Karnataka High Court
Sri Kuppuswamy Naidu vs Sri Susheel Kumar Jain on 22 February, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 26818 of 2023
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. 26818 OF 2023 (GM-CPC)
BETWEEN:
SRI. KUPPUSWAMY NAIDU
SINCE DEAD BY HIS LRS.
1. SRI. RAMESH,
S/O LATE KUPPUSWAMY NAIDU,
AGED ABOUT 65 YEARS.
2. SRI. MOHAN KUMAR,
S/O LATE KUPPUSWAMY NAIDU,
AGED ABOUT 60 YEARS.
3. SRI. MURALI BABU,
S/O LATE KUPPUSWAMY NAIDU,
AGED ABOUT 55 YEARS.
Digitally signed
by SUCHITRA ALL ARE RESIDING AT
MJ NO. 121, K.K. SWAMY BUILDING,
Location: HIGH
COURT OF RAMAMURTHY NAGAR POST,
KARNATAKA BANGALORE - 560 016.
4. SMT. VEDAVATHI,
W/O VARADARAJAN,
D/O LATE KUPPUSWAMY NAIDU,
AGED ABOUT 63 YEARS,
RESIDING AT NO. 2813,
12TH MAIN ROAD,
D BLOCK, 2ND STAGE,
RAJAJINAGAR,
BANGALORE - 560 010.
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WP No. 26818 of 2023
5. SMT. USHA,
W/O SWAMINATHAN,
D/O LATE KUPPUSWAMY NAIDU,
AGED ABOUT 68 YEARS,
RESIDING AT NO. 45, GOWRINILAYA,
2ND CROSS, NGEF LAYOUT,
(NAGARABAVI 80 FEET ROAD)
OPP. TO VINAYAKA EXTENSION,
BANGALORE - 560 072.
SMT. NAVANEETHAMMAL
SINCE DEAD BY HER LRS.
6. SRI. C. RAJAGOPAL,
S/O LATE NAVANEETHAMMAL,
AGED ABOUT 89 YEARS.
7. SRI. R. SATHISH KUMR,
S/O LATE NAVANEETHAMMAL,
AGED ABOUT 49 YEARS.
8. SRI. R. SURESH KUMR,
S/O LATE NAVANEETHAMMAL,
AGED ABOUT 47 YEARS.
ALL ARE RESIDING AT
NO.780/M, NORTH AVENUE,
TNHB COLONY, KORATTUR,
CHENNAI - 600 080.
...PETITIONERS
(BY SRI. RAMALINGAM P.H., ADVOCATE)
AND:
SRI. SUSHEEL KUMAR JAIN,
SON OF DHARMACHAND JAIN,
AGED ABOUT 68 YEARS,
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WP No. 26818 of 2023
SHOP NO. 3, KK SWAMY BUILDING,
RAMAMURTHY NAGAR,
DOORAVANINAGAR POST,
BANGALORE - 560 016.
...RESPONDENT
(BY SRI. M. SHIVAPRAKASH, ADVOCATE FOR C/R)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE COMMON
ORDER ON I.A. NO. 5, 6 AND 7 DATED 12/10/2023 PASSED IN
EXECUTION PETITIONER NO. 1646/2011 ON THE FILE OF THE
HONBLE COURT OF THE 17TH ADDL. CITY CIVIL AND SESSIONS
JUDGE, BANGALORE, CCH-16, AS PER ANNEXURE-A
CONSEQUENTLY ALLOW THE SAME AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition is directed against the common order passed on
IA Nos. V to VII whereby the said applications filed by petitioners-
judgment debtors were rejected by the Trial Court.
2. Heard learned counsel appearing for the petitioner and
learned counsel appearing for respondent and perused the material
on record.
3. A perusal of the material on record indicates that the
respondent-decree holder instituted aforesaid execution
proceedings to execute and implement the judgment and decree
passed by this Court in RFA No.260/2007 dated 22.02.2011.
During the pendency of the said proceedings, the petitioner filed
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I.A.No.V to VII on 03.09.2013 and the same were initially allowed
and thereafter set aside at the instance of respondent-decree
holder by this Court vide order dated 26.05.2023 passed in
W.P.No.52750/2014. Subsequent to order dated 26.05.2023
passed by this court in W.P.No.52750/2014, the respondent-
decree holder filed a memo of calculation dated 19.06.2023
indicating that balance payable by him was Rs.1,65,284/-. In
response to the same, the petitioner also filed a memo of
calculation dated 27.09.2023 indicating that balance amount
payable by the respondent was Rs.1,64,284/-. Meanwhile, the
respondent filed one more memo dated 26.06.2023 with a fresh
memo of calculation and withdrew the earlier memo of calculation
dated 19.06.2023. After hearing the parties, the Trial Court
proceeded to pass the impugned order rejecting I.A.No.V to VII,
aggrieved by which, the petitioner is before this Court by way of
present petition.
4. A perusal of memo of calculation filed by the petitioner
as well as memo of calculation and revised memo of calculation
filed by respondent would indicate that there is a dispute as
regards amount paid by respondent-decree holder and the date on
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which it was paid and details in this regard. The said dispute
between the parties would necessary required to be adjudicated
after conducting an enquiry in terms of Section 47 of CPC by
providing opportunity to both sides to adduce evidence. Under
these circumstances, without expressing any opinion on
merits/demerits on rival contentions, I deem it just and appropriate
to set-aside the impugned order and remit the matter back to
Executing Court for reconsideration afresh after conducting
necessary enquiry in accordance with law by permitting both sides
to adduce their oral and documentary evidence in support of their
respective claims on I.A.No.V to VII and to pass appropriate order
in accordance with law within a stipulated time frame.
5. In the result, I proceed to pass the following:-
ORDER
I. The petition is here by allowed.
II. The impugned order is hereby set -side.
III. The matter is remitted back to Trial Court for
reconsideration afresh in accordance with law, after
providing an opportunity to both sides to adduce their
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oral and documentary evidence in support of their
respective claims and by conducting necessary
enquiry in this regard.
IV. Since the litigation between the parties is pending for
31 years, the Trial Court is directed to dispose of
I.A.No.V to VII afresh after conducting/holding
necessary enquiry within a period of 3 months from the
date of receipt of copy of this order.
V. The Trial Court is directed to prepone/advance the
matter from 04.04.2024 to 04.03.2024.
Sd/-
JUDGE
NMS
CT:SNN
