Dismissed

Rajansa S/O Shrikanth Patil v. Mohansa @ Mohan S/O Shrikanth Patil

Karnataka HC13 Sept 2024WP/116958/2019

Case brief

AI extract

What is this about?

Judgment debtors challenged an executing court's directions in E.P.No.23/2018 to record the decree holder's name in revenue records and to deposit balance interest amounts under a compromise decree. The court found the decree holder had paid all amounts with tendered interest, no default existed, and dismissed the writ petition.

What the court decided

AI extract

Rajansa S/O Shrikanth Patil Vs Mohansa @ Mohan… — Execution and Attachment | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:13122 WP No. 116958 of 2019

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13^TH DAY OF SEPTEMBER, 2024 BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH WRIT PETITION NO. 116958 OF 2019 (GM-CPC)

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BETWEEN:

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RAJANSA S/O. SHRIKANTH PATIL, AGED ABOUT 71 YEARS, OCC: BUSINESS, R/O: HOUSE NO.420, "SRI SHAMBHAVI", 4^TH A MAIN, 4^TH BLOCK, 1^ST STAGE, HBR LAYOUT, BENGALURU-560043.

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SMT. VIMALA @ BABY W/O. BALACHANDRA PAWAR, AGED 67 YEARS, OCC: HOUSEHOLD WORK, R/O: C/O: PRASHANTH PAWAR, HOUSE NO.17, "YASH CLASSIC ENCLAVE", 2^ND CROSS, HENNUR MAIN ROAD, BENGALURU-560043.

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...PETITIONERS

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(BY SRI. S.B. HEBBALLI, ADVOCATE)

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AND:

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GIRIJA A BYAHATTI

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Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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MOHANSA @ MOHAN S/O. SHRIKANTH PATIL, AGED 68 YEARS, OCC: BUSINESS, R/O: GUDUR, TALUK: HUNAGUND, DISTRICT: BAGALKOTE-587101.

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(BY SRI. C.S. SHETTAR, ADV. FOR C/R)

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…RESPONDENT

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI, QUASHING THE IMPUGNED ORDER DATED 29.11.2019 PASSED IN E.P.NO.23/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HUNAGUND, A COPY OF WHICH IS PRODUCED HEREIN AS PER ANNEXURE-G, IN SO FAR AS IT RELATES TO DIRECTIONS TO THE REVENUE AUTHORITIES TO ENTER THE NAME OF THE DECREE HOLDER IN THE REVENUE RECORDS AS PER THE COMPROMISE DECREE AND FURTHER DIRECTION DIRECTING THE DECREE HOLDER TO DEPOSIT THE BALANCE AMOUNT WITH INTEREST IF ANY TO JDRS AS PER THE COMPROMISE DECREE AND ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04.09.2024, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CAV ORDER

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(PER: HON’BLE MR. JUSTICE H.P. SANDESH)

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In the present petition, prayer is sought to issue writ in the nature of certiorari quashing the impugned order dated 29.11.2019 passed in E.P.No.23/2018 on the file of the Senior Civil Judge and JMFC, Hunagund, as per Annexure G, insofar as it relates to directions to the Revenue Authorities to enter the name of the Decree Holder in the revenue records as per the compromise decree and further direction directing the decree holder to deposit the balance amount with interest, if any, to JDRs as per the compromise decree and any other appropriate writ, order or direction as deemed fit.

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The factual matrix of the case while seeking the said relief is that;

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2.1. There was a compromise decree in O.S.No.62/2007 as per the compromise on

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31.10.2008. Subsequently, Execution Petition in E.P.No.19/2014 is filed by the respondent/plaintiff on 26.06.2014 and objection to the said Execution Petition is also filed. Copy of the Execution Petition is produced at Annexure-B and so also objections

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as per Annexure-C. The Trial Court dismissed the Execution Petition in terms of Annexure-D and while dismissing, it is held that the decree holder is not acted in terms of the decree and hence the decree cannot be implemented.

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2.2. Another Execution Petition is filed by the decree

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holder in E.P.No.23/2018 for the execution of the very same compromise decree on 23.04.2018 and objections also filed to the same as per Annexures ‘E’ and ‘F’. The learned Civil Judge and JMFC, Hunagund, after hearing the parties, dismissed E.P.No.23/2018, but issued directions to the revenue authority to enter the name of decree holder/respondent

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in the revenue records as per compromise decree and also directed the respondent to deposit arrears of amount with interest to be paid to the petitioners.

