H P Somashekarappa vs C H Arunkumar Hegde
2022 Latest Caselaw 7374 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 24TH DAY OF MAY, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

        WRIT PETITION NO.7487 OF 2022 (GM-CPC)

BETWEEN:

1.     H P SOMASHEKARAPPA
       S/O LATE PUTTAPPA
       AGED ABOUT 52 YEARS
       R/O HANUMANTHAPURA VILLAGE
       HOLEHONNUR HOBLI
       ARAHATHOLALU POST
       BAHDRAVATHI TALUK-577301
       SHIVAMOGGA DISTRICT.

2.     KUM H S SRUSTI @ H S SHRUSTRI
       D/O H P SOMASHEKARAPPA
       AGED ABOUT 15 YEARS
       SINCE MINOR REPRESENTED BY HER MOTHER AND
       NATURAL GUARDIAN T MAMATHA
       W/O H P SOMASHEKARAPPA, 40 YEARS
       R/O HANUMANTHAPURA VILLAGE
       HOLEHONNUR HOBLI,
       ARATHOLALU POST
       BHADRAVATHI TALUK-577301
       SHIVAMOGGA DISTRICT.

                                        ...PETITIONER

(BY SRI.S.V.PRAKASH, ADVOCATE)
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AND

1.    C H ARUNKUMAR HEGDE
      S/O HUCHAIAH
      AGED ABOUT 42 YEARS
      R/AT IDK-73/A HUTTA COLONY
      BHADRAVATHI-577301
      SHIVAMOGGA DISTRICT.

2.    H P MALLESHAPPA
      S/O LATE PUTTAPPA
      AGED ABOUT 64 YEARS
      R/O HANUMANTHAPURA VILLAGE
      HOLEHONNUR HOBLI
      ARATHOLALU POST
      BHADRAVATHI TALUK-577301
      SHIVAMOGGA DISTRICT.

3.    H P HIRANNAIAH
      S/O LATE PUTTAPPA
      AGED ABOUT 58 YEARS
      R/O HANUMANTHAPURA VILLAGE
      HOLEHONNUR HOBLI
      ARATHOLALU POST
      BHADRAVATHI TALUK-577301
      SHIVAMOGGA DISTRICT.

4.    LALITHAMMA
      W/O LATE NEELAPPA
      AGED ABOUT 51 YEARS
      R/O ANASUVADI VILLAGE AND POST
      SHIVAMOGGA TALUK.

5.    GANGAMMA
      W/O MANJAPPA
      AGED ABOUT 49 YEARS
      R/O SANYASIKODAMAGI VILLAGE
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     ARATHOLALU POST
     BHADRAVATHI TALUK-577301.
     SHIVAMOGGA DISTRICT.

6.   CHANDRAMMA
     W/O KUBERAPPA
     AGED ABOUT 44 YEARS
     R/O KABALU VILLAGE
     CHANNAGIRI TALUK-577213
     DAVANAGERE DISTRICT.

                                     .....RESPONDENTS

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO SET ASIDE THE ORDER DATED 02.03.2022 PASSED BY
THE COURT OF LEARNED ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC,BHADARAVATHI ON IA NO.5 IN
EX.NO.6/2017 PRODUCED AS PER ANNEXURE-G AND ETC.,

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

                       ORDER

The captioned writ petition is filed by the

Judgment Debtor Nos. 2 and 3, questioning the order

of the Executing Court i.e., learned Additional Senior

Civil Judge and JMFC, Bhadravathi passed on I.A.5

dated 02.03.2022.

2. The respondents/decree holders have instituted

a suit in O.S.No.68/2013 seeking relief of specific

performance of contract and in the alternative,

respondents/decree holders sought refund of money

of Rs.15,00,000/- with interest at the rate of 18% p.a.

The said suit, on contest, came to be partly decreed

by judgment and decree dated 10.08.2016 by

granting alternative relief of refund of earnest money

of Rs.15,00,000/- with interest at the rate of 6% p.a.

The respondents/decree holders pursuant to passing

of decree, have filed Execution Petition No.6/2017.

The present petitioner/judgment debtor No.1

appeared in the Execution proceedings and took a

contention that he has no means to pay the decreetal

amount. In view of the defence stated by the

petitioner/judgment debtor, the Executing Court, on

detailed enquiry, has come to the conclusion that the

present petitioner/judgment debtor No.1 has means to

satisfy the decree amount. Having regard to the facts

of the case, the Execution Court has recorded a

finding that the present application filed by judgment

debtor Nos.2 and 3 seeking attachment of property is

only to avoid the arrest warrant and therefore, the

Executing Court was of the view that the application

filed by petitioner seeking attachment of his 1/6th

share lacks bonafide. On these set of reasons, the

Executing Court has rejected the application filed by

judgment debtor Nos.2 and 3 requesting the Court to

attach 1/6th share of present petitioner in the suit

schedule property and to conduct public auction so as

to recover the deceetal amount.

3. I have given my anxious consideration to the

order under challenge. The learned counsel for the

petitioners has stated that the agreement is of the

year 2011. It is an admitted fact that in an agreement

the present petitioner received a sum of

Rs.15,00,000/-. The present petitioner succeeded in

retaining the property as the Court having accepted

the defence of petitioners, granted lesser relief of

refund of earnest money of Rs.15,00,000/- as per the

judgment and decree passed on 01.08.2016 and the

petitioner has succeeded in protracting the payment of

decreetal amount. The material on record also reveals

that the Executing Court was compelled to issue arrest

warrant which was recalled on payment of negligible

amount of Rs.5,000/- and Rs.10,000/- on two

occasions. The conduct of petitioner lacks bonafides.

The material on record clearly demonstrates that

though the petitioner has means to repay the

decreetal amount as he is the owner of areca garden,

for the reasons best known to him has not shown any

indication in paying the decreetal amount.

4. The present application seeking attachment of

1/6th share of present petitioner herein is a eyewash.

The application lacks bonafides and therefore, the

Executing Court has rightly rejected the application.

The order under challenge does not suffer from any

illegality.

Accordingly, writ petition is devoid of merits and

stands dismissed.

Sd/-

JUDGE HDK