Karnataka High Court
Sri K Hemachandra vs Sri S H Yuvaraj on 22 February, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:7497
WP No. 3731 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 3731 OF 2024 (GM-CPC)
BETWEEN:
SRI. K. HEMACHANDRA,
S/O LATE KEMPAIAH,
AGED ABOUT 49 YEARS,
R/AT 3RD MAIN ROAD,
VALMIKI NAGARA,
"POORNA CHANDRA NILAYA",
TUMKUR TOWN, TUMKUR - 572 102.
...PETITIONER
(BY SRI. ANANTH MANDAGI, SENIOR COUNSEL FOR
SRI. RAGHU PRASAD B.S., ADVOCATE)
AND:
1. SRI. S.H. YUVARAJ,
S/O. HANUMANTHAPPA,
AGED 45 YEARS,
PROPRIETOR MARUTHI ELECTRICALS,
Digitally signed by
VANDANA S R/AT NO. 3733, 6TH CROSS,
Location: High M.C.C. 'B' BLOCK, KUVEMPU NAGARA,
Court of Karnataka
DAVANAGERE TOWN, DAVANAGERE - 577 002.
2. CHIEF ENGINEER (ELC)
BRAZ BESCOM IT PARK
5TH FLOOR, NO.1-4,
RAJAJINAGAR INDUSTRIAL AREA,
BENGALURU - 560 044.
...RESPONDENTS
(BY SRI. H.V. DEVARAJU, ADVOCATE FOR R2;
VIDE ORDER DATED 08.02.2024, NOTICE TO
R1 IS DISPENSED WITH)
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NC: 2024:KHC:7497
WP No. 3731 of 2024
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION
OF INDIA PRAYING TO QUASH IMPUGNED ORDER DATED 08/01/2024
PASSED IN COM EX 190/2022 BY THE C/C 10TH ADDL. DISTRICT JUDGE
BANGALORE RURAL BANGALORE (COMMERCIAL) AND PRODUCED AS
AT ANNEXURE-P AND REVERSE THE IMPUGNED ORDER BY ALLOWING
IA NO. II FILED BY THE PETITIONER AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition is directed against the impugned order dated
08.01.2024 passed in Com.Ex.Pet.No.190/2022 by the X Additional
District & Sessions Judge (Dedicated Commercial Court),
Bengaluru Rural District, Bengaluru, whereby the application
IA.No.II filed by the petitioner-Decree holder was dismissed and IA
No.III filed by respondent No.2- Garnishee was allowed by the Trial
Court.
2. Heard learned Senior Counsel appearing for the
petitioner and learned counsel appearing for respondent No.2 and
perused the material on record.
3. The material on record indicates that in the aforesaid
commercial execution proceedings initiated by the petitioner
against respondent no.1-judgement debtor, the petitioner-decree
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holder filed I.A.No.II seeking attachment of amount belonging to
respondent no.1-judgement debtor available in the hands of
respondent no.2 - Garnishee/BESCOM. Apart from opposing the
said application, respondent no.2-Garnishee/BESCOM also filed
application IA.No.III recalling of the order dated 18.11.2022 passed
by the Executing Court attaching amount in the account of
respondent no.2-garnishee. The said application I.A.No.III was
opposed by the petitioner-decree holder. After hearing the
petitioner-decree holder and respondent no.2-garnishee/BESCOM,
the Executing Court proceeded to pass the impugned order
dismissing I.A.No.II filed by the petitioner-decree holder and
allowing I.A.No.III filed by respondent no.2-Garnishee by recalling
order of attachment. Aggrieved by the impugned order I.A.Nos.II &
III, the petitioner is before this Court by way of present petition.
4. A perusal of the impugned order will indicate that the
Trial Court has miss-directed itself in coming to the erroneous
conclusion that since there is a dispute between respondent no.1-
judgment debtor and respondent no.2-garnishee, who contends
that it has forfeited the amount from respondent no.1, the question
of attaching the said amount would not arise. In my opinion, the
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trial court failed to appreciate that the interse dispute between
respondent no.1- judgment debtor and respondent no.2-Garnishee
has no nexus or connection whatsoever to the claim of the
petitioner - Decree holder and the said circumstance cannot be
made the basis for respondent no.2-Garnishee to either oppose
attachment or make payment in favour of respondent no.1 pending
disposal of execution proceedings. Under these circumstances, I
am of the view that the impugned order passed by the Trial Court
deserves to be set aside and I.A.No.II and I.A.No.III deserves to be
disposed of by directing respondent no.2- Garnishee/BESCOM not
to make any payment in favour of respondent no.1-judgement
debtor till disposal of execution proceedings.
5. In the result, I pass the following:-
ORDER
(i) Petition is hereby allowed.
(ii) The impugned order dated 08.01.2024 passed on
I.A.No.2 in Com.Ex.Pet.No.190/2022 by the Commercial court is
hereby set aside.
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(iii) I.A.No.2 filed by the petitioner - Decree Holder stands
allowed, while I.A.No.3 filed by the 2nd respondent - Garnishee /
BESCOM stands dismissed.
(iv) The 2nd respondent - Garnishee is directed not to make
any payment in favour of the 1st respondent - Judgment Debtor till
disposal of the Execution Proceedings.
(v) The Executing Court (Commercial Court) is directed to
dispose of the Execution proceedings as expeditiously as possible.
SD/-
JUDGE
'
NMS/SRL
