Karnataka High Court
Mahesh D Yatnalli vs R. Sujatha Alias Saraswathi on 2 May, 2025
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NC: 2025:KHC:17934
WP No. 5637 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MAY, 2025
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 5637 OF 2025 (GM-FC)
BETWEEN:
MAHESH D. YATNALLI,
S/O. DEVENDRAPPA,
AGED ABOUT 52 YEARS,
R/AT NO. 202, "KAUTIK",
SHIVA RESIDENCY, 24TH MAIN END,
VINAYAKA NAGAR ROAD, NEAR BIG BAZAAR,
J.P. NAGAR 5TH PHASE, PUTTENHALLI,
BENGALURU - 560 078.
...PETITIONER
(BY SRI. RAVI B. NAIK, SR. COUNSEL A/W
SRI. VIJETHA R. NAIK, ADVOCATE FOR
SRI. R.A. DEVANAND, ADVOCATE)
AND:
R. SUJATHA @ SARASWATHI,
D/O SRI. RAMACHANDRAN,
Digitally AGED ABOUT 49 YEARS,
signed by R/AT FLAT NO.G01,
SUVARNA T MANAR MERLYN APARTMENT,
Location: SUNSHINE COLONY 14TH MAIN,
HIGH 12TH 'A' CROSS, BTM 2ND STAGE,
COURT OF BENGALURU - 560 076.
KARNATAKA ...RESPONDENT
(BY SRI. R.A. DEVANAND, ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 07.02.2025 PASSED BY THE III ADDL. PRINCIPAL JUDGE,
FAMILY COURT, BENGALURU, IN EX. PET. NO.38/2024, PRODUCED
AT ANNEXURE-M, IN THE INTEREST OF JUSTICE AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
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WP No. 5637 of 2025
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
Aggrieved by the order passed in Execution Case No.
38/2024 dated 07.02.2025 by the III Addl. Family Court,
Bengaluru, the father is before this Court.
2. In the order dated 07.02.2025, it is observed that
the judgment debtor, the decree holder and the counsel
present and filed P.F. with request for issue of warrant against
judgment debtor through Commissioner of Police. The Court
observes that in view of Section 56 of the CPC, the Court shall
not order for the arrest or detention of a women in the Civil
Prison in execution of the decree. Hence, prayer of the
advocate for decree holder for issue of warrant against the
judgment debtor through Commissioner of Police as prayed in
the P.F. dated 07.02.2025 is rejected. Further, the Court
observes that both the judgment debtor and the decree holder
are directed to comply the terms of the decree passed in RPFC
No. 104/2022. It is also observed that in spite of giving several
opportunities, both the mother and father failed to comply the
terms of the decree as well as the terms of the settlement
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arrived at between them during the pendency of the Execution
Petition. Further, the act, behaviour and attitude of parties to
the proceedings is affecting the activities of the child. Both the
parties to the proceedings are trying to set their scores against
each other using the child as pawn, which cannot be permitted.
Welfare and well-being of the child is paramount and rights of
the parties will not prevail over the welfare and well-being of
the child. Hence, if the parties are not in a position to comply
with the terms of the decree, both the parties are directed to
take steps to put the child in the boarding school, both availing
visitation rights to the child.
3. Learned Senior counsel appearing for the petitioner-
father submits that when the compromise decree is violated, he
has filed a contempt before this Court i.e., CCC No.203/2023
and that came to be disposed of by order dated 15.12.2023.
The Contempt Petition is disposed of reserving liberty to the
complainant to have recourse for the redressal elsewhere in
accordance with law. Thereafter, he has moved this Execution
Petition. Learned senior counsel submits that, when there is a
violation of the order of the Court and that too in a
compromised decree, the Court has to execute the same.
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Without executing the said order, the Court has passed an
order that the child has to be admitted in the boarding school
and both the parents have the visitation. It is submitted that as
per the compromise, the father is entitled for the 75% of the
custody during the visitation and in that regard, the order
needs to be passed by this Court. It is submitted that Section
56 of CPC has no application in the facts of the case and it
exclusively applies to the money decree.
4. Learned counsel appearing for the respondent -
mother submits that there is violation of the compromise
decree and the father himself has violated and he comes before
the Court seeking execution of the same. However, he also
submits that Court ought not to have passed an order directing
the boy to be joined in the boarding school. It is submitted that
it is not in the welfare of the child.
5. Having heard the learned Senior Counsel and the
Counsel on either side, perused the material on record. When
an order is passed, both the parties have to comply with the
order of the Court and when the parties are not complying with
the order passed by the Court and one of the parties
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approaches the Court seeking execution of the same, it is the
bounden duty of the Court to execute the order and the Court
cannot wait for the parties or request the parties to comply
with the order. In this case, particularly in a case concerning a
minor just because either of the parents have failed to comply
with the order of the Court, the Court cannot pass an order
directing the boy to be joined in the boarding school, which will
definitely have an impact on the child. In the considered
opinion of the Court, the order that is passed by the Court
needs to be set aside. Further, once there is a compromise
decree, question of again passing an order by this Court or
clarifying the order earlier passed saying that the father has
75% of the Summer Vacation or the custody should be given to
the father cannot be done in the writ petition filed under Article
227 of the Constitution of India. In the light of the above
discussion, this Court is passing the following:
ORDER
i) The order dated 07.02.2025 passed in Execution
Case No.38/2024 by the III Addl. Family Court,
Bengaluru is set aside and the Executing Court
shall ensure that the compromise order is complied
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with after considering the objections, if any, by the
judgment debtor.
ii) Accordingly, the Writ Petition is disposed of.
iii) All IAs., in this petition shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
KA
CT: BHK
