Dismissed

The Divisional Manager v. Sri.G.v.Manjunath

Karnataka HC19 Feb 2024WP/11820/2018

Case brief

AI extract

What is this about?

Insurers challenged an execution order directing them to renew their agent's licence and authorising attachment of movables for non-compliance with a decree upheld through appeal and second appeal. The High Court held the executing court cannot re-try the decree's merits under Section 47 CPC, and the decree was neither without jurisdiction nor a nullity.

What the court decided

AI extract

The Divisional Manager Vs Sri.G.v.Manjunath — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:7040 WP No. 11820 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA WRIT PETITION NO. 11820 OF 2018 (GM-CPC)

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BETWEEN:

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THE DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, KESHAVAPURA, HUBLI.

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THE MANAGER ORIENTAL INSURANCE COMPANY LIMITED, TILUVALLI COMPLEX, P. B. ROAD, DAVANGERE - 2.

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REPRESENTED BY ITS REGIONAL MANAGER, THE ORIENTAL INSURANCE CO. LIMITED, REGIONAL OFFICE, LEO SHOPPING COMPLEX, NO. 44/45, RESIDENCY ROAD, BANGALORE - 560 025.

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…PETITIONERS

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(BY SRI. P. B. RAJU, ADVOCATE)

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Digitally signed by PAVITHRA N Location: high court of karnataka

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AND:

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SRI.G.V.MANJUNATH, AGED ABOUT 47 YEARS, S/O. LATE. SRI. G. S. VENKATASWAMY, AGENT, ORIENTAL INSURANCE CO. LTD, I MAIN, 4^TH CROSS, VINOBANAGAR, DAVANAGERE - 577 001.

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…RESPONDENT

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(BY SRI. PRASANNA B. R., ADVOCATE)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN EXECUTION PETITION NO.132/2013, ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, DAVANGERE AND QUASH THE ORDERS DATED 25.01.2018, PASSED IN EXECUTION PETITION NO.132/2013,

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NC: 2024:KHC:7040 WP No. 11820 of 2018

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PENDING ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AT DAVANGERE, WHICH IS PRODUCED AT ANNEXURE-E.

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

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ORDER

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The defendants in O.S.No.340/2007 on the file of the. Civil Judge (Jr.Dn), Davanagere is seeking grant of writ of certiorari to quash the order dated 25.01.2018 allowing the execution petition under Order XXI Rule 11 of CPC directing the petitioners to renew the agency of the respondent within 15 days, failing which for attachment of movables belonging to the petitioners and accordingly, issuing the attachment warrant.

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Heard Sri.P.B.Raju, learned counsel for the petitioners and Sri.Prasanna.B.R, learned counsel for respondent. Perused the materials on record.

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Learned counsel for the petitioners submitted that the respondent as plaintiff filed the suit in O.S.No.340/2007 seeking declaration that he is entitled for renewal of his license and for payment of arrears of agency fees. The defendants have taken a defence that the plaintiff was not having required educational qualification and therefore, he cannot act as an agent and under such circumstances, he is not entitled for a

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3 - NC: 2024:KHC:7040 WP No. 11820 of 2018

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decree as prayed for. Ignoring all those facts, the trial Court decreed the suit. The plaintiff in the execution case 132/2013 is seeking execution of the decree i.e., renewal of his license. However, by the time execution case was filed the monetary benefit for which the respondent was entitled to under the decree was already paid. Since renewal of the license of the plaintiff to act as an agent without required educational qualification would amount to violation of the legal provisions, such directions could not have been passed by the trial Court. In other words the trial Court lacks jurisdiction to pass such a decree for declaration when the plaintiff was not entitled for renewal of his license.

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Learned counsel submitted that as per Section 47 of CPC this question can be determination by the executing Court regarding entitlement of the plaintiff for such a relief. But executing Court has not considered any of those facts but proceeded to issue warrant for attachment of movables. The trial Court has not specified what is the quantum value of the movables that could be attached to satisfy the decree. Under such circumstances, great injustice will be caused to the petitioners if the impugned order is not quashed.

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NC: 2024:KHC:7040 WP No. 11820 of 2018

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Learned counsel for the petitioners has also submitted that in view of Order 21 Rule 32 of CPC, the executing Court could have proceeded to pass the order for issuance of attachment warrant only if there was willful disobedience of the decree. Even if the petitioners are wiling to obey the decree, there is legal bar and therefore, he cannot satisfy the decree and under such circumstances, the executing Court should have considered the said contention and should have dismissed the execution case. Hence, he prays for a direction to the executing Court to consider the contentions of the petitioners regarding lack of jurisdiction of the Court while passing the decree and to dismiss the execution case.

