Partly allowed

Dr a Rajasimha v. Sri R Shivabasavaswamy

Karnataka HC29 Oct 2024WP/6101/2019

Case brief

AI extract

What is this about?

Writ petition challenging an executing court order accepting a memo of calculation for arrears of rent and damages in a land eviction suit. The High Court found the executing court failed to deduct interest on amounts deposited by judgment debtors, reduced the payable balance, and allowed the petition partly.

What did the court decide?

Execution court directed to recover a reduced sum of Rs. 71,356/- instead of Rs. 2,61,549/- after accounting for un-deducted interest on deposits.

Dr a Rajasimha Vs Sri R Shivabasavaswamy — Execution and Attachment | Karnataka HC (2024)

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1 - NC: 2024:KHC:43751 WP No. 6101 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 6101 OF 2019 (GM-CPC)

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BETWEEN:

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DR. A. RAJASIMHA AGED ABOUT 64 YEARS, S/O LATE ASWATHANARAYANA RESIDING AT NO.933, 1^ST MAIN, LAKSHMIPURAM, MYSURU-570 004

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SRI. A. JAYASIMHA AGED ABOUT 61 YEAS S/O LATE ASWATHNARAYANA RESIDING AT NO.1119, RAILWAY STATION ROAD, CHAMARAJANAGAR-571313

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…PETITIONERS

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(BY SRI. Y.V.PRAKASH, ADVOCATE FOR SRI. Y.K NARAYANA SHARMA, ADVOCATE)

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AND:

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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SRI. R. SHIVABASAVASWAMY AGED ABOUT 66 YEARS, S/O LATE M.S. REVANNADEVARU

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SRI. R. CHIKKANNASWAMY AGED ABOUT 63 YEARS, S/O LATE M.S. REVANNADEVARU

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SRI R. SUNDARESHMURTHY AGED ABOUT 57 YEARS, S/O LATE M.S. REVANNADEVARU

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SRI R. SARVESHAMURTHY AGED ABOUT 55 YEARS, S/O LATE M.S. REVANNADEVARU

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NC: 2024:KHC:43751 WP No. 6101 of 2019

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SRI. NAGARAJAMURTHY AGED ABOUT 49 YEARS, S/O LATE M.S. REVANNADEVARU

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SRI R. SHASIDARA KUMAR AGED ABOUT 45 YEARS, S/O LATE M.S. REVANNADEVARU

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ALL ARE RESIDING AT NO.1194, BALAKRISHNA RAO ROAD, CHAMARAJAPURAM MOHALLA MYSURU-570005.

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…RESPONDENTS

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(BY SRI. D.R.RAJASHEKARAPPA, ADVOCATE FOR RESPONDENT NOS.1 TO 6)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 09.03.2018 AS PER ANNEXURE-E PASSED BY THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHAMARAJANAGAR IN EX.NO.10/12 AND ACCEPT THE MEMO OF CALCULATION FILED BY THE PETITIONERS IN THE SAID EX.10/2012.

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The judgment debtors in Ex.No.10/2012 pending on the file of the Additional Senior Civil Judge and JMFC, Chamarajanagar (henceforth referred to as 'executing Court') have filed this petition challenging an order dated 09.03.2018 by which, the executing Court accepted the memo of

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NC: 2024:KHC:43751 WP No. 6101 of 2019

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calculation filed by the decree holders and directed the judgment debtors to pay the balance amount.

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The parties shall henceforth be referred to as they were arrayed before the executing Court. The petitioners herein were the judgment debtors, while the respondents were the decree holders before the executing Court.

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A suit in O.S.No.117/2002 was filed by the decree holders before the Civil Judge (Sr.Dn.) and CJM, Chamarajanagar (henceforth referred to as 'Trial Court') for ejecting the judgment debtors and for recovery of arrears of rent.

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The Trial Court after considering the contentions, decreed the suit and directed the judgment debtors to handover the vacant possession of the suit property in "running condition" within a period of ninety days from the date of the order. Failing this, the decree holders were reserved liberty to take possession of the suit property in a running condition at the cost and consequence of judgment debtors. In so far as arrears of rent is concerned, the decree holders were entitled to recover rent of Rs.4,000/- per month with interest at the rate

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of 9% per annum from August 1992 till getting the possession of the suit property in running condition.

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The judgment and decree passed by the Trial Court was then challenged by the judgment debtors in R.A.No.59/2008 before the District Judge, Chamarajanagar (henceforth referred to as 'First Appellate Court'), which was disposed off on 22.04.2010. The First Appellate Court while disposing of the appeal held as follows:-

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"ORDER

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In the result, the appeal filed by appellantsdefendants in R.A.59/2008 arising out of judgment and decree in O.S.117/2002 (Old No.29/1995), is hereby dismissed confirming the judgment and decree passed by the learned Civil Judge.

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The appellants-defendants are hereby directed to handover the possession of the schedule property, with all machinery, furniture, accessories etc., as mentioned in the schedule in a good and running condition to the plaintiffs forthwith on or before 30.4.2010. Failing which, the plaintiffs are entitled to take possession of the schedule property with costs and at the risk of the defendants.

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It is made clear that if the schedule property including machinery, furniture etc., as mentioned in the

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5 - NC: 2024:KHC:43751 WP No. 6101 of 2019

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schedule is not delivered by the defendants in a good and running condition, the plaintiffs are entitled to take possession of schedule property as stands or as it is and recover the costs of the machinery, furniture and other accessories, incurred for running the theatre in good condition.