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2.3. Being aggrieved by the said order of direction to the revenue authority and payment of amount with interest, the present writ petition is filed, contending that the impugned direction issued by the Executing Court is liable to be quashed.

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It is contended by the petitioners’ counsel that the impugned direction is outside the jurisdiction of the Civil Courts as the power to issue direction usurps the power of revenue authority prescribed under the provisions of the Karnataka Land Revenue Act for clarification of entries. It is also contended that, the Executing Court failed to take note that Execution Petition is liable to be dismissed and erred in issuing such directions and failed to take note that the

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compromise decree cannot be implemented. It is also contended that the impugned direction is also vague in nature and against Clause 10 in the compromise decree which stipulates that, if there is any default by either of the parties, the parties to the compromise decree are at liberty to work out their remedy as per law. Hence it is contended that the Executing Court ought not to have entertained the Execution Petition, once the earlier Execution Petition was dismissed and hence the order requires to be quashed.

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Per contra, counsel appearing for the respondent in his arguments would vehemently contend that;

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4.1. It is not in dispute that the matter was compromised between the parties. It is contended that there was delay in making payment of subsequent installments in terms of the compromise.

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4.2. Insofar as payment to petitioner No.1 is concerned, total amount payable is

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Rs.26,00,000/-, out of that, at the time of compromise itself an amount of Rs.5,00,000/was paid and subsequently the delay in making payment is only for 12 days in first payment, 27 days in second payment, 10 days in third payment and one month 7 days in fourth payment, but in total Rs.26,00,000/- was paid as per Clause 3 of the compromise. It is also contended that, earlier Execution Petition was dismissed only on the ground that the interest was not paid. The counsel would contend that the periodical interest for the delayed days also calculated and it comes to Rs.23,360/- and the same was sent by way of Demand Draft and the same was refused. There is a specific clause in the compromise decree that, in case of delay entitled for interest at 18% p.a. and accordingly interest at 18% p.a. is calculated and paid.

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4.3. In respect of petitioner No.2 is concerned, total

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amount payable is Rs.10,00,000/-, out of that,

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at the time of compromise itself an amount of Rs.2,00,000/- was paid and subsequently, there was delay of 12 days in first payment, delay of 27 days in second payment, 10 days in third payment and delay of 01 month 07 days in fourth payment, but entire payment of Rs.10,00,000/- was paid as agreed in terms Clause 6 of the compromise decree. For the delayed period is concerned also, interest is calculated and sent the amount of Rs.8,600/and the same was refused.

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4.4. The counsel also would contend that, the said

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particulars are also as per Exs.P18 to P23. The petitioner No.1 was examined as DW1 in the Execution Petition No.19/2014 and he admitted that the entire amount was paid in terms of the compromise decree in respect of both defendants No.1 and 2. The counsel also produced copy of the deposition of DW1, wherein he categorically admitted with regard

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to the payment of the amount and he did not return the said amount received.

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4.5. The counsel also brought to the notice of this Court that, earlier Execution Petition No.19/2014 came to be dismissed on the ground that this respondent not deposited the interest part and not on merits. Hence the same has not been challenged.

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4.6. The counsel also would contend that, while filing the second Execution Petition No.23/2018, the respondent had deposited interest amount of Rs.23,350/- and Rs.8,600/- payable to petitioners No.1 and 2 respectively through Demand Drafts dated 26.08.2018. Since the petitioners failed to receive and encash the said Demand Drafts in time, the Executing Court by order dated 17.01.2019 returned the same as the validity of the Demand Drafts had lapsed. However, the respondent unequivocally undertook to pay the interest part.

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4.7. When such being the case, the question of quashing the direction given by the Trial Court in the Execution Petition No.23/2018 does not arise and the order is in conformity with the compromise decree passed by the Trial Court in Execution Petition No.19/2014, which is also the part of Annexure-A in the writ petition.

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In reply to this argument, the counsel appearing for the petitioners brought to the notice of this Court Clause No.10 of the compromise decree, wherein there is a stipulation that, if the amount is not paid and not acted upon in terms of the compromise, the petitioners can refund that amount and workout their remedy under the law. The counsel also would submit that, Clause No.12 also not adhered and hence such a direction ought not to have been given by the Trial Court even though Execution Petition is dismissed.

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Having heard the petitioners’ counsel and also the

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counsel appearing for the respondent, this Court has

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to examine;

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“Whether the Executing Court committed an error in giving direction to the Revenue Authority and directing the decree holder to pay the amount with interest?

