Karnataka High Court
The Primary Agricultural Credit vs Sri K N Puttaswamy Gowda on 4 January, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2024:KHC:508
WP No. 25021 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 25021 OF 2023 (GM-CPC)
BETWEEN:
1. THE PRIMARY AGRICULTURAL CREDIT
CO-OPERATIVE SOCEITY LTD
REGISTERED UNDER KARNATAKA
CO-OPERATIVE SOCIETIES ACT, 1959
AVATHI VILLAGE, CHIKKAMAGALURU TALUK,
CHIKKAMAGALURU DISTRICT - 577101.
REPRESENTED BY ITS MANAGER /
CHIEF EXECUTIVE OFFICER.
MR. M.S. SHARATH KUMAR.
2. THE PRIMARY AGRICULTURAL CREDIT
CO-OPERATIVE SOCEITY LTD
REGISTERED UNDER KARNATAKA
CO-OPERATIVE SOCIETIES ACT, 1959
AVATHI VILLAGE, CHIKKAMAGALURU TALUK,
CHIKKAMAGALURU DISTRICT - 577101.
Digitally REPRESENTED BY ITS PRESIDENT
signed by MR. NAGARAJ.
VANDANA S ...PETITIONERS
Location: (BY SRI. N. BYRE GOWDA FOR
HIGH SRI. B.E. SHREEDHARA, ADVOCATES)
COURT OF
KARNATAKA
AND:
SRI K N PUTTASWAMY GOWDA
S/O LATE NANJEGOWDA,
AGED ABOUT 61 YEARS,
R/AT AANUR VILLAGE AND POST,
CHIKKAMAGALUR TALUK,
CHIKKAMAGALUR DISTRICT - 577101.
...RESPONDENT
(BY SRI.D.N. ARUN KUMAR, ADVOCATE)
-2-
NC: 2024:KHC:508
WP No. 25021 of 2023
THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION
OF INDIA PRAYING TO QUASH ORDER DTD 25.09.2023 PASSED BY THE
1ST ADDL. SENIOR CIVIL JUDGE AND JMFC AT CHIKKAMAGALURU IN
EX.CASE NO.113/2020 AT ANNEXURE-J.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is directed against the impugned order dated
25.09.2023 passed in Ex.C.No.113/2020 by the I Addl. Senior Civil
Judge & JMFC, Chikkamagaluru, whereby the Commissioner
Report dated 15.03.2023 and Statement of calculation of arrears of
salary filed by the Court Commissioner / JRCS was accepted by
the Trial Court.
2. Heard learned counsel for the petitioners and learned
counsel for the respondent and perused the material on record.
3. The material on record discloses that the respondent
has instituted the aforesaid execution proceedings against the
petitioners, which are pending adjudication before the Executing
Court. On an earlier occasion this Court disposed of
W.P.No.10157/2023 dated 26.06.2023 preferred by the very same
writ petitioner by holding as under:
"This petition is directed against the impugned order
dated 21.04.2023 passed in Ex.No.113/2020 by the Addl.
NC: 2024:KHC:508
Senior Civil Judge & JMFC, Chikkamagaluru, whereby the
request of the petitioner - judgment debtor to file objection to
the Commissioner's report was rejected by the trial Court,
which proceeded to direct attachment of movables against
the petitioner.
2. Heard learned counsel for the petitioner and
learned counsel for the respondent and perused the material
on record.
3. When the matter was posted before this Court
on 08.06.2023, this Court stayed further proceedings subject
to the petitioner depositing Rs.10,00,000/- before the
Executing Court and the same has been deposited by the
petitioner as on today. Learned counsel for the respondent
- decree holder submits that he may be permitted to
withdraw the said amount in deposit.
4. The said submission is placed on record.
5. Respondent is permitted to withdraw the
aforesaid sum of Rs.10,00,000/- deposited by the petitioner
- judgment debtor and the said withdrawal will be subject to
the final out come of the Execution Proceedings. Since the
Execution proceedings are posted before the Executing
Court on 25.07.2023, I deem it just and appropriate to set
aside the impugned order and permit the petitioner to file
objections, if any to the Commissioner's Report on
25.07.2023. Pursuant to the petitioner filing objections to the
Commissioner's Report on 25.07.2023, the trial Court shall
proceed further and dispose of the Execution Proceedings
within a period of two months from 25.07.2023.
NC: 2024:KHC:508
6. Subject to the aforesaid directions, petition
stands disposed of.
7. All rival contentions on all aspects of the matter
are kept open and no opinion is expressed on the same.
