Shankarappa S/O Honnnappa ... vs Rajeshwari W/O. Rachappa ...
2023 Latest Caselaw 5948 Kant

                                                           -1-
                                                                  NC: 2023:KHC-D:9486
                                                                     WP No. 103829 of 2021




                                 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                        DATED THIS THE 24TH DAY OF AUGUST, 2023

                                                         BEFORE

                                 THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

                                      WRIT PETITION NO. 103829 OF 2021 (GM-CPC)

                              BETWEEN:

                              SRI SHANKARAPPA S/O. HONNAPPA HUKKERI,
                              AGE: 74 YEARS, OCC: AGRICULTURE,
                              R/O: MAHALINGAPUR,
                              TQ: MUDHOL, DIST: BAGALKOTE.
                                                                               ...PETITIONER
                              (BY SRI S.B. HEBBALLI, ADVOCATE)

                              AND:

                              SMT. RAJESHWARI W/O. RACHAPPA KULLOLLI,
                              AGE: 56 YEARS, OCC: HOUSE HOLD WORK,
                              R/O: MAHALINGAPUR,
                              TQ: MUDHOL, DIST: BAGALKOTE-587312.
                                                                             ...RESPONDENT
                              (BY SRI J.S. SHETTY, ADVOCATE)

                                     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
           Digitally signed
           by
                              OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
           MOHANKUMAR
           B SHELAR
MOHANKUMAR
B SHELAR   Location:
           DHARWAD
           Date:
                              DATED 19.02.2020 PASSED BY THE PRL. SENIOR CIVIL JUDGE AND
           2023.08.29
           16:22:50 -0700

                              JMFC MUDHOL, IN E.P. NO.109/2019 AT ANNEXURE-D; QUASH THE
                              IMPINGED ORDER PASSED ON I.A.NO.I FILED BY THE DHR. UNDER
                              ORDER 21 RULE 54 R/W SEC 151 OF C.P.C. DATED 03.03.2021 BY
                              THE PRL. SENIOR CIVIL JUDGE AND JMFC MUDHOL IN E.P.
                              NO.109/2019 VIDE ANNEXURE-D.


                                     THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
                              THIS DAY, THE COURT MADE THE FOLLOWING:
                                    -2-
                                          NC: 2023:KHC-D:9486
                                             WP No. 103829 of 2021




                               ORDER

Captioned petition is filed assailing the order of the

Executing Court for attachment of immovable properties

owned by the petitioner herein. The said order is under

challenge.

2. The present petitioner herein preferred a second

appeal before this Court in RSA No. 6011/2011 assailing the

order passed by the Executing Court on I.A.No.5 in

O.S.E.P.No.254/2005. The second appeal filed by the

petitioner is dismissed by this Court by imposing costs of

Rs.4,00,000/- vide judgment dated 25.03.2015.

3. Counsel for petitioner submits that the Executing

Court has erred in straightaway attaching the immovable

properties held by the petitioner. His grievance is that no

proper procedure is followed before issuing attachment or

immovable properties.

4. On the contrary, the learned counsel for decree-

holder referring to the order sheet would point out that the

NC: 2023:KHC-D:9486 WP No. 103829 of 2021

petitioner being aware of pending execution proceedings, has

evaded the notice.

5. Heard the counsel for petitioner and the learned

counsel appearing for the respondent. In view of dismissal of

special leave petition by the Hon'ble Apex Court, the

respondent-decree holder to enjoy the fruits of the decree as

well as the cost imposed by this Court, is entitled to proceed

against the petitioner herein. The petitioner cannot evade

the notice and then claim that executing court has not

followed the procedure before issuing attachment of

immovable properties.

6. However having regard to the fact that petitioner

has deposited Rs.1,05,000/- before the Executing Court in

compliance of interim order granted by this Court, I am of

the view that the captioned petition cannot be kept pending,

which is seriously affecting the respondent's right. If

petitioner is granted a further time of two months as a final

chance, no serious prejudice would caused to the respondent

as the matter is pending before this Court since 2021 and

NC: 2023:KHC-D:9486 WP No. 103829 of 2021

the proceedings in execution petition are stayed by this

Court. With this observations, I pass the following:

ORDER

i) The writ petition is allowed in part.

ii) The attachment warrant issued is kept in abeyance for a period of two months subject to petitioner depositing balance amount before the Executing Court on or before 26.10.2023.

iii) In the event the petitioner-judgment debtor fails to pay the balance amount, the Executing Court without notifying the petitioner shall take all possible coercive steps as provided under law.

iv) In view of disposal of the petition, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

Sd/-

JUDGE