B Ramaiah vs G G Gurappa
2023 Latest Caselaw 5125 Kant

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                                              NC: 2023:KHC:26827
                                                 WP No. 13785 of 2016




            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                  DATED THIS THE 1ST DAY OF AUGUST, 2023

                                  BEFORE

                 THE HON'BLE MR JUSTICE B M SHYAM PRASAD

                 WRIT PETITION NO. 13785 OF 2016 (GM-CPC)

            BETWEEN:

                  B RAMAIAH
                  S/O LATE BETTA
                  AGED ABOUT :70 YEARS
                  R/AT : C/O NAGARAJA SHETTY
                  NO.3/1, DEVI NILAYA, BAZAAR STREET
                  ADUGODI, BANGALORE-560 030

                                                  ...PETITIONER
            (BY SRI. SANDESH P NADIGER, ADVOCATE FOR
               SRI. G BALAKRISHNA SHASTRY.,ADVOCATE)
            AND:

            1.    G G GURAPPA
Digitally
signed by         S/O GUTHAPPA
NARASIMHA         AGED ABOUT :71 YEARS
MURTHY            R/AT NO.122-A, 7TH CROSS
VANAMALA
                  VENKATESWARA LAYOUT
Location:
HIGH              S G PALYA, DRC POST, BANGALORE-560 029.
COURT OF
KARNATAKA   2.    SMT. SAKAMMA
                  W/O B RAMAIAH
                  AGED ABOUT :63 YEARS
                  R/AT : C/O NAGARAJA SHETTY
                  NO.3/1, DEVI NILAYA, BAZAAR STREET
                  ADUGODI, BANGALORE-560 030
                                                ...RESPONDENTS
            (BY SRI. RAMESH KUMAR R V, ADVOCATE FOR R1)
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                                         NC: 2023:KHC:26827
                                           WP No. 13785 of 2016




      THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TOQUASH THE
ORDER DATED 25.1.2016 IN EXECUTION CASE
NO.2876/2013 ON THE FILE OF THE CITY CIVIL
JUDGE, BANGALORE CITY (CCH31) PRODUCED AT
ANNEXURE-B TO THE EXTENT OF DIRECTING ARREST
OF THE PETITIONER; QUASH THE ORDER DATED
27.2.2016 IN EXECUTION CASE NO.2876/2013 ON THE
FILE OF THE CITY CIVIL JUDGE, BANGALORE CITY
(CCH31) PRODUCED AT ANNEXURE-B.

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

                         ORDER

The petitioner is the judgment debtor in

execution No.2876/2013 on the file of the City Civil

Judge, Bengaluru [for short, 'the executing Court'],

and the petitioner is aggrieved by the executing

Court's order dated 25.01.2016. The executing Court

by this impugned order has allowed the first

respondent's application under Section 51 of the

Code of Civil Procedure 1908 [CPC] issuing arrest

warrant against the petitioner with police protection.

2. This impugned order is preceded by the

executing Court's earlier order dated 20.11.2014, and

the executing Court by this earlier order, while

NC: 2023:KHC:26827 WP No. 13785 of 2016

rejecting the application under Section 151 of CPC for

stay of further proceedings because of the pendency

of RFA No.1637/2013, has upheld the objections for

issuance of show cause notice for arrest against the

petitioner's wife - the second judgment debtor [the

second respondent herein] .

3. The learned counsel for the petitioner

relies upon the provisions of Section 51 and the

provisions of Order XXI Rule 37 of CPC to contend

that the executing Court could not have issued arrest

warrant without examining the circumstances

contemplated under Section 51 of CPC and without

due opportunity as contemplated under Order XXI

Rule 37 of CPC. A proposition which is not disputed

by the learned counsel for the first respondent who in

fact submits that this Court must necessarily

construe the impugned order as an order that could

follow after examining the circumstances that are

contemplated under Section 51 of CPC.

NC: 2023:KHC:26827 WP No. 13785 of 2016

4. It remains beyond dispute that where

there is a decree for payment of money [as in the

present case], execution by detention and

imprisonment shall not be ordered unless the Court

executing such decree, after the judgment debtor is

given an opportunity, is satisfied that the judgment

debtor with the object to cause delay in execution in

the decree is likely to abscond or leave the local limits

of the jurisdiction of the Court or is guilty of

committing any other act of bad faith as

contemplated under Section 51 proviso a(ii) as also

the subsequent clauses.

5. The records do not indicate that these

circumstances are considered while issuing the arrest

warrant against the petitioner. Hence, this Court

must intervene and say that the impugned order for

issuance of warrant must stand deferred until the

request for arrest warrant is examined as required in

the provisions of Section 51 of CPC. The executing

NC: 2023:KHC:26827 WP No. 13785 of 2016

Court must also be called upon to re-appreciate and

decide on continuation of the warrant for arrest

within a period of three [3] months from the next date

of hearing with due opportunity to the petitioner and

the first respondent.

It is ordered accordingly, and the petition

stands disposed of.

Sd/-

JUDGE

SA ct:sr