8. As stated supra, the respondent - decree
holder is permitted to withdraw the aforesaid sum of
Rs.10,00,000/- deposited by the petitioner - judgment
debtor. However, the said withdrawal would be without
prejudice to the rights and contentions of the parties, subject
to the final out come of the Execution Proceedings."
4. Subsequently, the Executing Court conducted
necessary enquiry and obtained the Report of the Court
Commissioner / JRCS and proceeded to pass the impugned order
holding as under:
"This contingency has been emerged around the
claim of Decree Holder for a sum of Rs.40,68,335/-
which explored in the present execution petition by
virtue of the order passed by the ARCS,
Chikkamagaluru in AR-26/C-5/other/10/2010-11, dated
29/9/2011, which confirmed by the Hon'ble Karnataka
Appellate Tribunal, Bengaluru in Appeal No.675/2011
(Co-operative), dated 30/3/2013 and which attained
finality in WP No.17292/2013, dated 12/12/2017 and
memo of calculation submitted by the Judgment Debtors
NC: 2024:KHC:508
dated 18/06/2022 stating that, their society is liable to
pay total amount of Rs.13,01,105/- and memo of
calculation filed by the Judgment Debtors dated
16/9/2023 contending that their society is liable to pay
an amount of Rs.21,23,177/- and acceptability of the
court commission report, which work out by the Joint
Registrar, co- operative society, Mysore division,
Mysore stating that the Decree Holder is entitle to total
arrears of salary for a sum of Rs.24,87,185/- against the
claim of decree holder and memo of calculation
submitted by the Judgment Debtors.
2. The backdrop of present execution petition
is that, in view of termination of Decree Holder herein
from his service of CEO, in the Society of Judgment
Debtors, he has questioned legitimate of his termination
through the dispute in AR-26/C-5/other/10/2010-11
before the Assistant Registrar of Co-operative Society,
Chikkamagaluru and after entertaining the said petition,
the said authority has allowed the dispute and declared
that, the termination of Decree Holder from his service
as illegal and issued the direction to reconstitute him to
his original post and also issued direction to pay salary
as retrospectively operated. The said order challenged
before the Hon'ble Karnataka Appellate Tribunal,
Bengaluru through the Appeal No.675/2011 and the
said appeal came to dismissed and the order passed by
the ARCS, Chikkamagaluru confirmed or upheld. In
further, the Judgment Debtor herein had challenged the
order passed by the ARCS, Chikkamagaluru and order
NC: 2024:KHC:508
passed in the appeal referred above before the Hon'ble
High court of Karnataka by filing W.P.No.17292/2013.
The said writ petition was came to dismissed and
upheld the order passed in the above referred action.
Based on the above referred judgments, the Decree
Holder has filed the present execution petition and
claimed an amount for a sum of Rs.40,68,335/- stating
that he is entitled to such fixation.
3. After put their appearance, the Judgment Debtors
filed the memo of calculation and contended therein
that, the Decree Holder is entitled to basic for the
duration of 25/11/2010 till 30/11/2010 for a sum of
Rs.1,300/- with DA for a sum of Rs.1040/- and HRA
for a sum of Rs.65/- and in total for a sum of Rs.2405/-
and from 01/12/10 till 31/5/19 at the rate of basic pay
for a sum of Rs.7800/-, with DA and HRA and total
payable given with figure as for a sum of Rs.13,01105/-.
4. Since the parties are at under dilemma and
contingency towards the pay fixation, this court has
appointed the Joint Registrar, Co- operative Societies,
Mysore Division, Mysore as the court commissioner to
workout the pay fixation and total amount payable to the
Decree Holder, on account of previous proceedings.
Further this court has issue direction to the said
authority to collect necessary documents and details
and based on the said effort conduct the report. By
exhausting entrusted task, the court commissioner has
submitted the report with collected materials.
