiff- decree holder filed
objections. It is stated that the judgment debtor filed a
memo for auction of the property for recovery of money.
The decree holder filed objections contending that the
judgment debtor can pledge or mortgage the property
elsewhere to discharge the claim and also contended that
the judgment debtor cannot direct the decree holder
regarding the mode of recovery.
The Executing Court vide order dated 09.08.2017
dismissed the application.
Under these circumstances, the petitioner having left
with no other of alternative and efficacious remedy has
filed this writ petition under article 226 and 227 of the
Constitution of India.
3. Learned counsel for petitioner and respondent
have urged several contentions.
4. Heard the contentions urged on behalf of
parties and perused the writ papers with utmost care.
5. The real and short question which requires
consideration is whether the order passed by the executing
court requires interference by this court?
The facts have been sufficiently stated. It is not in
dispute that the decree holder filed execution petition for
recovery of money as per the decree dated 13.03.2017
passed in O.S.NO. 25/2013. It is also not in dispute that
as per the decree, the judgment -debtor is liable to pay a
sum of Rs.5,00,000/- with interest at the rate of 10% per
annum from 17.11.2011 till realization.
The order sheet of the execution case is at
Annexure-E. I have perused the same with care. The
order sheet dated 23.06.2017 depicts that the issuance of
show cause notice to the judgment debtor was dispensed
with by the executing court since the petition was filed
within 2 years. The executing court issued arrest notice to
the judgment debtor by 13.07.2017. The petition was
posted to 13.07.2017 and the judgment debtor did not
attend the court, hence the Executing Court issued arrest
warrant against the judgment debtor by 28.07.2017.
Suffice it to notice that on 19.07.2017, the judgment
debtor filed advanced application for advance of the
petition and filed application i.e., I.A.NO.2 to recall the
order dated 13.07.2017. The case was ordered to be
called on 20.07.2017. The decree holder filed objections.
The proceedings continued at intervals.
It is relevant to note that the reason accorded by the
judgment-debtor for recalling the order is that the
advocates did not attend the court on account of death of
one of the advocates at Sagar. The Executing Court in
extenso referred to the contentions and ultimately
concluded that the reasons for non-appearance is not a
valid and sufficient reason. I quite agree with the finding
of the Executing Court. The same does not require any
interference by this court.
In so far as the order on memo also, the Executing
court in extenso referred to the contentions urged on
behalf of the parties and has rightly held that the
judgment-debtor has not made out a sufficient ground to
direct the property for recovery of decretal amount.
I may venture to say that the Executing Court rightly
concluded that the judgment- debtor has not made a
sufficient ground to recall the arrest warrant issued against
him and also not made out any sufficient ground to direct
the decree holder to auction the property for recovery of
the amount.
Learned counsel for petitioner was very critical in his
submission regarding the procedure adopted by the
Executing Court. A very detailed and effective argument
was put forth before this Court by counsel for petitioner
regarding non- compliance of the provisions of the Civil
Procedure Code. I am unable to accept the said
submission. The Executing Court as is apparent from the
proceedings has adhered to the compliance of the
provisions of the Code of Civil Procedure. There is a
complete compliance and there is no mis-carriage of
justice.
6. In the result, I find no ground to interfere with
the order.
Consequently, the writ petition is dismissed.
Sd/-
JUDGE
VMB/TKN
