Disposed

Subbana Gouda S/O Kumara Gouda v. Kottagi Siddalingappa S/O Malappa

Karnataka HC14 Jun 2021WP/103544/2019

Case brief

AI extract

What is this about?

Petitioner challenged an order issuing an arrest warrant during pendency of a petition setting aside an ex parte decree, contending lack of opportunity to defend. Court directed continuation of interim stay until the pending civil miscellaneous suit is disposed expeditiously.

What did the court decide?

Direct continuation of interim stay pending disposal of Misc. Petition No.4/2018 and direction to trial court to dispose of same within four months.

Subbana Gouda S/O Kumara Gouda Vs Kottagi… — Execution and Attachment | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 14^th DAY OF JUNE 2021

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BEFORE

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THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD

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WRIT PETITION No.103544/2019 (GM-CPC)

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BETWEEN :

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SUBBANA GOUDA S/O KUMARA GOUDA AGE: 56 YEARS, OCC: TRANSPORT BUSINESS, R/O: ANAND BAZAR, SANDUR TOWN, DIST: BALLARI.

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.. PETITIONER

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(BY SRI. M.H. PATIL & SRI. HARSHAVARDHANA M. PATIL, ADVS.)

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AND :

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KOTTAGI SIDDALINGAPPA S/O MALAPPA AGE: 42 YEARS, OCC: BUSINESS CUM AGRICULTURIST, R/O SANDUR TOWN, TQ and DIST: BALLARI. .. RESPONDENT (BY SRI. B. SHARANABASAWA, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, KUDLIGI, SITTING AT SANADUR ON I.A.NO.4 DATED:17.11.2018 IN EXECUTION PETITION NO.56/2017 VIDE ANNEXURE-"E".

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THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This writ petition is filed under Article 227 of the Constitution of India challenging the order dated 17.11.2018 passed by the learned Senior Civil Judge and JMFC, Kudligi sitting at Sandur, on I.A. No.4 in Execution Petition No.56/2017 wherein arrest warrant has been issued against the petitioner.

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The case of the petitioner is that the respondent/decree holder had filed a suit in O.S. No.65/2016 against the petitioner/judgment debtor for recovery of loan amount. It is the further case of the petitioner that the notice issued by the trial Court was not served on the petitioner, as such, exparte decree was passed on 25.11.2016 against the petitioner ordering the petitioner to pay a sum of Rs.6,02,000/- with interest at 9% per annum from the date of suit till its realization. Thereafter, the respondent filed Execution Petition No.56/2017 for executing the judgment and decree dated 25.11.2016. The petitioner filed Civil Misc. No.4/2018 for setting aside the exparte decree. During the pendency of the Civil Miscellaneous No.4/2018, the Executing

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Court has passed the impugned order. Hence, the petitioner is before this Court.

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Sri. M.H. Patil, learned counsel appearing for the petitioner submitted that the trial Court has passed a decree on 25.11.2016 in O.S. No.65/2016 by placing the petitioner exparte. Since the petitioner had not been given an opportunity to defend his case, he filed Civil Miscellaneous for setting aside the exparte decree. The same is pending before the trial Court. During the pendency of Civil Miscellaneous, the Executing Court, in Execution Petition No.56/2017 has passed an order issuing arrest warrant against the petitioner. Hence, he sought for allowing the writ petition.

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Per contra, learned counsel appearing for the respondent has submitted that since the petitioner did not appear before the trial Court in O.S. No.65/2016, he was placed exparte and an exparte decree was passed on 25.11.2016. Execution Petition was filed in the year 2017 by the respondent. Only after service of notice in the Execution Petition, the petitioner filed Civil Miscellaneous for setting aside the exparte decree and the petitioner is protracting the matter. Therefore, the petitioner is not entitled for any relief

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by this Court. He further contended that the impugned order passed by the Executing Court is in accordance with law. Hence, he sought for dismissal of the writ petition.

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Heard the learned counsel appearing for the parties and perused the writ papers.

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It is not in dispute that the trial Court has passed an exparte decree in O.S.No.65/2016 on 25.11.2016 thereafter the respondent herein has filed an execution petition in EP No.56/2017 for executing the decree. During the pendency of the Execution Petition, the petitioner has filed Civil Miscellaneous 4/2018 for setting aside the exparte decree and the same is pending before the learned Senior Civil Judge and JMFC, Kudligi sitting at Sandur. During the pendency of the Civil Miscellaneous, the Executing Court has passed the impugned order issuing arrest warrant. This Court by order dated 07.02.2019 has granted interim order of stay staying the order dated 17.11.2018 passed by the Executing Court. The civil miscellaneous filed by the petitioner before the learned Senior Civil Judge and JMFC, Kudligi is pending.

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Under this circumstance and in the interest of

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justice, without expressing any opinion on the merits of the case, the only direction that could be issued in this case is, the interim order granted by this Court on 07.02.2019 will have to be continued till Civil Miscellaneous No.4/2018 filed by the petitioner is disposed of. If the miscellaneous petition is dismissed, the interim order granted by this Court will come to an end and the Executing Court can proceed further in the matter and the learned Senior Civil Judge and JMFC, Kudligi, sitting at Sandur is directed to dispose of Civil Misc.4/2018 filed by the petitioner as expeditiously as possible but not later than four months from the date of receipt of a copy of

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this order. However, it is made clear that the petitioner shall co-operate in speedy disposal of Civil.Misc.4/2018.

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With the aforesaid observations, the writ petition is disposed of.

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Pending I.As. if any stand disposed of as they do no survive for consideration.

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kmv

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Sd/JUDGE

Subbana Gouda S/O Kumara Gouda v. Kottagi Siddalingappa S/O Malappa

Case brief

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Subbana Gouda S/O Kumara Gouda v. Kottagi Siddalingappa S/O Malappa

Case brief

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What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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