NC: 2024:KHC:508
5. The Judgment Debtors have filed their statement of
objection to the Court Commissioner report and therein,
it is contended that, the Commissioner was not having
power or conferred with any authority to decide the
present dispute cropped between them and Decree
holder. The Commissioner is not competent to
determine thepay fixation. On the other hand, the ARCS
was competent authority to decide the contingency on
hand. The Decree holder has urged his claim for a sum
of Rs.40/- lakhs through the execution petition in
arbitrary manner. The commissioner did not consider
the documents submitted by them before him. As per
Order of the JRCS, Mysore, the Salary of the Manager
of VASSN is for a sum of Rs.7,800/- only. The order of
JRCS, Mysore dated 20.02.2008 was produced before
the Commissioner. But the commissioner has not at all
considered the said order, while assessing arrears of
salary amount. The Commission ought to have
computed the amount enforceable based on the order
relied them. But the Commissioner has crept error in
calculating the executable amount. The Commissioner
has adopted the wrong yardstick to computed the
amount. After termination of the Decree Holder, he has
been working in the Kalabaria VSSN, Chikkamagaluru
and the Commissioner has not taken into account the
said fact. In the result, the calculation made by the
commissioner is erroneous. The commissioner, who
work out the calculation, has not considered the
documents submitted by them. The Decree holder is
claiming salary on the basis information obtained under
NC: 2024:KHC:508
the provision of Right to Information Act. The said scale
of salary is applicable to the then Chief Executive
Officer by name Sri K.B.Nagaraj, who is a graduate and
qualified officer. Therefore, the said quantum of salary is
not applicable to the Decreeholder as the Decree holder
was only SSLC passed candidate. The commissioner
report is erroneous and liable to be rejected and if the
commissioner had properly made calculation, the
amount would not be more than Rs.13,00,000/-.
Accordingly, it is prayed to reject the Court
Commissioner report.
6. The Decree Holder has not chosen to file any
objection to the report submitted by the Court
Commissioner and he has extended his consent to
accept the report.
7. Since the Judgment Debtors have filed the objections
by opposing the Court Commissioner report, this court
has secured the Court Commissioner and received his
evidence on report. The Court Commissioner tendered
his evidence at CW-1 and got marked his report at
Ex.C-1 and 2.
8. After tendering evidence from the part of Court
Commissioner, the judgment debtors set out fresh
calculation and contended that, their authority is only
liable to pay an amount of Rs.21,23,177/- to the Decree
holder. Therein, it is contended that, the Court
Commissioner has wrongly applied DA and HRA from
the period of August-2016 onwards. Accordingly, the
NC: 2024:KHC:508
Judgment Debtors have prayed to reject the court
commissioner report by confining the enforceable
amount as mentioned in fresh calculation submitted by
them.
9. It is relevant to mention herein that, after submitting
the Court Commissioner report, this court has provided
sufficient opportunity to the judgment debtors to file
objection, but when they were not file objection on the
provided opportunity, this court has taken objection to
the Court Commissioner report as not filed and
proceeded further. By that context, the judgment
debtors have preferred W.P.No.10157/2023 before the
Hon'ble High Court of Karnataka against the said order
and as per the direction of the Hon'ble High Court of
Karnataka, the judgment debtors have deposited an
amount of Rs.10,00,000/- as part payment and even the
Decree holder has got disbursed the said amount as per
order of the Hon'ble High Court of Karnataka.
Subsequently the Writ petition filed in
W.P.No.10157/2023 disposed on 26.06.2023 with a
directionto consider the execution petition in accordance
with law.
10. Heard arguments from both side counsels in
regard to acceptability of the Court Commissioner report
submitted and perused the materials on record.
11. The points that arise for my consideration are as
below:-
POINTS
1. Whether the Court Commissioner report
- 10 -
NC: 2024:KHC:508
submitted by the Joint Registrar, Co-operative
Society, Mysore Division, Mysore is legitimate
one to accept and the determined pay fixation
pertinent to the Decree holder is liable to be
ordered to the recovery and enforce?
2. What order or decree?
12. My findings to the above said points as below:-
Point No.1 :In the Affirmative
Point No.2 : As per final order for the
following:
: REASONS :
13. POINTS NO.1: The Decree holder has filed
the present execution petition by claiming recovery of an
amount of Rs.40,68,335/-. He has filed the execution
petition based on the judgment and award passed in
dispute vide A.R.No.26/C-5- Others/10/2010-2011,
which passed by the ARCS, Chikkamagaluru and which
confirmed in Appeal Preferred before the Hon'ble
Appellate Tribunal, Bengaluru in Appeal No.675/2011,
dated 30.03.2013 and which upheld in
W.P.No.17292/2013, on the file of Hon'ble High Court of
Karnataka, through the order dated 12.12.2017. In
connection with the referred dispute, he has challenged
his termination from his service in the judgment debtors
society. The authority, which dealt the above referred
dispute, has issued the direction to re-institute the
service of Decree Holder and also to make payment of
salary as cumulatively operatable for retrospective
period from the date of termination of his service.
Though the determined authority and appellant courts
- 11 -
NC: 2024:KHC:508
have ordered so, as referred above, but the particular
pay scale has not been fixed in the judgment referred.
