Partly allowed

Bahubali Devagouda Nasalapure v. Shantappanna Miraji

Karnataka HC26 Jun 2019WP/111004/2014

Case brief

AI extract

What is this about?

The High Court disposed of two writ petitions filed by the judgment debtor. In the first petition, conditions regarding court appearance and compromise were set aside, with the executing court directed to dispose of the matter on merits within one year. In the second, the arrest order was set aside as illegal due to lack of notice under CPC, and cross-examination permission was granted.

What did the court decide?

Conditions regarding court appearance and compromise were set aside. Arrest order quashed for lack of notice. Permission to cross-examine granted. Executing court directed to dispose of cases within o

Bahubali Devagouda Nasalapure Vs Shantappanna… — Execution and Attachment | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 26^TH DAY OF JUNE, 2019

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BEFORE

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THE HON’BLE MR.JUSTICE ARAVIND KUMAR

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WRIT PETITION No.111004 OF 2014 [GM-CPC] C/w.WRIT PETITION Nos.101203-101204 OF 2015

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In W.P.No.111004/2014:

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Between:

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Shri Bahubali Devagouda Nasalapure, Age 54 years, Occ: Govt. Employee, R/o: Mahaveer Nagar, Chikodi.

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… Petitioner

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(By Shri Shreevatsa Suresh Hegde, Advocate)

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And:

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Shri Shantappanna Miraji Urban Co-Op. Bank , Chikodi, By its General Manager.

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… Respondent

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(By Shri Shivaraj P.Mudhol, Advocate)

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This writ petition is filed under Articles 226 and 227 of the Constitution of India, praying to quashing the impugned order dated 27.10.2014, passed on I.A.No.12 in Ex.No.05/2001 by the Senior Civil Judge, Chikodi, vide Annexure-A imposing certain conditions and further be

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pleased to modify the same in suitable and appropriate terms.

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In W.P.Nos.101203-101204/2015:

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Between:

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Shri Bahubali Devagouda Nasalapure, Age 54 years, Occ: Govt. Employee, R/o: Mahaveer Nagar, Chikodi.

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… Petitioner

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(By Shri Shreevatsa Suresh Hegde, Advocate) And:

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Shri Shantappanna Miraji Urban Co-Op. Bank, Chikodi, By its General Manager.

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… Respondent

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(By Shri Shivaraj P.Mudhol, Advocate)

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These writ petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned order dated 12.01.2015, passed on I.A.No.11 by the Senior Civil Judge, Chikodi in Execution Petition No.30/2002, vide Annexure-A and further to allow the same and to quash the order dated 12.01.2015 passed on I.A.No.12 by the Senior Civil Judge, Chikodi in Execution Petition No.30/2002 vide Annexure-A and further to allow the same.

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These writ petitions coming on for preliminary hearing – B group , this day, the Court made the following:

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ORDER

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These two writ petitions have been filed by the judgment debtor in E.P.No.5/2001 and E.P.No.30/2002 respectively, which proceedings have been initiated by the respondent-decree holder to enjoy the fruits of the decree/award, said to have been obtained by him in a dispute raised under Section 70 of the Karnataka Cooperative Societies Act.

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In W.P.No.111004/2014, which has been filed for setting aside the order dated 27.10.2014, passed on I.A.No.12, it is noticed that said application was filed by the petitionerjudgment debtor for releasing him from judicial custody contending that JDR was ready to deposit the entire E.P. amount subject to calculation of interest at 12% p.a. and also sought for closure

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of the execution proceedings. Said application has been allowed in part subject to conditions stipulated therein and reads as under:

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“ORDER

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IA U/s 58 and 151 of CPC filed by the JDr No.1 is hereby allowed with subject to following conditions.

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1) JDr No.1 shall execute personal bond of Rs.1,00,000/-.

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2) He shall appear before this Court on all the dates of hearing.

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3) Further he shall settle and to file compromise petition on or before 30^th of this month.

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Office to take bond of JDr No.1. After executing the bond, office to release the JDr No.1.”

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Learned advocates appearing for the parties, Shri Shreevatsa Suresh Hegde and Shri Shivaraj P.Mudhol have been fair in submitting that condition Nos.2 and 3 may be set aside and matter be remitted back to the executing Court

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for being disposed of on merits by keeping open all contention of both parties.

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In the light of said submissions made, accordingly writ petition stands disposed of namely condition Nos.2 and 3 imposed by the learned trial Judge in E.P.No.5/2001 stands set aside and executing Court adjudicating E.P.No.5/2001 is divotal to dispose of the same on merits and in accordance with law and contentions of both parties with regard to the payment of interest is kept open to be adjudicated by the executing Court expeditiously and at any rate within one year since execution proceedings are pending from past 18 years.

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Insofar as W.P.Nos.101203101204/2015 is concerned, it would clearly indicate that I.A.No.11 filed by the judgment debtor was for permission to cross-examine DHR, namely General Manager of the decree holder

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Bank. Shri Shivaraj P.Mudhol, learned counsel appearing for the respondent has no objection for allowing the application but prays for a conditional order being passed namely to direct the executing Court to dispose of the matter within a time frame, contending that said proceedings have been pending for the past 17 years.

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Insofar as I.A.No.12 Annexure-E filed by the judgment debtor, as could be seen from its contents, it was for recalling the order dated 29.11.2013, which had been passed by issuing arrest warrant against petitioner – JDR No.1, since there is infraction of Section 51 of CPC namely order of arrest is not preceded by issuance of notice i.e., show cause notice as required under Section 51 of CPC and Order 21 Rule 37(1) read with Section 55 of CPC to judgment debtor, same is illegal. Said order cannot stand the test of law. This view is also

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supported by the authoritative judgment of the Hon’ble Apex Court in the case of Jolly George Varghese and another vs. the Bank of Cochin reported in (1980)2 SCC 360. Hence, petitioner is entitled to the relief sought for.

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Accordingly, W.P.Nos.101203-101204 of 2015 is hereby allowed. Impugned order dated 12.01.2015 passed on I.A.Nos.11 and 12 is hereby set aside and interlocutory applications are hereby allowed. Petitioner-JDR is permitted to cross-examine the witness as prayed for in I.A.No.11. Both parties to cooperate with the executing Court for speedy disposal of the matters. The Executing Court shall dispose of the proceedings expeditiously keeping in mind the said proceedings is pending for past 17 years and at any rate within one year from the next date of hearing. All contentions including the issue relating to chargeability of interest is kept open

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to be adjudicated by the executing Court and no opinion is expressed in that regard.

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SD/JUDGE

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Vnp*

Bahubali Devagouda Nasalapure v. Shantappanna Miraji

Case brief

What is this about?

What did the court decide?

Bahubali Devagouda Nasalapure v. Shantappanna Miraji

Case brief

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