Allowed

The Assistant Chief Engineer v. C.A. Ikram Ull Haq Atif

Karnataka HC2 Jan 2024/6161/2023

Case brief

AI extract

What is this about?

This writ petition challenged an execution order directing attachment of movables without considering the petitioner's objections and rival claim memo. The High Court held the order arbitrary and liable to be set aside.

What did the court decide?

Petition allowed, impugned order dated 10.01.2023 set aside, matter remitted to Executing Court to reconsider claims within three months.

The Assistant Chief Engineer Vs C.A. Ikram Ull… — Execution and Attachment | Karnataka HC (2024)

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NC: 2024:KHC:18 WP No. 6161 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 6161 OF 2023 (GM-CPC)

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BETWEEN:

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THE ASSISTANT CHIEF ENGINEER, OFFICE OF THE DEPUTY CHIEF ENGINEER (C), DEPARTMENT OF RAILWAYS, SOUTH WESTERN RAILWAY, OPP. LIC BUILDING, K.R.S. ROAD, YADAVAGIRI, MYSORE - 570 020.

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…PETITIONER

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(BY SRI. KUMAR M.N, ADVOCATE)

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AND:

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Digitally signed by SUCHITRA M J Location: High Court of Karnataka

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C.A.IKRAM ULL HAQ ATIF, SON OF LATE ABID NAYEE MULHAQ C.H., AGED ABOUT 42 YEARS, RESIDING AT NO. A/29, NEW NO. 817, OPPOSITE TO FOREST OFFICE, A.P. MOHALLA, CHAMARAJANAGAR - 571 313.

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THE ASSISTANT COMMISSIONER AND SPECIAL LAND ACQUISITION OFFICER, OFFICE BEHIND CIVIL COURT, M.M.HILLS ROAD, KOLLEGAL - 571 440.

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…RESPONDENTS

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(BY SRI. P. MAHESHA, ADVOCATE FOR R1; SMT. JYOTI M. MARADI, HCGP FOR R2)

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NC: 2024:KHC:18 WP No. 6161 of 2023

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, 1950 PRAYING TO SETTING ASIDE THE ORDER DATED 10.01.2023 PASSED IN EXECUTION PETITION NO.50/2020 BY THE HONBLE ADDL. SENIOR CIVIL JUDGE AND JMFC CHAMARAJANAGARA AT CHAMARAJANAGARA, VIDE ANNX-E AND ETC.,

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

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ORDER

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This petition is directed against the impugned order dated 10.01.2023 passed in Execution Petition No.50/2020 by the Additional Senior Civil Judge and J.M.F.C. Chamarajanagara at Chamarajanagara, whereby the Executing Court directed issuance of attachment warrant as against the petitionerJudgment debtor.

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Heard learned counsel for the petitioner-judgment

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debtor and learned counsel for the respondents-decree holders.

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The material on record discloses that on 27.04.2019, the Reference Court in LAC No.22/2015 passed an award in favour of the respondent-decree holders, which was put into execution in the instant execution proceeding in which

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NC: 2024:KHC:18 WP No. 6161 of 2023

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the respondent-decree holders sought for a sum of Rs.16,89,086/-. The said execution proceedings are being contested by the petitioner-judgment debtor.

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During the pendency of the execution of the documents, respondent-decree holders filed a memo of calculation dated 28.02.2022, claiming a sum of Rs.21,07,666/from the petitioner-judgment debtor. The amount claimed by the respondent-decree holders as well as the memo of calculations submitted by them was contested and opposed by petitioner-judgment debtor, who filed his statement of objections as well as separate memo of calculations before the Trial Court.

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It is the grievance of the petitioner-judgment debtor that despite filing objection to the memo of calculation filed by the respondent-decree holders and the separate memo filed by the petitioner-judgment debtor, the Executing Court has proceeded to summarily issue attachment warrant of movables without considering the rival claims as regards the amounts claimed by the respondent-decree holders nor rendering any finding in this regard and as such, the impugned

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NC: 2024:KHC:18 WP No. 6161 of 2023

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order passed by the Executing Court is a non-speaking, cryptic and laconic order without any application of mind and without taking into consideration the objections and the memo of calculation filed by the petitioner-judgment debtor and as such, the impugned order deserves to be set aside.

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Per contra learned counsel for the respondentdecree holders submits that the memo of calculation filed by respondent-decree holders was correct and proper and Trial Court was fully justified in directing issuance of attachment warrant of the movable of petitioner by passing the impugned order which does not warrant any interference by this Court in the present petition.

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As rightly contended by the learned counsel for the petitioner, the material on record discloses that the petitionerjudgment debtor has not only filed detailed statement of objections on 30.09.2022 to the Execution Petition but has also filed detailed memo of calculation contesting the claim of the respondent-decree holder. Under these circumstances, the impugned order passed by the Executing Court directing the attachment of movables without considering the objections of

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5 - NC: 2024:KHC:18 WP No. 6161 of 2023

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the petitioner-judgment debtor as well as its memo of calculations, is clearly an error apparent on face of the record resulting in miscarriage of justice and warranting interference by this Court in the present petition. I am therefore of the considered opinion that the impugned order being arbitrary, illegal and opposed to principles of natural justice, deserves to be set aside. Hence, I pass the following:

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ORDER

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i. The petition is hereby allowed.

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ii. Impugned order dated 10.01.2023 is hereby set aside.

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iii. The matter is remitted back to the Executing Court for reconsideration a fresh in accordance with law.

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iv. The Executing Court is directed to consider the rival claims of both sides as well as the respective memo of calculations filed by the both parties and proceed to pass appropriate order in accordance with law within a period of

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NC: 2024:KHC:18 WP No. 6161 of 2023

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three months from the date of receipt of copy of this order.

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v. It is needless to state that till the Trial

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Court passes the appropriate order as stated supra, the Trial Court shall not pass any precipitate/coercive order against the petitioner-judgment debtor. All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.

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Sd/JUDGE

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AT List No.: 1 Sl No.: 16 CT: BHK

The Assistant Chief Engineer v. C.A. Ikram Ull Haq Atif

Case brief

What is this about?

What did the court decide?

The Assistant Chief Engineer v. C.A. Ikram Ull Haq Atif

Case brief

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What did the court decide?

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