Even the Decree Holder has not highlighted any
authority to calculation for a sum of Rs.40,16,335/-. After
put their appearance, the judgment debtors have filed
the memo of calculation and therein, it is contended
towards the liability of their payments slab as below:
MlÄÖ vÀÄnÖ ¨sÀvÉå
ªÀÄÆ® ªÀÄ£É
PÀæ. CªÀ¢ü ªÀÄÆ® MlÄÖ
ªÉÃvÀ£À 80% ¨ÁrUÉ
¸ÀA. ªÉÃvÀ£À
¢£ÁAPÀ: 25.11.2010 jAzÀ
1 30.11.2010 gÀ ªÀgÉUÉ 1300 1300 1040 65 2405
(5 ¢£À)
¢£ÁAPÀ: 01.12.2010 jAzÀ
2 31.03.2011 gÀ ªÀgÉUÉ 7800 7800*4 31200 24960 1560 57720
(4 wAUÀ¼ÀÄ)
¢£ÁAPÀ: 01.04.2011 jAzÀ
3 31.03.2012 gÀ ªÀgÉUÉ 7800 7800*12 93600 74880 4680 173160
(12 wAUÀ¼ÀÄ)
¢£ÁAPÀ: 01.04.2012
4 jAzÀ 31.03.2013 gÀ ªÀgÉUÉ 7800 7800*12 93600 74880 4680 173160
(12 wAUÀ¼ÀÄ)
¢£ÁAPÀ: 01.04.2013
5 jAzÀ 31.03.2014 gÀ ªÀgÉUÉ 7800 7800*12 93600 74880 4680 173160
(12 wAUÀ¼ÀÄ)
¢£ÁAPÀ: 25.11.2014 jAzÀ
6 30.11.2015 gÀ ªÀgÉUÉ 7800 7800*12 93600 74880 4680 173160
(12 wAUÀ¼ÀÄ)
¢£ÁAPÀ: 25.11.2015 jAzÀ
7 30.11.2016 gÀ ªÀgÉUÉ 7800 7800*12 93600 74880 4680 173160
(12 wAUÀ¼ÀÄ)
¢£ÁAPÀ: 25.11.2016 jAzÀ
8 30.11.2017 gÀ ªÀgÉUÉ 7800 7800*12 93600 74880 4680 173160
(12 wAUÀ¼ÀÄ)
¢£ÁAPÀ: 25.11.2017 jAzÀ
9 30.11.2018 gÀ ªÀgÉUÉ 7800 7800*12 93600 74880 4680 173160
(12 wAUÀ¼ÀÄ)
- 12 -
NC: 2024:KHC:508
¢£ÁAPÀ: 25.11.2018 jAzÀ
10 30.11.2019 gÀ ªÀgÉUÉ 7800 7800*2 93600 74880 4680 173160
(12 wAUÀ¼ÀÄ)
MlÄÖ 703300 562640 35165 3101105
14. Thereby, the parties are at serious controversy towards
the claim made. As such, this court has appointed the Joint
Registrar, Co- operative Societies, Mysore Division, Mysore
to calculate the amount payable to the Decree Holder by
receiving necessary material from both side. As such, the
said authority has submitted the detailed report by securing
necessary documents from both side and by conducting the
survey on the payment scale and come to conclusion that,
the Decree Holder is entitled to claim due salary for a sum of
Rs.24,81,185/- from the Judgment Debtor for the block
period and accordingly, the judgment debtor is liable to pay
that much of amount to Decree holder. Whereas, the Decree
Holder has accepted the legitimacy in account made by
the Court Commissioner and whereas, the Judgment
Debtor have filed objection by opposing the report. However,
the Court Commissioner has tendered his evidence by
substantiating his report, which identified at CW-1 and Ex.C-1.
15. First and foremost aspect to be considered herein, by
following the objection on the part of Judgment Debtors
that, it is contended by the Judgment Debtors that, the Joint
Registrar, Co-operative Society, Mysore Division, Mysore is
not competent authority to determine the pay scale and
whatever report turned out by him is not acceptable in the
eye of law. By responding the objection raised by the
Judgment Debtors in this regard, it is necessary examine the
- 13 -
NC: 2024:KHC:508
tenability therein. This court has appointed the Joint
Registrar, Co- operative Societies, Mysore Division, Mysore
by designating the authority to him as the Court
Commissioner to assist the court to dissolve the issue
cropped between the parties. The said authority has not
sumotto conducted the report available on record for
consideration. Since this court has passed suitable order by
appointed the said authority in the instance of both side
parties and delegated power to the said authority with the
obligated to power to conduct enquiry and prepare
calculation the said authority has submitted report following
direction of this court. After passing order by this court by
appointing the said authority, the Judgment Debtors have
not at all questioned the said order in any manner. In further,
the Judgment Debtors have not at all disputed the fact that,
they have extended their co-operation with the authority
which exhausted the entrusted court commissioner task.
