Allowed

Ramesha v. Kalegowda

Karnataka HC15 Sept 2023WP/48736/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka, in a writ petition under Article 227, quashed an order detaining judgment debtors in civil prison for 30 days. Relying on an affidavit undertaking not to interfere with possession, the court set aside the detention order, directing the petitioners to file a similar undertaking before the executing court within four weeks.

What did the court decide?

The impugned order of detention dated 16.09.2017 is set aside. Petitioners directed to file affidavit undertaking before Executing Court within four weeks.

Ramesha Vs Kalegowda — Execution and Attachment | Karnataka HC (2023)

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NC: 2023:KHC:33622 WP No.48736 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF SEPTEMBER, 2023 BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.48736 OF 2017 (GM-CPC)

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BETWEEN:

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RAMESHA S/O LATE KRISHNEGOWDA AGED ABOUT 43 YEARS.

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Digitally signed by RUPA V

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Location: HIGH COURT OF KARNATAKA

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SURESHA S/O LATE KRISHNEGOWDA AGED ABOUT 38 YEARS.

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BOTH ARE R/AT HALE MIRLE VILLAGE MIRLE HOBLI, K.R. NAGAR TALUK-571603.

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(BY SRI. YOGISH, ADV.,)

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…PETITIONERS

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AND:

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KALEGOWDA S/O THAMMANNEGOWDA AGED ABOUT 58 YEARS R/AT HALE MIRLE VILLAGE MIRLE HOBLI, K.R. NAGAR TALUK-571603.

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…RESPONDENT

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(BY SRI. T.I. ABDULLA, ADV.,)

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THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ORDER VIDE ANNEXURE-J DTD:16.9.2017 IN EX NO.106/2014 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, K.R. NAGAR. GRANT AN INTERIM ORDER TO STAY THE OPERATION AND IMPLEMENTATION OF ORDER VIDE ANNEXURE-J DTD:16.9.2017 IN EX NO.106/2014 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, K.R. NAGAR.

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NC: 2023:KHC:33622 WP No.48736 of 2017

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is field under Article 227 of the Constitution of India seeking prayer to quash the order dated 16.09.2017 passed in Ex. No.106/2014 on the file of the Prl. Civil Judge and JMFC, K.R.Nagar, wherein the Executing Court has passed an order of detention of judgment debtors 1 to 3 in civil prison for a period of 30 days.

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Heard Sri.Yogish, learned counsel appearing for the petitioners and Sri.T.I.Abdulla, learned counsel appearing for the respondent and perused the material available on record.

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The petitioners are the judgment debtors and are assailing the order of the Execution Court wherein the Execution Court, in exercise of power contemplated under Order XXI Rule 32 of the Code of Civil Procedure, 1908,

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3 - NC: 2023:KHC:33622 WP No.48736 of 2017

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ordered detention of judgment debtor Nos.1 to 3 in civil prison for a period of 30 days. It is not in dispute that the respondent has filed O.S.No.174/2009 seeking prayer for a decree of permanent injunction against the defendants and the said suit came to be decreed in favour of the respondent herein. The respondent has filed execution petition No.106/2014 to execute the decree. In the said proceedings, the petitioners have entered appearance and filed objections and contested the execution proceedings. The Execution Court, while passing the impugned order, has recorded a categorical finding that the judgment debtors interfered with the possession of the suit schedule property by assaulting the decree holder and violating the mandate of the decree and proceeded to pass an order for detention of the judgment debtors for a period of 30 days in civil prison.

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The petitioner No.2 in the present petition has filed an affidavit pursuant to the direction of this Court dated 14.11.2017. The order dated 14.11.2017 reads as under:

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NC: 2023:KHC:33622 WP No.48736 of 2017

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"Sri. Virupakshaiah P.H. learned counsel for the petitioners submits that though the judgment debtors, present petitioners, were not informed the Court proceedings by their counsel, they were not present before Court. It was a mistake on the part of their counsel. Hence, the parties should not suffer. Learned counsel further submits on instructions that the present petitioners, who were the judgment debtors in OS No.174/2009, will obey the judgment and decree and will never disobey the order of the Court. To that effect, they will file an affidavit before this Court.

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The said submission is placed on record. Issue emergent notice to the respondent. Stay the operation of the impugned order till the next date of hearing.

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On bare perusal of the affidavit of the petitioner No.2

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/ judgment debtor No.3, it is evident that he has categorically undertook that they will not interfere with the peaceful possession of the schedule property and they will obey the judgment and decree in O.S.No.174/2009.

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NC: 2023:KHC:33622 WP No.48736 of 2017

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Learned counsel Sri.T.I.Abdulla appearing for the respondent fairly submits that after filing of the affidavit by the petitioners before this Court, they have not interfered with the peaceful possession of the suit schedule property and if similar affidavit undertaking is filed in the execution proceedings, the respondent - decree holder has no objection to quash the impugned order. The said submission is placed on record.

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It is not in dispute that after filing of an affidavit undertaking by the petitioners, they have not violated the judgment and decree. The ends of justice would be met if the petitioners are permitted to file similar affidavit undertaking before the Executing Court stating that they would obey the judgment and decree passed in O.S.No.174/2009. The petitioners shall file the affidavit undertaking before the Executing Court within a period of four weeks from the date of receipt of certified copy of this order.

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NC: 2023:KHC:33622 WP No.48736 of 2017

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It is made clear that if the petitioners fail to adhere to the undertaking given before this Court, the respondent - plaintiffs are at liberty to proceed against the petitioners in accordance with law.

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For the aforementioned reasons, the impugned order dated 16.09.2017 passed by the Prl. Civil Judge and JMFC, K.R.Nagar in Ex.No.106/2014 is set aside.

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Accordingly, the writ petition is disposed of.

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Sd/JUDGE

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Ramesha v. Kalegowda

Case brief

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Ramesha v. Kalegowda

Case brief

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