Sridhar D vs Deepak S Kakkad on 5 January, 2017

[Cites 3, Cited by 0]

Karnataka High Court

Sridhar D vs Deepak S Kakkad on 5 January, 2017

Bench: B.V.Nagarathna

                         -: 1 :-


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 05TH DAY OF JANUARY, 2017

                         BEFORE

         THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA

        WRIT PETITION No.47336/2016 (GM-CPC)

BETWEEN:

1.    SRIDHAR .D
      S/O S.N. DORAIRAJ,
      AGED ABOUT 44 YEARS,
      NO.72, 2ND CROSS,
      AMARJYOTHINAGAR,
      GOVINDARAJANAGAR,
      BENGALURU - 560 040.
      PRESENTLY RESIDING AT
      NO.304, 2ND MAIN,
      II STAGE, NAGARABHAVI,
      BENGALURU - 560 072.

2.    SMT. HEMAMALINI .S
      AGED ABOUT 41 YEARS,
      W/O SRIDHAR .D
      NO.72, 2ND CROSS,
      AMARJYOTHINAGAR,
      GOVINDARAJANAGAR,
      BENGALURU - 560 040.
      PRESENTLY RESIDING AT
      NO.304, 2ND MAIN,
      II STAGE, NAGARABHAVI,
      BENGALURU - 560 072.                ... PETITIONERS

(BY SRI: MANJUNATH B.S., ADVOCATE FOR M/S. SUO A/S.)

AND:

1.    DEEPAK .S. KAKKAD,
      AGED ABOUT 48 YEARS,
      S/O SURESH CHANDRA .G. KAKKAD,
      NO.134, S-2, RAJYOG
      APARTMENTS, 1ST CROSS,
      CENTRAL EXCISE LAYOUT,
      VIJAYANAGAR,
      BENGALURU - 560 040.
                           -: 2 :-



2.   M/S. VIRTUE IMPORT AND EXPORT PVT. LTD.,
     NO.71, 8TH CROSS, 5TH MAIN, M.C. LAYOUT,
     BENGALURU - 560 040.
     REPRESENTED BY ITS
     MANAGING DIRECTOR,
     SRIDHAR .D,
     AGED ABOUT 44 YEARS,
     NO.72, 2ND CROSS,
     AMARJYOTHINAGAR,
     GOVINDARAJANAGAR,
     BENGALURU - 560 040.                   ... RESPONDENTS
                            *****
      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER AT ANNEX-A DATED 06.08.2016 IN EX.NO.1393/2014 ON
THE FILE OF THE XIX ADDL. CITY CIVIL AND SESSIONS JUDGE AT
BANGALORE CITY AND ETC.

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

                         ORDER

The petitioners herein are judgment-debtor Nos.2 and 3 in Execution No.1393/2014, which is pending on the file of the XIX Addl. City Civil & Sessions Judge at Bangalore City. Respondent No.1 had filed O.S. No.8179/2010 against the petitioners herein as well as respondent No.2 herein, seeking recovery of money. By judgment and decree dated 04/03/2014, the suit was decreed in part. Defendant Nos.1 to 3 were directed to pay the decretal amount within two months from that date. The said decree is joint and several. The decretal amount is Rs.9,36,995/- with future simple interest at 12% p.a. from the date of suit till realization. However, -: 3 :- the prayer sought by the plaintiff for attachment and sale of the suit schedule property i.e., immovable property for realization of the decretal amount was rejected. There is no challenge to the said decree which has attained finality. Thereafter, the decree-holder filed Execution Petition in Ex.No.1393/2014. In that proceeding, the decree-holder sought recovery of money.

2. Learned counsel for the petitioners submits that in the execution proceeding an application was filed for attachment and sale of immovable property. Though that application was allowed, subsequently, the said order was recalled. Thereafter, another application has been filed under Section 47 of the Code of Civil Procedure, 1908 (CPC), in order to recall the attachment order dated 25/08/2015, against the petitioners herein. That order dated 25/08/2015 was passed by the executing court seeking attachment and sale of the movables. In fact, being aggrieved by the order dated 25/08/2015, I.A.No.3 was filed by the petitioners herein under Section 47 of the CPC. By the impugned order dated 06/08/2016, that application has been rejected. Being aggrieved, this writ petition is preferred.

-: 4 :-

3. I have heard learned counsel for the petitioners and perused the material on record.

4. It is noted that the trial court, while decreeing the suit, expressly rejected the prayer for attachment and sale of immovable property for the realization of the decretal amount. But there is no bar for recovery of the decretal amount by attachment and ultimately sale of the movables. That is, precisely the order passed on 25/08/2016, by which, the executing court has attached the movables. That order was sought to be recalled by the petitioners herein. The trial court has, in substance observed that there is no bar for attaching the movables. That the application under Section 47 of the CPC was, therefore, not maintainable and has accordingly, dismissed the application. I do not find any infirmity in the impugned order. There is no merit in the writ petition.

5. Writ petition is dismissed.

Sd/-

JUDGE S*

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