Then, it shows that, the judgment debtors have acted on the
order of this court and by estopping the said conduct, the
Judgment Debtors have objected the report herein in
untenable manner. Most important aspect to mention herein
based on the materials on record that, the Judgment Debtors
have set out their initial memo of calculation by stating
that, the Joint Registrar, Mysore Division, Mysore has
passed order by making stagnation of pay slab. Against the
said view, the Judgment Debtors have shown their hostile in
abrupt manner. Therefore, the stand taken by the judgment
debtor so as to the CW-1 is not competent to turn out the
calculation and his concentrated reported is not tenable is
not basically tenable in the eye of law. The said vision of
- 14 -
NC: 2024:KHC:508
Judgment Debtors is not supported from any materials. It is
undisputed fact that, the Joint Registrar is superior authority
to the ARCS and societies comes under the Jurisdiction of
the said authority. Then, the said authority was competent to
work out the report. That apart, this court has appointed the
said authority to assisted this court to dissolve the issue
cropped before this court as court commissioner and the
said authority has discharged his report in the instance of
this court by following adequate procedure. In the way, this
court has not find with any exigency and deficiency in the
task of CW-1. Moreover particularly, by acting under Order
XXVI Rule 10 CPC, this court has appointed the said
authority to resolve the contingency ripped between the
parties. As such, the competency based on the power
conferred under the statute to decide the competency of
CW-1 as raised by the judgment debtor must not under
consideration. The CW-1 was appointed by this court as
Court Commissioner and secured report and as such, the
competency of CW-1 is tenable and objection raised by the
Judgment Debtors is not tenable in the eye of law in any
angle.
16. In order to examine the legitimacy of report submitted
by the Court Commissioner, it is necessary to take into
account that, at inception of present proceeding prior to
secure the report under consideration, by that time, the
judgment debtors herein have contended that the Decree
holder is entitled to claim for a sum of Rs.13,01,105/- only. In
this regard, the Judgment Debtors have submitted their
memo of calculation against the claim urged by the Decree
- 15 -
NC: 2024:KHC:508
Holder through the execution petition. At that time, the
judgment debtors have not accepted their liability in fair
manner and they have suppressed the factuality towards the
actual slab of pay and their real liability. After securing the
report from the Court Commissioner, the judgment debtors
have switched off their previous version and contrary to the
said version, the very same judgment debtors have switched
over another memo of calculation after securence of Court
Commissioner report and on subsequent stand, the
judgment debtors have contended that they are liable to pay
an amount of Rs.21,23,177/- to the Decree holder. At the
same time, the judgment debtors have not accepted the
report submitted by the Court Commissioner in entirety and
in complete manner. The contention of the judgment debtors
even urged through their subsequent compendium is against
the total calculation made or arrived by the Court
Commissioner. The judgment Debtors have defers from the
report submitted by the court commissioner through their
objection and contended that, the Decree holder is not
entitled to one more D.A. and HRA from operating from
August 2016 onwards and there is no any bias in this regard.
