Disposed

Sri H G Basavanagouda v. Sri B S Manjunatha Shetty

Karnataka HC5 Aug 2014WP/2204/2014

Case brief

AI extract

What is this about?

The High Court observed that an executing court must ascertain and record a finding of jurisdiction before proceeding with execution of a decree passed by a different court, even if the judgment-debtor previously failed to object.

What did the court decide?

The execution petition must be quashed; the executing court must first ascertain and record a finding of jurisdiction before proceeding.

Sri H G Basavanagouda Vs Sri B S Manjunatha Shetty — Execution and Attachment | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 05^th DAY OF AUGUST 2014

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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WRIT PETITION No. 2204 OF 2014 (GM-CPC)

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BETWEEN:

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Sri. H.G.Basavanagouda, Son of Late Eshwarappa, Aged about 55 years, Proprietor Sree Gudda Basaveshwara Trading, T.B.Circle, Devanayakana Halli, Honnali Town – 577 217, Davanagere District.

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…PETITIONER

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(By Shri. P.M.Siddamallappa, Advocate)

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AND:

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Sri. B.S.Manjunatha Shetty, Son of Shivaram Shetty, Aged about 58 years, Residing at Kammaraghatte Village, Honnali Taluk – 577 217, Davanagere District.

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…RESPONDENT

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(By Shri. B. Rudra Gowda, Advocate)

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This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 9.12.2013 passed in Ex.No.24/2007 on the file of Civil Judge (Jr.Dn.) Honnali vide Annexure-D.

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This Writ Petition is coming on for Preliminary Hearing in ‘B’ Group this day, the court made the following:

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O R D E R

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The present petitioner is said to be the judgment-debtor

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who has suffered a decree and that has attained finality. The decree is sought to be executed by presenting it before the Civil Judge, Honnali, whereas the decree was obtained before the Court of the Senior Civil Judge, Harihar. It transpires that the execution petition was initially filed before the Senior Civil Judge, Harihar and the same was dismissed for want of pecuniary jurisdiction. Therefore, the petition having been filed before the Court of the Civil Judge, Honnali, the judgmentdebtor has taken a serious objection as to the maintainability of

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the execution petition. The court below has rejected the application on the footing that the earlier execution petition was dismissed on the ground of pecuniary jurisdiction and that

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thereafter, the present execution petition has been filed and since the petitioner herein had not objected to the jurisdiction in the first instance, he is deemed to have waived any objection to jurisdiction and has therefore held that the application was not maintainable and has rejected the same.

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It is to be noticed that under Order XXI Rule 10 of the

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Code of Civil Procedure, 1908 (Hereinafter referred to as the ‘CPC, for brevity), a decree-holder shall apply not only to the Court which passes the decree, but, to such other officer, who is appointed in that behalf and if the decree has been sent to another court, then to such court. Therefore, it is quite possible that the Civil Judge, Honnali may have jurisdiction to entertain the petition. But, since there is no finding that it has been conferred with jurisdiction to execute those decrees, which have been rendered by the Senior Civil Judge, Harihar, it would be necessary to record such a finding before proceeding further in that execution petition. This is in the interest of both the parties. For if the decree is executed only on the ground

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that the judgment-debtor had not raised any objection to the jurisdiction, it may result in a miscarriage of justice. Therefore, the executing court shall ascertain and record a finding that it indeed has jurisdiction to proceed with the execution petition and proceed with the same in accordance with law.

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With that observation, the petition stands disposed of.

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Sd/JUDGE

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Sri H G Basavanagouda v. Sri B S Manjunatha Shetty

Case brief

What is this about?

What did the court decide?

Sri H G Basavanagouda v. Sri B S Manjunatha Shetty

Case brief

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What did the court decide?

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