Karnataka High Court
Altaf Ahmed vs Mohd Ghouse Nazeem Badsha on 5 December, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2023:KHC:43846
WP No. 28239 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 28239 OF 2018 (GM-CPC)
BETWEEN:
ALTAF AHMED
AGED ABOUT 58 YEARS,
S/O LATE HAJI MOHAMMED
PRESENTLY R/AT NO. 316,
10TH MAIN, 14TH CROSS,
INDIRANAGAR 2ND STAGE,
BANGALORE - 560 036.
...PETITIONER
(BY SRI. ARJUN REGO, ADVOCATE FOR
SRI. REGO L P E.,ADVOCATE)
AND:
MOHD. GHOUSE NAZEEM BADSHA
S/O LATE MOHAMMED GHOUSE
AGED ABOUT 58 YEARS,
Digitally
REPRESENTED BY HIS GPA HOLDER
signed by MRS. SAMEENA NAZEEM
NARASIMHA
MURTHY W/O MOHD. GHOUSE NAZEEM BADASHA
VANAMALA
AGED ABOUT 52 YEARS,
Location:
HIGH R/AT NO. 2062, 16TH D MAIN,
COURT OF
KARNATAKA HAL II STAGE, INDIRANAGAR,
BANGALORE - 560 038.
...RESPONDENT
(BY SRI. PRABHUGOUD THUMBAGI, ADVOCATE FOR
SRI M RAMAKRISHNA.,ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE
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NC: 2023:KHC:43846
WP No. 28239 of 2018
ORDER DATED 23.6.2018 PASSED IN EX. NO.
2506/2015 ON THE FILE OF THE LEARNED XXV ADDL.
CITY CIVIL AND SESSIOSN JUDGE BANGALORE CITY,
VIDE ANNEX-A GRANTING SIMULTANEOUSLY TO THE
PETITIONER HIS COSTS, COUNSELS' FEE.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The petitioner is the Judgment Debtor in Ex.
No.2506/2015 on the file of the XXV Additional City
Civil and Sessions Judge, Bengaluru [for short, 'the
executing Court']. The petitioner has impugned the
executing Court's order dated 23.06.2018, and the
executing Court by this order has directed its office to
issue process for arrest if steps are taken, and it is
seen from the proceedings of the executing Court that
prior to this order, an arrest warrant is issued in
similar terms recording that the earlier arrest
warrant is returned.
2. The proceedings commenced by the
respondent for ejectment and for recovery of alleged
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arrears of rent in O.S. No.4738/2010 has culminated
in a decree. According to the petitioner, in due
deference to the decree, he has handed over
possession of the subject property while tendering a
sum of Rs.12,00,000/- which is duly acknowledged.
The respondent has commenced final decree
proceedings in FDP No.14/2014 which is decreed on
05.09.2015 determining that the petitioner is liable to
pay mesne profits in a sum of Rs.30,000/- per month
for the period from 13.07.2010 to 20.12.2013, and
this final decree is put into execution in Ex.
No.2506/2015. The petitioner has not accepted the
final decree inasmuch as miscellaneous proceedings
are filed in Misc. No.45/2018.
3. The respondent contests the petitioner's
case that a sum of Rs.12,00,000/- was tendered at
the time of handing over the vacant possession, and
in fact, it is stated on behalf of the respondent that
certain instruments issued by the petitioner have
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returned unpaid and the Court bailiff has also not
been able to attach the movable properties despite
best efforts by him as the assertion which is seriously
contested on behalf of the petitioner.
4. These circumstances apart, Sri Arjun
Rego, the learned counsel for the petitioner, contests
the executing Court's order to issue arrest warrant on
the following three grounds:
[a] the respondent may have filed the
application under Order XXI Rule 37 of
the Code of Civil Procedure, 1908 [for
short, 'the CPC'] but no orders have been
passed on the same issuing notice to the
petitioner to show cause against arrest;
[b] the executing Court should have examined
whether the petitioner is justified in
contending that a sum of Rs.12,00,000/-
was paid to the respondent
simultaneously with handing over
possession of the subject property, and
[c] the Court bailiff has attached certain
movable properties and handed over the
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custody to the respondent who has
appropriated the same and therefore there
should have been necessary set off as
against the value even if any amount was
found payable by the petitioner.
5. Sri Prabhugoud Thumbagi, the learned
counsel for the respondent, cannot controvert that
the executing Court has issued warrant for arrest of
the petitioner without due process contemplated
under the provisions of Order XXI Rule 37 of CPC
notwithstanding the fact that the application is filed.
There must be interference on this sole ground, but
in the peculiarities of this case where the petitioner
contends that a sum of Rs.12,00,000/- was paid at
the time of delivery of possession and in execution of
delivery warrant certain movable properties are
attached and handed over to the custody of the
respondent, this Court is of the considered view that
these are seriously contested matters which must be
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examined before issuing notice to show cause against
arrest. In the light of the afore, the following:
ORDER
[a] The petition is allowed-in-part, and the
order dated 23.06.2018 in Ex.
No.2506/2018 on the file of the XXV
Additional City Civil and Sessions Judge,
Bengaluru is quashed restoring the
proceedings for reconsideration in the
light of this Court's observation.
[b] The executing Court, given the nature of
the dispute, shall hold an enquiry in the
light of this Court's observation and
conclude the same within a period of two
[2] months from the date of receipt of a
certified copy of this order.
Sd/-
JUDGE
AN/-