17. The Court Commissioner has submitted his report
and in order to substantiate the said report, he has tendered
his evidence. Therein, he has contended that, while
exhausting the Court Commissioner task, he has secured the
documents from both side parties and conducted enquiry on
various dates and finally he has prepared the report. The
Court Commissioner has contended in his evidence at
relevant portion that:
- 16 -
NC: 2024:KHC:508
" ¸ÉêÁ ¥ÀĸÀÛPÀ ªÀÄvÀÄÛ rQæzÁgÀPÀ£À DzsÁgï PÁqïð DzsÁgÀzÀ ªÉÄÃ9É DvÀ£À
¢£ÁAPÀ: 31.05.2019 JAzÀÄ ¤UÀ¢¥Àr¹PÉÆAqÉ. rQæzÁgÀPÀ£À£ÀÄß ¸ÉêɬÄAzÀ
«ªÀÄÄQÛUÉƽ¹zÀ ¢£ÁAPÀ¢AzÀ ¤ªÀÈwÛ ¢£ÁAPÀzÀªÀgÉUÉ MlÄÖ 103 wAUÀ¼ÀÄ UÀt£ÉUÉ
§A¢gÀÄvÀÛzÉ. rQÛzÁgÀPÀ£À£ÀÄß ¸ÉêɬÄAzÀ ©qÀÄUÀqÉ ªÀiÁrzÀ PÁ®PÉÌ CªÀgÀ ªÉÃvÀ£À ±ÉæÃtÂ
gÀÆ. 8260/- EzÀÄÝ vÀÄnÖ ¨sÀvÉå ±ÉÃ.80 gÀµÀÄÖ, CzÀgÀ ªÉÆvÀÛ gÀÆ. 7,020/- MlÄÖ
ªÉÃvÀ£À gÀÆ. 15,281/- §gÀÄvÀÛzÉ. ¥Àæw ªÀµÀð vÀ9Á 1 gÀAvÉ E¤ÌçªÉÄAmï
C£ÀéAiÀĪÁVgÀÄvÀÛzÉ. ¢: 20.02.2008 gÀAzÀÄ ªÉÃvÀ£À ±ÉæÃt ¥ÀjõÀÌøvÀ DVgÀÄvÀÛzÉ. CzÀgÀ
C£ÀéAiÀÄ 2008 gÀ°è gÀÆ. 5,575-125-5700-150-7200-200-8800-260-
10620 DVzÀÄÝ CzÀPÉÌ vÀÄnÖ¨sÀvÉå ±ÉÃ. 80 ºÁUÀÆ ±ÉÃ. 5 gÀµÀÄÖ ªÀÄ£É ¨ÁrUÉ JAzÀÄ
¤UÀ¢AiÀiÁVvÀÄÛ. rQæzÁgÀPÀ £ÀªÉA§gï wAUÀ½£À°è PÉ®¸ÀPÉÌ £ÉêÀÄPÀUÉÆArzÀÄÝ £ÀªÉA§gï
wAUÀ¼À£Éßà CªÀgÀ E¤ÌçªÉÄAmï UÉ ¥ÀjUÀt¸À9ÁVzÉ. ¢: 16.08.2014 gÀAzÀÄ ¸ÀAWÀzÀ
DqÀ½vÀ ªÀÄAqÀ½ ¹§âA¢ ªÀUÀðzÀªÀjUÉ ¢: 01.08.2014 jAzÀ C£ÀéAiÀĪÁUÀĪÀAvÉ
ªÀÄÆ® ªÉÃvÀ£ÀPÉÌ ±ÉÃ. 2 gÀµÀÄÖ vÀÄnÖ ¨sÀvÉå, ±ÉÃ.2 gÀµÀÄÖ ªÀÄ£É ¨ÁrUÉAiÀÄ£ÀÄß ªÀiÁ£Àå
ªÀiÁrgÀÄvÀÛzÉ. ¢: 30.01.2016 gÀAzÀÄ ¸ÀAWÀzÀ DqÀ½vÀ ªÀÄAqÀ½ ¢: 01.07.2015 jAzÀ
C£ÀéAiÀĪÁUÀĪÀAvÉ ªÀÄÆ® ªÉÃvÀ£ÀPÉÌ ±ÉÃ. 32.5 gÀµÀÄÖ vÀÄnÖ ¨sÀvÉå, ±ÉÃ.10 gÀµÀÄÖ ªÀÄ£É
¨ÁrUÉAiÀÄ£ÀÄß ªÀiÁ£Àå ªÀiÁrgÀÄvÀÛzÉ. F J9Áè ¸ÀAUÀwUÀ¼À£ÀÄß ¥ÀjUÀt¹ rQæzÁgÀPÀgÀ
ªÉÃvÀ£ÀªÀ£ÀÄß ªÀiÁ¥À£À ªÀiÁrgÀÄvÉÛãÉ. ¢: 23.11.2010 jAzÀ 31.05.2019 gÀªÀgÉUÉ MlÄÖ
gÀÆ. 24,87,185/- UÀ¼ÀµÀÄÖ ªÉÃvÀ£À ¨ÁQUÉ rQæzÁgÀgÀÄ CºÀðjgÀÄvÁÛgÉ JAzÀÄ ªÀgÀ¢
ªÀiÁrgÀÄvÉÛãÉ."
18. The Court Commissioner got marked his report at Ex.C-
1 and the Ex.C-1 is contemplated all these remarks and
further the calculation sheet is annexed with his report.
