Karnataka High Court
Shankrappa Son Of Basavaneppa ... vs Authorised Signatory/ on 2 August, 2023
Bench: Sachin Shankar Byssmj
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NC: 2023:KHC-D:8125
WP No. 100727 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 100727 OF 2021 (GM-CPC)
BETWEEN:
SHANKRAPPA,
SON OF BASAVANEPPA TOTAGER,
AGED ABOUT 28 YEARS,
OCC: AGRICULTURE,
RESIDENTS OF BAMMANAKATTI VILLAGE,
HAVERI-TALUK AND DISTRICT.
...PETITIONER
(BY SRI PRAKASH R. BADIGER, ADV. FOR SRI M.R. HIREMATHAD,
ADV.)
AND:
AUTHORISED SIGNATORY/
SR. CREDIT EXECUTIVE,
SHRI RAM TRANSPORT FINANCE
CORPORATION LIMITED,
BRANCH OFFICE,
MAGAVI CHAMBERS,
YASHAVANT
NARAYANKAR P.B. ROAD, HAVERI-581110,
REPRESENTED BY SANTOSH B.NIMBALAKAR.
Digitally signed by
YASHAVANT
NARAYANKAR ...RESPONDENT
Location: High
Court of Karnataka,
Dharwad (NOTICE TO RESPONDENT IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF
CERTIORARI OR ANY OTHER ORDER OR DIRECTION IN THE NATURE
OF WRIT QUASHING THE ORDER OF ARREST WARRANT PASSED BY
THE LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE AT
HAVERI IN EX.CASE NO.74 OF 2021 DATED 24.02.2021, AT
ANNEXURE-D.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC-D:8125
WP No. 100727 of 2021
ORDER
The captioned writ petition is filed by the judgment
debtor assailing the arrest warrant issued by the executing
court.
2. Heard the learned counsel for the petitioner and
perused the grounds urged in the writ petition and also
arrest warrant issued by the executing court.
3. Prima facie the order under challenge is not
sustainable. The executing court without holding an
enquiry and in the absence of material placed on record by
the decree holder to substantiate that judgment debtor
has to pay the decreetal amount is evading the notice and
also not willing to make payment, has straightway
proceeded to issue the arrest warrant. The executing court
before exercising the discretionary power ordering
detention of any person has to show-cause the judgment
debtor. In the present case on hand, the executing court
straightaway proceeded to issue arrest warrant. Rule
37(1) of Order 21 of CPC contemplates that, executing
NC: 2023:KHC-D:8125
WP No. 100727 of 2021
court if it is of the opinion that judgment debtor is liable to
be arrested has to first examine as to whether decree
holder has placed on record any material regarding source
of income and thereafter proceed to issue the arrest
warrant. In the present case, no opportunity was provided
to the judgment debtor. Even otherwise, this court would
find that arrest warrant issued by the executing court is
not supported by any reasons and a cryptic order is
passed.
4. For the reasons stated above, the writ petition
is allowed. The arrest warrant is set aside, subject to the
petitioner depositing Rs.5,000/- payable to the decree
holder on the next date of hearing. The executing court
shall conduct an enquiry before issuing an arrest warrant.
Sd/-
JUDGE
MBS
