Karnataka High Court
The Assistant Chief Engineer vs C.A. Ikram Ull Haq Atif on 2 January, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 6161 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 6161 OF 2023 (GM-CPC)
BETWEEN:
THE ASSISTANT CHIEF ENGINEER,
OFFICE OF THE DEPUTY CHIEF ENGINEER (C),
DEPARTMENT OF RAILWAYS,
SOUTH WESTERN RAILWAY,
OPP. LIC BUILDING, K.R.S. ROAD,
YADAVAGIRI, MYSORE - 570 020.
...PETITIONER
(BY SRI. KUMAR M.N, ADVOCATE)
AND:
1. C.A.IKRAM ULL HAQ ATIF,
SON OF LATE ABID NAYEE MULHAQ C.H.,
AGED ABOUT 42 YEARS,
Digitally signed RESIDING AT NO. A/29,
by SUCHITRA M J
Location: High
NEW NO. 817, OPPOSITE TO FOREST OFFICE,
Court of A.P. MOHALLA, CHAMARAJANAGAR - 571 313.
Karnataka
2. THE ASSISTANT COMMISSIONER AND
SPECIAL LAND ACQUISITION OFFICER,
OFFICE BEHIND CIVIL COURT,
M.M.HILLS ROAD, KOLLEGAL - 571 440.
...RESPONDENTS
(BY SRI. P. MAHESHA, ADVOCATE FOR R1;
SMT. JYOTI M. MARADI, HCGP FOR R2)
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WP No. 6161 of 2023
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, 1950 PRAYING TO SETTING ASIDE
THE ORDER DATED 10.01.2023 PASSED IN EXECUTION
PETITION NO.50/2020 BY THE HONBLE ADDL. SENIOR CIVIL
JUDGE AND JMFC CHAMARAJANAGARA AT
CHAMARAJANAGARA, VIDE ANNX-E 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
10.01.2023 passed in Execution Petition No.50/2020 by the
Additional Senior Civil Judge and J.M.F.C. Chamarajanagara at
Chamarajanagara, whereby the Executing Court directed
issuance of attachment warrant as against the petitioner-
Judgment debtor.
2. Heard learned counsel for the petitioner-judgment
debtor and learned counsel for the respondents-decree holders.
3. The material on record discloses that on
27.04.2019, the Reference Court in LAC No.22/2015 passed an
award in favour of the respondent-decree holders, which was
put into execution in the instant execution proceeding in which
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the respondent-decree holders sought for a sum of
Rs.16,89,086/-. The said execution proceedings are being
contested by the petitioner-judgment debtor.
4. During the pendency of the execution of the
documents, respondent-decree holders filed a memo of
calculation dated 28.02.2022, claiming a sum of Rs.21,07,666/-
from the petitioner-judgment debtor. The amount claimed by
the respondent-decree holders as well as the memo of
calculations submitted by them was contested and opposed by
petitioner-judgment debtor, who filed his statement of
objections as well as separate memo of calculations before the
Trial Court.
5. It is the grievance of the petitioner-judgment
debtor that despite filing objection to the memo of calculation
filed by the respondent-decree holders and the separate memo
filed by the petitioner-judgment debtor, the Executing Court
has proceeded to summarily issue attachment warrant of
movables without considering the rival claims as regards the
amounts claimed by the respondent-decree holders nor
rendering any finding in this regard and as such, the impugned
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order passed by the Executing Court is a non-speaking, cryptic
and laconic order without any application of mind and without
taking into consideration the objections and the memo of
calculation filed by the petitioner-judgment debtor and as such,
the impugned order deserves to be set aside.
6. Per contra learned counsel for the respondent-
decree holders submits that the memo of calculation filed by
respondent-decree holders was correct and proper and Trial
Court was fully justified in directing issuance of attachment
warrant of the movable of petitioner by passing the impugned
order which does not warrant any interference by this Court in
the present petition.
7. As rightly contended by the learned counsel for the
petitioner, the material on record discloses that the petitioner-
judgment debtor has not only filed detailed statement of
objections on 30.09.2022 to the Execution Petition but has also
filed detailed memo of calculation contesting the claim of the
respondent-decree holder. Under these circumstances, the
impugned order passed by the Executing Court directing the
attachment of movables without considering the objections of
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the petitioner-judgment debtor as well as its memo of
calculations, is clearly an error apparent on face of the record
resulting in miscarriage of justice and warranting interference
by this Court in the present petition. I am therefore of the
considered opinion that the impugned order being arbitrary,
illegal and opposed to principles of natural justice, deserves to
be set aside. Hence, I pass the following:
ORDER
i. The petition is hereby allowed.
ii. Impugned order dated 10.01.2023 is
hereby set aside.
iii. The matter is remitted back to the
Executing Court for reconsideration a
fresh in accordance with law.
iv. The Executing Court is directed to
consider the rival claims of both sides as
well as the respective memo of
calculations filed by the both parties and
proceed to pass appropriate order in
accordance with law within a period of
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three months from the date of receipt of
copy of this order.
v. It is needless to state that till the Trial
Court passes the appropriate order as
stated supra, the Trial Court shall not
pass any precipitate/coercive order
against the petitioner-judgment debtor.
All rival contentions on all aspects of the
matter are kept open and no opinion is
expressed on the same.
Sd/-
JUDGE
AT
CT: BHK