According to the report, the Court Commissioner has
turned out the claim for a sum of Rs.24,87,185/0 and
recommended the said amount as payable by the Judgment
Debtors and as the Decree holder is entitled to that much of
amount. The Decree holder has not questioned and elicited
anything from the mouth of CW-1 and he completely neutral
from opposing the report of the Court Commissioner by
reacting in any manner. Therefore, the Decree holder has
- 17 -
NC: 2024:KHC:508
not opted to put the PW-1 into the cross-examination in any
manner. Whereas, the judgment debtor has put the CW-1
into the cross-examination and contended that:
" ¢: 16.08.2014 gÀ DqÀ½vÀ ªÀÄAqÀ½AiÀÄ £ÀqÀªÀ½AiÀÄ£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ ¨ÉÃgÉ
AiÀiÁªÀÅzÉà £ÀqÀªÀ½ DV®è JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQë ªÀÄÄAzÀĪÀjzÀÄ ªÀÄvÉÆÛAzÀÄ
£ÀqÀªÀ½AiÀÄ£ÀÄß ºÉÆgÀr¸À9ÁVzÉ J£ÀÄßvÁÛgÉ. ¸ÀzÀj £ÀqÀªÀ½AiÀÄ£ÀÄß £À£Àß ªÀgÀ¢
eÉÆvÉ ºÁdgÀÄ ªÀiÁr®è JAzÀgÉ ¸Àj. ¢: 16.08.2014 gÀ £ÀqÀªÀ½AiÀÄ£ÀÄß
ºÉÆgÀvÀÄ¥Àr¹ AiÀiÁªÀÅzÉà £ÀqÀªÀ½AiÀÄ£ÀÄß DqÀ½vÀ ªÀÄAqÀ½ ªÉÃvÀ£À ¥ÀjµÀÌgÀuÉUÉ
¸ÀA§A¢¹zÀAvÉ AiÀiÁªÀÅzÉà ºÉÆgÀr¹®è JAzÀgÉ ¸ÀjAiÀÄ®è. D jÃw ¥ÀjõÀÌøvÀ
ªÉÃvÀ£À ±ÉæÃt £ÀqÀªÀ½AiÀÄ£ÀÄß ªÀiÁqÀzÉà EgÀĪÀÅzÀjAzÀ £À£Àß ªÀgÀ¢AiÀÄ°è D
¸ÀA§AzsÀ zÁR9É ®¨sÀå«®è JAzÀgÉ ¸ÁQë 2016 gÀ°è ªÀÄvÉÆÛAzÀÄ
£ÀqÀªÀ½AiÀiÁVzÉ J£ÀÄßvÁÛgÉ. ¸ÀzÀj zÁR9É £Á£ÀÄ ºÁdgÀÄ ªÀiÁrgÀĪÀ ªÀgÀ¢
eÉÆvÉ E®è JAzÀgÉ ¸Àj. ¢: 16.08.2014 gÀAzÀÄ ªÉÃvÀ£À ¥ÀjõÀÌøvÀ
DzÉñÀªÀ£ÀÄß DV£À ªÀåªÀ¸ÁÜ¥ÀPÀgÀ «zÁåºÀðvÉ DzsÁgÀzÀ ªÉÄÃ9É ¤UÀ¢
ªÀiÁqÀ9ÁVzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÀÄ ¥Àæw ªÀµÀðzÀ rQæzÁgÀ£À ªÉÃvÀ£À
¥ÀæªÀiÁtªÀ£ÀÄß ªÀgÀ¢AiÀÄ°è ¤UÀ¢¥Àr¹®è JAzÀgÉ ¸ÀjAiÀÄ®è. rQæzÁgÀPÀ PÉêÀ®
gÀÆ. 13,00,600/- ºÀtPÉÌ ªÀiÁvÀæ CºÀð£Éà ºÉÆgÀvÀÄ gÀÆ. 24,87,185/-
ºÀtPÉÌ CºÀð£À®è JAzÀgÉ ¸ÀjAiÀÄ®è."
As mentioned above, the judgment debtors have filed
revised memo of calculation by withdrawing their previous
memo of calculation and therein, they have contended
that, their society is liable to pay an amount of
Rs.21,23,177/- only. In detail, the judgment debtors have
set out the memo of calculation by opposing the claim
made by the decree holder in his petition. But after
tendering evidence from the part of court commissioner,
the judgment debtors havefiled fresh memo of calculation
and themselves have falsified the legitimacy in their
previous memo of calculation. Thereby, the previous or
- 18 -
NC: 2024:KHC:508
early memo of calculation set out by the Judgment
Debtors is no more under consideration. When the Decree
Holder has not opposed the report turned out by the Court
Commissioner and he has not question the said report
either by filing any objection or put him into the cross-
examination, then he has withdraw or renunciate his claim
made in his petition.
