Allowed

M B Shivagangappa v. H Nageshaiah

Karnataka HC4 Apr 2022WP/4330/2021

Case brief

AI extract

What is this about?

High Court allowed a writ petition challenging an order attaching the petitioner's salary in an execution proceeding. The Court quashed the order due to violation of natural justice, as the petitioner was not heard and the prior decree did not explicitly direct maintenance payments.

What did the court decide?

The order dated 09th February, 2021 attaching salary is set aside; the executing court to consider the application afresh after a hearing.

M B Shivagangappa Vs H Nageshaiah — Child Custody and Guardianship | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 04^TH DAY OF APRIL, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE E.S. INDIRESH WRIT PETITION NO.4330 OF 2021 (GM-CPC)

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BETWEEN:

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M.B. SHIVAGANGAPPA S/O BASAPPA AGED ABOUT 50 YEARS PRIMARY SCHOOL TEACHER, PRESENTLY RESIDING AT N. MATHIGHATTA VILLAGE, NITTUR HOBLI, GUBBI TALUK, TUMAKURU DISTRICT-572 216.

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...PETITIONER

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(BY SRI. GANGADHARAPPA. A.V., ADVOCATE)

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AND:

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H. NAGESHAIAH S/O LATE HUCHAPPA AGED ABOUT 68 YEARS PRESENTLY RESIDING AT 5^TH CROSS, NEW EXTENSION, VINAYAKANAGARA, GUBBI TOWN, TUMAKURU DISTRICT-572 216.

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….RESPONDENT (NOTICE TO RESPONDENT IS HELD SUFFICIENT VIDE ORDER DATED 28.03.2022.)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 09^TH FEBRUARY, 2021 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC., GUBBI IN EXECUTION CASE NO.206 OF 2019 VIDE ANNEXURE-J AND DISMISS THE APPLICATION IA.NO.3 AT ANNEXURE-H; AND ETC.

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THIS PETITION COMING ON FOR PRELIMINRY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This Writ petition is filed by the Judgment Debtor in Execution Petition No.206 of 2019 on the file of the Principal Senior Civil Judge and JMFC., Gubbi, challenging the order dated 09^th February, 2021, issuing the attachment warrant to the Block Education Officer, Gubbi for attaching the salary of the Judgment Debtor/petitioner herein.

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The relevant facts for adjudication of this writ petition are that the petitioner herein is a Government Servant. Respondent is the father-in-law of the petitioner. It is further stated that, the petitioner is having two children namely Miss. Madhushree and Miss. Chaithra. It is further stated in the writ petition that, the wife of the petitioner herein met with an accident and died on 23^rd September, 2012. After the demise of

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their mother, the children were allowed to reside with their maternal grandfather/respondent herein as the petitioner was Government servant and on account of nature of his work, he was not able to take care of the children. It is also stated in the writ petition that, the respondent herein has filed G & WC No.17 of 2015 on the file of Senior Civil Judge, Gubbi under Section 10 read with Section 7 of the Guardian and wards Act, 1980, seeking to appoint him as the guardian of minor children and their property. The said suit came to be allowed by the trial Court on 10^th July, 2019 and as such, the respondent herein has

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been appointed as the guardian of minor children and their property. However, while passing the said order, an observation has been made by the trial Court, directing the respondent herein, not to alienate the petition schedule property in any manner without the permission of the Court. The said order dated 10^th July, 2019 was challenged before this Court by the petitioner herein in Miscellaneous First Appeal No.6667 of 2019 and this Court, by order dated 30^th January, 2020 (Annexure-C), granted an interim stay of the impugned order, i.e. order dated 10^th July, 2019 in G & WC No.17 of 2015, until further orders. In

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the meanwhile, the respondent herein has filed Execution case No.206 of 2019 before the trial Court. In the said petition, the respondent herein has filed an application IA.3 of 2021 under Section 151 of the Civil Procedure Code, seeking direction to the Block Education Officer, Gubbi, who is the drawing officer, to attach the salary of the Judgment Debtor/petitioner herein towards the arrears of maintenance of minor children. In the said Execution Petition, the trial Court, by order dated 09^th February, 2021, allowed IA.3 of 2021 and directed the Block Education Officer, Gubbi for attaching the salary of the Judgment Debtor/petitioner herein. Feeling aggrieved by the same, the petitioner herein has presented this writ petition.

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I have heard Sri. A.V. Gangadharappa, learned counsel appearing for the petitioner. Notice to respondent has been held sufficient.

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Sri. A.V. Gangadharappa, learned counsel appearing for the petitioner contended that, firstly, the application was filed on 09^th February, 2021, seeking attachment of the Salary of the petitioner. However, during the COVID-19 pandemic, the said

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application came to be allowed on very same day of filing it, without granting an opportunity of hearing to the petitioner herein. The next limb of argument advanced by Sri. A.V. Gangadharappa is that, perusal of the operative portion of the order dated 10^th July, 2019 in G & WC No.17 of 2015, would indicate that the trial Court has not passed any order relating to the payment of the maintenance. Therefore, the trial Court ought not to have accepted the IA.3 of 2021 filed by the respondent herein. Accordingly, he sought for interference of this Court.

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In the light of the submission made by learned counsel appearing for the petitioner, I have carefully considered the order passed by the trial Court on 10^th July, 2019, wherein, the operative portion read as under:

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“The petition filed under Section 10 read with 7 of Gaurdian and Wards Act, 1980 is allowed.

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The petitioner is appointed as a guardian of the minors M.S.Madhushree @ Madhu and M.S.Chaithra and to their properties i.e., petition schedule properties.

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The petitioner shall not alienate the petition schedule properties in any manner without the permission of the court.

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The respondent is having right to visit the minor children for looking after their welfare.”

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It is also not in dispute that, the said order has been stayed before this Court in Miscellaneous First Appeal No.6667 of 2019 on 30^th January, 2020 (Annexure-C). Taking into account these factual undisputed facts, I have carefully considered the order sheet maintained by the Executing Court, which clearly reveals the fact that the Decree Holder/respondent herein has filed IA.3 of 2021 under Section 151 of the Civil Procedure Code on 09^th February, 2021 and there was no representation on behalf of the petitioner herein before the Executing Court. It is also not in dispute that during the said period, because of the COVID-19 Pandemic, the standard operating procedures has been issued by this Court and the trial Court. During the said period without granting an opportunity to the Judgment Debtor/petitioner herein, the trial Court has passed the impugned order which requires to be interfered with in this writ petition. Though, I have accepted the submission of Sri. A.V.

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Gangadharappa, learned counsel appearing for the petitioner that no order has been made in G & WC proceedings with regard to the payment of maintenance, however, I am of the view that, despite the said fact, the trial Court ought to have given a fair hearing before passing the drastic order of attaching the salary of the petitioner herein. In that view of the matter, without expressing any opinion on the merits of the case, I am of the view that the order dated 09^th February, 2021 passed by the trial Court is liable to be set aside, accordingly set aside. Resultantly, writ petition is allowed.

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The trial Court shall consider IA.3 of 2021 afresh after affording reasonable opportunity to both the sides and pass appropriate orders in accordance with law.

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Sd/JUDGE

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ARK

M B Shivagangappa v. H Nageshaiah

Case brief

What is this about?

What did the court decide?

M B Shivagangappa v. H Nageshaiah

Case brief

What is this about?

What did the court decide?

What the court decided

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