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Now let me examine the material before the Court. There is no dispute with regard to the compromise entered into between the parties and also decree was drawn in terms of Annexure-A. It is also important to note that, in terms of the compromise, parties have settled the matter and defendants i.e., petitioners herein have agreed to leave their rights in respect of the suit schedule properties subject to payment of Rs.26,00,000/- to defendant No.2, who is the petitioner No.1 herein and Rs.10,00,000/- the defendant No.3, who is the petitioner No.2 herein, in terms of Clause No.3 and 6 respectively. An amount of Rs.5,00,000/- and Rs.2,00,000/- is paid to defendants No.2 and 3 respectively at the time of

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compromise and they had acknowledged the same.

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In terms of the compromise, the remaining amount of Rs.21,00,000/- and Rs.8,00,000/- to defendants No.2 and 3 respectively is also fixed for payment in four installments and at that time there is delay as mentioned earlier for payment remaining installments. In term of Clause 3 of the compromise decree, it is very clear that, if the amount has not been paid as per the fixed date, it carries interest at the rate of interest at 18% p.a. Clause No.4 is also very clear that, after having paid the entire amount, the documents which are standing in the name of the defendants to be removed and the name of the plaintiff has to be entered in the revenue records.

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This Court also would like to refer Clause 10 of the compromise decree. Clause 10 is also very clear that, if the said amounts are reached to the defendants, they have to give up their rights and if that amount has not been paid, the amount what

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they have received to be repaid and action can be taken in terms of law. In terms of that clause No.12, there is a recital that, in view of giving up the rights of the defendants, the plaintiff also agreed to pay an additional amount of Rs.5,00,000/- to defendant No.2 and Rs.2,00,000/- to defendant No.3 and the same is payable in two installments at Rs.2,50,000/and Rs.1,00,000/- respectively in 2012 Deepavali and remaining Rs.2,50,000/- and Rs.1,00,000/respectively in 2013 Deepavali 2013.

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Having considered Clause No.3 3 of the compromise decree, it is clear that the entire payment i.e., Rs.26,00,000/- and Rs.10,00,000/- is made, but there was delay. It is also not in dispute that the Execution Petition filed earlier was filed dismissed only on the ground that the decree holder has sought the relief of sending the judgment debtor to civil prison since he has not paid the interest. It is also not in dispute that second Execution Petition was

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filed along with Demand Draft to the tune of Rs.23,350/- and also Rs.8,600/- towards interest payable to the petitioners No.1 and 2 herein at the time of filing the second Execution Petition, since the first Execution Petition was dismissed only on the ground that the interest was not paid. The order of

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the Trial Court in subsequent Execution Petition No.23/2018 is very clear that the Demand Drafts validity had lapsed and hence returned the same to the decree holder. Hence it is clear that, in terms of the compromise decree, interest payable at 18% p.a.

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was tendered and the same was refused by the petitioners herein and hence he had deposited the said amount and filed the second Execution Petition. Hence there is no default on the part of the decree holder in performing his part of contract as stated in Clause No.3.

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It is also important to note that the petitioner No.2 also acknowledged the amount of Rs.10,00,000/- as

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stipulated in Clause No.6. It is also important to note that, in terms of Clause No.4 there is a specific averment that on payment of Rs.26,00,000/- the name of the defendant No.2 has to be removed and name of the decree holder has to be mentioned in

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the revenue records. Though the earlier counsel disputed having received the said amount, the counsel appearing for the respondent brought to notice of this Court the deposition recorded before the Trial Court in the first Execution Petition No.19/2014. The counsel appearing for the petitioners also brought to the notice of this Court paragraph No.6 of the deposition in examination-inchief, but in the cross-examination, DW1 who has been cross-examined is one of the petitioners, categorically admitted issuance of Exs.P18 to 23 receipts i.e., 6 in number, for having received the amount and acknowledged the payment. But only says that payment was made belatedly and also categorically admitted that there was recital in the

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compromise to pay interest at 18% p.a. DW1 has also categorically admitted that the amount which they have received has not been returned and also categorically admitted that the said amounts are received subsequent to the fixed period. He also categorically admitted that, after having received total amount of Rs.31,00,000/- he did not return the amount to the decree holder. Hence the very deposition is very clear that they have received the amount and also got the interest in respect of the said amount though contended that the said amount is in the bank. When such admission is given, it is very clear that, having received the amount, they did not return the same and even in terms of clause 10 also not initiated any action.