19. As already mentioned, the Judgment Debtors have set
out revised memo of calculation and even though the
judgment debtors have not agreed to pay DA and HRA as
operable from August 2016. The judgment involved in
support of the execution petition is mandates to pay salary
as retrospected from the date of termination of decree
holder from his service. By following the terms of order the
Court Commissioner has computed the amount payable
by the judgment debtors by including the revised scale
and other allowances including benefit of revised DA and
HRA. Considered the terms of final judgment involved in
support of execution petition, the computation of
executable amount by adopting the yardstick on the part of
Court Commissioner is as per the final judgment. The
judgment Debtors have admitted the pay scale, DA, HRA
as operated based on the resolution dated 16.08.2014, but
the judgment debtors have denied further revised rate
towards DA and HRA and to that extent, the judgment
debtors have denied their payment liability to the Decree
holder. The Decree holder has placed his reliance on
report issued by salary fitness details report issued by the
judgment debtors dated 07.03.2020.
- 19 -
NC: 2024:KHC:508
20. On carefully considered the said details, it shows that,
the resolution with respect to commencement of DA and
HRA is approved by the judgment debtors. As against the
said declaration or certificate, the judgment debtors have
questioned the partial legitimacy in the report submitted by
the Court Commissioner and filed different memo of
calculation. The report issued by the judgment debtors
dated 17.03.2020 itself falsified the stand taken by
judgment debtors. Though the judgment debtors have
raised adverse voice against the legitimacy Ex.C-1, but the
judgment debtors have nothing is elicited from the mouth
of CW-1 to discredit his report. The CW-1 has audi
alternam partem as per direction of this court and secured
both side parties and conducted enquiry and also
connected document submitted by parties and based on all
these exercise the Court Commissioner has prepared
report. Even the judgment debtor is not disputed the
legitimacy of Ex.C-1 to the extent of other part except DA
and HRA as operable from August 2106. As already noted
the salary fitness details issued by judgment debtors falsify
the stand taken by judgment debtors. Then on carefully
considered the report submitted by the Court
Commissioner, it is very clear that the said report is carry
with legitimacy in all angle. It is opened whether the post of
CW-1 is established from status and he is higher authority
to the ARCS and various societies come within the ambit of
his authority. Then it shows that, without cause any bias or
discrimination, the CW-1 has secured the parties and
- 20 -
NC: 2024:KHC:508
collected the details from them and based on the survey
conducted on the existing factors, the said authority has
worked out the report or calculated the amount available
from the part of judgment debtors. Then, this court is not
find with any lacuna or deficiency in the report submitted
by the Court Commissioner. Whatsoever stand taken by
the judgment debtors is liable to be quashed or set aside
by following objection and various inconsistent calculation.
The stand taken by the judgment debtors is not tenable
and liable to be go against the judgment debtors have time
to time to changed the strategy in their stand with intention
to escape from their liability and they have protracting the
proceeding. As per version of the Court Commissioner, he
has prepared the report marked at Ex.C-1 in the instance
of both side parties. But while causing enquiry and
preparing the report on the part of Court Commissioner,
the Judgment Debtors have not at all opposed the disputed
portion by providing any proof. Then, it shows that, the
adverse voice raised by the Judgment Debtors to partial
report is not tenable. As such, the stand taken by the
judgment debtor is not tenable and the report submitted by
the Court Commissioner is totally acceptable one. Thus, I
answered Point No.1 in the Affirmative.
21. POINT NO.2: In view of the forgoing reasons, legal
prepositions and discussion made above, I proceed to
pass the following:
ORDER
The report submitted by the Court Commissioner
marked at Ex.C.1is hereby accepted.
- 21 -
NC: 2024:KHC:508
The Decree holder is entitled to recover the amount
determined by the CW-1 through Ex.C-1 Whereas the
judgment debtors are liable to satisfy the amount
determined by the CW-1 through Ex.C-1.
At the same time, the Judgment debtors are at liberty
to get deduction of amount, which already paid out of total
amount payable.
The judgment debtors are hereby directed to pay
balance amount within 15 days from the date of this
judgment."
5. A perusal of the material on record including the
impugned order will clearly indicate that the Executing Court was
fully justified in accepting the Commissioner's Report, which is in
consonance with the material on record and cannot be said to be
capricious or perverse or having resulted in miscarriage of justice
warranting interference by this Court in the exercise of its
jurisdiction under Article 227 of the Constitution of India as held in
Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423 case.
6. Accordingly, I do not find any merit in the petition and
the same is hereby dismissed.
Sd/-
JUDGE
SV
