Mudakappa Gudadappa Kolakar vs Sri. Basanagouda Kallappa Patil
2023 Latest Caselaw 5344 Kant

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                                                            NC: 2023:KHC-D:8406
                                                           WP No.114661 of 2015




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                               DATED THIS THE 7TH DAY OF AUGUST, 2023
                                               BEFORE
                          THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

                              WRIT PETITION NO. 114661 OF 2015 (GM-CPC)
                   BETWEEN:

                   1.   MUDAKAPPA GUDADAPPA KOLAKAR,
                        AGE: 65 YEARS, OCC: AGRICULTURE,
                        R/O: DASTIKOPPA, TQ: BAILHONGAL,
                        DIST: BELAGAVI.
                   2.   SRI. RAMESH MUDAKAPPA KOLAKAR,
                        AGE: 37 YEARS, OCC: AGRICULTURE,
                        R/O: DASTIKOPPA, TQ: BAILHONGAL,
                        DIST: BELAGAVI.
                   3.   SRI. SUMANTA MUDAPPA KOLAKAR,
                        AGE: 34 YEARS, OCC: AGRICULTURE,
                        R/O: DASTIKOPPA, TQ: BAILHONGAL,
                        DIST: BELAGAVI.
                                                                   ...PETITIONERS
                   (BY SRI. G.I.GACHCHINAMATH, ADVOCATE)


                   AND:

Digitally signed
                   SRI. BASANAGOUDA KALLAPPA PATIL,
by JAGADISH T R    AGE: 58 YEARS, OCC: SERVICE AND
Location: HIGH
COURT OF            AGRICULTURE, R/O: DASTIKOPPA,
KARNATAKA
Date: 2023.08.10   TQ: BAILHONGAL, DIST: BELAGAVI.
12:38:45 +0530
                                                                   ...RESPONDENT
                   (BY SRI. RAVI N.CHIKKARADDER AND SRI.S.B.SHAIKH,
                       ADVOCATES)


                        THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
                   OF THE CONSTITUTION OF INDIA PRAYING TO, A. CALL FOR
                   RECORDS IN RESPECT OF EP.NO.3/2015 ON THE FILE OF THE CIVIL
                   JUDGE AND JMFC, KITTUR; QUASH THE IMPUGNED ORDER
                   DATED:11.12.2015, MADE IN EP.NO.3/2015 ORDER ON IA.NO.4,
                   PASSED BY THE CIVIL JUDGE AND JMFC, KITTUR PRODUCED AS
                   ANNEXURE-J; QUASH THE IMPUGNED ORDER DATED 19.12-2015 SO
                   FAR IT PERTAINS TO ISSUANCE OF ATTACHMENT OF MOVABLE
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                                                  NC: 2023:KHC-D:8406
                                                 WP No.114661 of 2015




WARRANT AGAINST THE JUDGEMENT DEBTORS PRODUCED AS
ANNEXURE-K PASSED BY THE CIVIL JUDGE AND JMFC, KITTUR BY
ISSUANCE OF WRIT OF CERTIORARI OR ANY OTHER SUITABLE WRIT
OR ORDER OR DIRECTIONS.

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


                           ORDER

This petition by the judgment debtors in Execution

Petition No.3/2015 is directed against the impugned order

dated 11.12.2015 passed by the Civil Judge & JMFC,

Kittur, whereby the application - I.A. No.4 filed by the

respondent-decree holder under Order XXI Rule 11(a) of

the Code of Civil Procedure, 1908, seeking arrest of the

judgment debtors, was allowed by the Executing Court as

well as the order dated 19.12.2015 whereby the Executing

Court has directed issuance of attachment warrant.

2. The material on record discloses that in the

aforesaid execution proceedings instituted by the

respondent-decree holder against the petitioners-

judgment debtors, apart from other contentions, the

petitioners-judgment debtors took up a specific contention

NC: 2023:KHC-D:8406 WP No.114661 of 2015

that the execution petition itself was not maintainable and

consequently, was liable to be dismissed.

3. It is the grievance of the petitioners-judgment

debtors that despite filing a detailed objections to the

execution proceedings and taking up the specific

contention that the execution petition was not

maintainable, the Executing Court proceeded to pass the

impugned order allowing the application without

considering or appreciating that no valid or sufficient

ground had been made out to allow the said application

and as such, the impugned orders deserve to be set aside.

4. Per contra, the learned counsel for the

respondent-decree holder would support the impugned

order and submit that there is no merit in the petition and

the same is liable to be dismissed.

5. A perusal of the impugned order will indicate

that the Executing Court has failed to consider and

appreciate not only the events that transpired during the

NC: 2023:KHC-D:8406 WP No.114661 of 2015

pendency of the execution proceedings that commenced in

the year 2007 by the legal representatives of the original

decree holder including the order dated 15.04.2011, but

the Executing Court has also failed to consider the specific

contention urged by the petitioners-judgment debtors that

the execution proceedings themselves were not

maintainable. Under these circumstances, without

expressing any opinion on the merits/demerits of the rival

contentions, I deem it just and appropriate to set aside the

impugned orders, remit the matter back to the Executing

Court and direct the Executing Court to reconsider the

rival claims and proceed further in accordance with law.

6. In the result, I pass the following:

ORDER

i) The writ petition is hereby allowed.

ii) The impugned orders dated 11.12.2015 (Annexure-J) and 19.12.2015 (Annexure-K) passed in E.P. No.3/2015 are hereby set aside.

NC: 2023:KHC-D:8406 WP No.114661 of 2015

iii) The matter is remitted back to the Executing Court for reconsideration afresh in accordance with law after providing reasonable and sufficient opportunity to both the parties.

iv) All rival contentions are kept open and no opinion is expressed on the same.

Sd/-

JUDGE KMS