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It is also important to note that the compromise decree was not challenged and no action was taken for non-payment. But the material discloses that, when the earlier Execution Petition was dismissed in

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not sending the defendants for civil prison, since he has not paid the interest amount, but subsequently in Execution Petition No.23/2018, the interest was tendered by way of Demand Draft. When such being the case, the Trial Court also while dismissing the subsequent Execution Petition No.23/2018 categorically held that the question of sending the defendants to civil prison does not arise and judgment debtors cannot be punished for disobedience of the order of court and the same has been discussed in paragraphs No.13 and 14. It is also observed that, it is a peculiar case wherein the decree holder has obtained the decree but unable to execute it. The JDRs have received major portion of amount as per terms of the compromise decree, but not ready to give the land. It is also observed that, the compromise decree was not challenged and hence came to the conclusion that, under the circumstances, if the direction is issued to the revenue authority for entering the name of the Dhr

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as per the terms of compromise decree, it will serve the purpose.

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The reasoning assigned by the Trial Court do not suffer from any illegality and the very contention of the petitioner’s counsel that the Trial Court committed an error in directing the revenue authority to change the entries, cannot be accepted. It is very clear that, after the receipt of Rs.26,00,000/-, the name of the defendant No.2 has to be removed from

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the revenue records and the name of the decree holder has to be entered. Such a direction is given in terms of the Clause No.4 of the compromise decree. It is also not in dispute that, the amount has been paid in terms of Clause No.3 and Clause No.6 of the compromise decree. Hence such direction was given. When the attempt was made to pay the interest by sending, the same was refused and while filing the second Execution Petition, the amount was already paid by way of Demand Drafts before the Executing

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Court and as the validity of Demand Drafts was lapsed, a direction was given to pay the balance amount with interest and the interest part is also very meager amount of Rs.23,350/- and Rs.8,600/-. The delay in payment of installments is also not unreasonable delay. When such being the case, the Trial Court rightly came to the conclusion that in order to serve the purpose such direction may be given.

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The other contention of the petitioners that when the earlier Execution Petition was dismissed, ought not to have filed the second petition, also cannot be accepted. The earlier Execution Petition was dismissed only on the ground that the interest part was not paid. Admittedly there is a clause in respect of delayed period carries interest 18% p.a. and second petition is not barred, since second petition is filed along with interest part. When such direction is given, even though second Execution Petition is

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dismissed, the point for consideration framed is also very clear whether there was disobedience of compromise decree. In view of tendering of the amount, Trial Court in coming to the conclusion that there was disobedience to compromise decree rightly dismissed the Execution Petition and directions are given in terms of the compromise decree only.

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This being the material available on record, I do not find any error committed by the Trial Court in giving such direction and the same is also in terms of the compromise decree. The contention that the Trial Court cannot usurp the jurisdiction of revenue authorities also cannot be accepted and the said direction is also in terms of the compromise decree, since there was a compromise in terms of AnnexureA. In terms of the said decree only such direction was given and the same is not usurping the jurisdiction of the revenue authorities as contended by the petitioners. The Trial Court rightly directed

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the decree holder to deposit the balance amount with interest if any due payable by the JDRs as per the terms of the compromise.

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It is also important to note that, when the compromise decree was not challenged and not taken any recourse under Clause 10 and also the material is very clear that the amounts are received in terms of the compromise and the same was not returned and there is a clear admission for having received the said amount, hence Clause No.10 also cannot be invoked. On reading of Clause No.10, it is very clear that, when the amount was not paid in terms of the compromise, they can return the amount and enforce the same in accordance with law. But here is a case that, in terms of the compromise, amount has been received and acknowledged keeping the said amount in their bank account, the question of invoking Clause 10 also does not arise as contended by the petitioners.

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Hence I do not find any error committed by the Trial Court in giving such direction and there is no merit in the writ petition. Hence I answer the point in the

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negative.

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In view of the discussion made above, I pass the

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following:

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ORDER

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Writ petition is dismissed.

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Sd/(H.P. SANDESH) JUDGE

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gab CT-MCK List No.: 1 Sl No.: 93

Rajansa S/O Shrikanth Patil v. Mohansa @ Mohan S/O Shrikanth Patil

Case brief

What is this about?

What the court decided

Rajansa S/O Shrikanth Patil v. Mohansa @ Mohan S/O Shrikanth Patil

Case brief

What is this about?

What the court decided

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