This Court disposed of a review petition filed by a bank challenging an order in a prior writ petition regarding liability for mesne profits. The Court held that the matter could be adjudicated in pending execution appeals and dismissed the review petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF MARCH, 2022
BEFORE
THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
REVIEW PETITION No.254 OF 2018
BETWEEN:
State Bank of Mysore (now State Bank of India), having its branch office at Market Branch, Sayyaji Rao Road, Mysuru- 570021, Now taken over By Asset Recovery Management Branch, A Block, BKG Complex, Mysore Bank Circle, Avenue Road, Bangalore – 560 009 Represented herein by its Chief Manager Mr. Suresh A. .. Petitioner
(By Sri. S.S. Naganand, Senior Counsel for Smt. Sumana Naganand & Sri. Vikram U.R., for M/s. Just Law)
AND:
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its CEO, Mr. Prashant Toshneil.
.. Respondents
(By Sri.S.P. Kulkarni, Senior Counsel for Sri. Srikanth Patil K. Advocate for R-1; Smt. Varsha Hittinahalli, Advocate for R-2)
This Review Petition is filed under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, praying to review the order dated 18-02-2016 passed by this Court in Writ Petition No.19821/2015 and allow the said writ petition, in the interest of justice and equity.
This Review Petition coming on for Admission, through Physical Hearing/Video Conferencing Hearing, this day, the Court made the following:
O R D E R
The present review petition is filed against the order dated 18-02-2016 passed by this Court in Writ Petition No.19821/2015 (GM-CPC).
it was the secured creditor of the present respondent No.2 and respondent No.1 was a lessor of respondent No.2 with respect to the premises wherein the respondent No.2 herein is said to have installed certain movable goods for its business purposes.
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4,19,760/- to the plaintiff together with interest thereupon at 12% per annum from the date of suit within fifteen days. Since the defendant therein (respondent No.2 herein) was alleged to have not kept up its undertaking in the compromise petition, the respondent No.1 herein instituted an execution petition in Execution Case No.580/2014, in the Court of the learned Principal SeniorR.P.No.254/2018
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Civil Judge at Mysore (hereinafter for brevity referred to as “the Executing Court”) against the present respondent No.2 herein, arraigning it as judgment debtor.
the present petitioner (Bank) got itself impleaded as judgment debtor No.2. In the said Execution Case, the decree holder who is the present respondent No.1 filed an application, i.e I.A.No.III, under Order XXI, Rule 64 of the Code of Civil Procedure, 1908 (hereinafter for brevity referred to as “the CPC”), seeking for auction sale of the movables shown in the schedule to the application, which was said to have been entrusted to the custody of the applicant (respondent No.1 herein) by the Court Amin. The Executing Court passed an order on the said I.A.No.III on 24-04-2015 (as per Annexure D), wherein it noticed that, the Bank has the first charge over the movables described
in I.A.No.III and as such, the said Bank shall remove the movables found in the premises forthwith at least by seven days from the date of the said order, failing which, the
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decree holder was entitled to remove the movables from the premises at the costs of the applicant. It was further observed in the same order that the decree holder was at liberty to initiate separate proceedings for mesne profits against the applicant if it is allowed by law. Aggrieved by the same, the present petitioner as a Bank had filed a writ petition before this Court in Writ Petition No.19821/2015 (GM-CPC). This Court, after hearing both side, while dismissing the said writ petition, by its order dated 18-02-2016, made an observation as below:
“so far as the claim made by the respondent No.1, who is the owner of the premises, for causing loss by not delivering the premises and by keeping the movables in the said premises is concerned, the executing court is directed to hold an enquiry and fix an appropriate amount as usage amount payable to respondent No.1.”
It is contending that the said observation regarding
the mesne profit was unwarranted and uncalled for, the petitioner - Bank has preferred this review petition.
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the consent of the learned Senior Counsels and other counsel for the parties, the same is taken up for its final disposal.
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the order under review does not specifically mention as to
who is liable to pay the mesne profit to respondent No.1.
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the decree holder has taken the possession of the suit schedule property of O.S.No.659/2014 as the vacant possession of the suit property, but simultaneously has also taken the custody of the movables situated therein. Thus, while taking the possession of the suit schedule property, he has taken the custody of the movables also as their custodian. Therefore, for the maintenance of those goods in the condition in which they were while taking custody would be upon him and governed by the relevant laws. Simultaneously, the original borrower who is the respondent No.2 herein since had created charge of those movables, but still continued to be in possession of those movables and using those movables for its business purposes, he too would be a custodian or bailee as per the relevant laws at the relevant point of time. It is in that regard, this Court, in its order dated 18-02-2016, in Writ Petition No.19821/2015 (GM-CPC) in the operative portion of its order which is extracted herein above, has not
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specifically mentioned as to who should pay the mesne profit to respondent No.1.
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the Execution First Appeals in Execution First Appeal No.8/2018 and Execution First Appeal No.9/2018, however, subject to any orders/interim order passed in those two Execution First Appeals by the said Court in that regard.
With the above observation, the review petition stands dismissed.
Sd/JUDGE
BMV*
1 issue framed by the court
Whether the review petition filed under Order XLVII Rule 1 CPC disclosing an error apparent on the face of the record merits the interference of this Court.
2 provisions across 1 enactments
State Bank of India
Sri. Muralidhar Bhagavat S/o. Sri. Raghavendra Bhagwat
M/s. Gericke Vacuum Pumps Ltd.
H.B. PRABHAKARA SASTRY
As recorded by the court registry
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