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Per contra learned counsel for respondent opposing the petition submitted that all the above defence now urged were raised before the trial Court when the suit was pending. After considering the rival contentions, the trial Court decreed the suit. The said decree was challenged by the petitioners by filing R.A.No.26/2013. When the appeal was dismissed he had preferred RSA No.647/2018 before this Court. The said appeal was also came to be dismissed. Inspite of that, the petitioners have not renewed the license nor satisfied the decree passed

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NC: 2024:KHC:7040 WP No. 11820 of 2018

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by the trial Court. Therefore, execution case No.132/2013 was filed before the Court. Since there was no compliance of the decree the trial Court rightly issued the warrant for attachment of movables. There was no illegality or perversity in the order.

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Learned counsel submits that Section 47 of CPC cannot be invoked to consider the validity of the decree passed by the trial Court. Hence, he prays for dismissal of the writ petition.

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The admitted facts of the case are that the plaintiff filed the suit for declaration of his right and also for mandatory injunction. The defendants have raised the objection regarding lack of educational qualification required to act as an agent and contended that the plaintiff without such qualification is not entitled either for declaration of his right or for mandatory injunction. After contest the suit came to be decreed. It is not in dispute that the defendants have preferred R.A.No.26/2013 and R.S.A.No.647/2018. Both the appeals were came to be dismissed. As a result the decree passed by the trial Court has reached finality. Since the decree for mandatory injunction to renew the license of plaintiff as agent was not honoured, the

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NC: 2024:KHC:7040 WP No. 11820 of 2018

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execution case No.132/2013 was came to be filed. Now the executing Court issued the warrant for attachment of the movables belonging to the judgment debtor, if he fails to satisfy the decree within 15 days. Admittedly, the said 15 days have already lapsed.

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Now it is the contention of the petitioners that since there is legal bar the judgment debtor cannot renew the license of the respondent and the same is tobe considered by the trial Court either under Order 21 Rule 32 of CPC or under Section 47 of CPC.

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Section 47 of CPC refers to the questions to be determined by the Court executing the decree relating to the execution, discharge or satisfaction of the decree. But it does not authorize the executing Court to hold a denovo trial to consider the correctness or otherwise of the decree passed by the civil Court. Rule 32 with regard to Order 21 of CPC even though refers to a decree for injunction and refers to willful disobedience, the same cannot be made applicable to the present case.

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NC: 2024:KHC:7040 WP No. 11820 of 2018

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It is the specific contention taken by the petitioners that since the respondent was not having the required educational qualification there is bar for his appointment as an agent and so his license cannot be renewed further. But such contention was already raised before the trial Court in the suit and after taking into consideration such defence, the trial Court decreed the suit directing the defendants to renew the license. Even though the decree was challenged in the regular appeal and in regular second appeal, the defendants have not succeeded in getting the decree set aside. Under such circumstances, now it is not open to the petitioners to contend that the executing Court should once again go in to merits of the case to consider as to whether the decree passed by the trial Court was right or not.

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The contention of the learned counsel for the petitioners that the decree passed by the trial Court is one without jurisdiction or it is a nullity cannot be accepted. It is not a case of lack of either pecuniary or territorial jurisdiction of the trial Court, but the question raised by the petitioners is with regard to his defence taken before the trial Court, as to why the plaintiff is not entitled for such relief, which was not

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NC: 2024:KHC:7040 WP No. 11820 of 2018

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accepted by the trial Court. Under such circumstances, the decree which is based on judgment with reasons cannot be called as either without jurisdiction or that decree as a nullity.

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Regarding the contention taken by the learned counsel for the petitioners that the trial Court has passed an order issuing the warrant for attachment of the movables without specifying the extent to which the attachment should be done, since the mandatory injunction issued under the decree to renew the agency of the plaintiff is not honoured, the attachment of movables will be to that extent till it compels the judgment debtor to obey the decree or satisfy the same. Hence, I am of the opinion that there are no merits in the petition.

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Accordingly, I proceed to pass the following:

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ORDER

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The writ petition is dismissed .

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Sd/JUDGE

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NS CT:TSM List No.: 1 Sl No.: 4

The Divisional Manager v. Sri.G.v.Manjunath

Case brief

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What the court decided

The Divisional Manager v. Sri.G.v.Manjunath

Case brief

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