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The plaintiffs are also entitled to arrears of rent of Rs.1,28,000-00 at the rate of Rs.4,000-00 per month with interest at 9 per cent per annum from August 1992 till 31^st March 1995 and the defendants are liable to pay the same.

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The plaintiffs are also entitled to recover damages from the defendants at Rs.15,000-00 per month from 31^st March 1995 till delivery of possession of the schedule property in a good and running condition.

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The defendants are directed to pay the costs through-out.

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Accordingly, R.A.59/2008 stands disposed off.

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The appeal filed by the appellant-defendants in R.A.60/2008 arising out of judgment and decree in O.S.115/2002 (Old No.295/1994) is hereby dismissed, confirming the judgment and decree passed by the learned Civil Judge (Sr. Dn.), Chamarajanagara."

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The judgment debtors then challenged the judgment of the First Appellate Court in RSA No.1168/2010 which was dismissed on 20.06.2011. Later Special Leave

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NC: 2024:KHC:43751 WP No. 6101 of 2019

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Petition Nos.29954-29955/2011 was filed, which was dismissed on 18.11.2011. The decree holders therefore, initiated proceedings to execute the decree in Ex.No.10/2012 before the executing Court.

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The decree holders filed a memo of calculation to recover a sum of Rs.5,60,339/- from the judgment debtors. The memo was opposed by the judgment debtors, who contended that the decree holders were though offered the keys of the suit property on 12.07.2013, they refused to accept it and therefore, the judgment debtors were compelled to file W.P.No.718/2015. They contended that this Court directed the parties to appear before the executing Court where the judgment debtors were directed to handover the keys. Accordingly, keys of the suit property were handed over to the decree holders on 20.07.2015.

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The executing Court after noticing this contention,

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held that the judgment debtors had never handed over possession of the suit property till 20.07.2015 and therefore, they were bound to pay the arrears of rent as determined by the Trial Court and the First Appellate Court. It perused the

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memo of calculation filed by the decree holders and accepted the same and directed the judgment debtors to pay the balance.

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Being aggrieved by the said order, the judgment debtors are before this Court in this writ petition.

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The learned counsel for the judgment debtors contended that a sum of Rs.5,00,000/- was deposited by the judgment debtors in R.A.No.59/2008 and a sum of Rs.1,90,193/- was the interest that had accrued on the said amount, which was withdrawn by the decree holders. He contends that this amount was never factored while filing the memo of calculation. He contends that since the judgment debtors were ready to handover the keys of the premises on 12.07.2013, they were exempt from paying arrears from 12.07.2013 to 20.07.2015 and after proper deduction was given, the decree holders are liable to refund a sum of Rs.71,856/-.

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This is however, countered by the learned counsel for the decree holders who contends that though the judgment debtors offered to handover the keys, the premises was not

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handed over in good and running condition and therefore, the decree holders were justified in not accepting the keys. He contends that since this Court in W.P.No.718/2015 had directed the decree holders to accept the possession of the property on as is where is basis, the same was accepted on 20.07.2015. He therefore, contends that the decree holders were entitled to receive arrears of rent as directed by the Trial Court and the First Appellate Court, which if calculated would indicate that the judgment debtors were liable to pay a sum of Rs.2,61,549/-. He submits that a sum of Rs.17,790/- paid by the decree holders towards arrears of electricity charges is not claimed. He therefore, contends that the judgment debtors are liable to pay a sum of Rs.2,61,549/-.

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When this Court queried the learned counsel for the decree holders as to whether he had factored a sum of Rs.1,90,193/-, which was the interest accrued on the deposit of Rs.5,00,000/-, the learned counsel fairly accepted that the said amount was not factored.

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I have considered the submissions of the learned

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counsel for the judgment debtors as well as the learned counsel for the decree holders.

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After perusing the records, it is apparent that the possession of the premises was handed over to the decree holders on as is where is basis on 20.07.2015 though the judgment debtors were bound to handover the premises in good and running condition. Therefore, the judgment debtors are deemed to be in possession of the property till 20.07.2015 and therefore, were obliged in law to pay rent from 01.08.1992 till 31.03.1995 at the rate of Rs.4,000/- per month with interest at the rate of 9% per annum. Likewise, they are bound to pay rent at the rate of Rs.15,000/- per month from 01.04.1995 to 20.07.2015. They were also bound to pay Court cost, cost of execution and the fee. If the above amount was calculated, the total amount payable by the judgment debtors would be a sum of Rs.38,44,549/-. The judgment debtors have paid a sum of Rs.35,83,000/-, leaving deficit payment of a sum of Rs.2,61,549/-. Since the learned counsel for decree holders acknowledged that a sum of Rs.1,90,193/- was not deducted,

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the total payable by the judgment debtors would be a sum of Rs.71,356/-.

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In that view of the matter, this writ petition is allowed in part. The judgment debtors are liable to pay a sum of Rs.71,356/- as against Rs.2,61,549/- claimed by the decree holders. The executing Court is directed to proceed to recover the said sum of Rs.71,356/- in accordance with law.

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Sd/(R. NATARAJ) JUDGE

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PMR

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List No.: 1 Sl No.: 51

Dr a Rajasimha v. Sri R Shivabasavaswamy

Case brief

What is this about?

What did the court decide?

Dr a Rajasimha v. Sri R Shivabasavaswamy

Case brief

What is this about?

What did the court decide?

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