Karnataka High Court
M/S Petro Engineering vs Sri P Daljitram Chowdary on 18 March, 2014
Author: Mohan .M.Shantanagoudar
Bench: Mohan .M. Shantanagoudar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF MARCH, 2014
BEFORE
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
WRIT PETITION No.3387 OF 2014 (GM-CPC)
BETWEEN:
M/S PETRO ENGINEERING
& SPECIALITIES PVT. LTD,
A COMPANY HAVING ITS REGISTERED OFFICE
AT NARAYANA SMRITI,
NO.446, B1/A, SHANIWARPET,
PUNE 411030 REPRESETNED BY ITS
MANAGING DIRECTOR, A.L SUBRAMANYAM,
S/O A. LOKANATH, AGED ABOUT 79 YEARS,
R/AT NO.354/B, 4TH MAIN, GOKULAM II STAGE,
MYSORE 570 001 ... PETITIONER
(BY SRI VASANTHAPPA, ADV. )
AND:
SRI P DALJITRAM CHOWDARY
AGED ABOUT 34 YEARS,
S/O SRI PRABHURAM,
R/AT NO.2645/5, II MAIN, TEMPLE ROAD,
VANIVAILASPURAM MOHALLA,
MYSORE 570 001 ... RESPONDENT
(BY SRI JITENDRA C P AND
SMT. ANUPAMA HEBBAR, ADVS, )
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 02.01.2014, PASSED ON IA.NO.1 VIDE ANN-K
FILED U/O XLI RULE 5 OF CPC., IN MIS.PET.NO.88/13, ON THE
FILE OF THE 1ST ADDL. DISTRICT & SESSIONS JUDGE, MYSORE.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING: -
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ORDER
By the impugned order dated 2.1.2014 the Court below has refused to stay the execution proceedings pending on the file of Executing Court on the ground that the petitioner has not deposited the amounts as per the calculation memo filed by the respondent.
2. Records reveal that O.S.No.226/2007 was filed by the petitioner herein for specific performance and O.S.No.1207/2007 is filed by the respondent herein for ejectment of the petitioner from the suit property.
3. Be that as it may, suits were clubbed and heard together. OS.NO.226/2007 for specific performance came to be dismissed, whereas O.S.No.1207/2007 is partly decreed with a direction to the petitioner herein to vacate and deliver vacant possession of the suit schedule property within six months. The petitioner herein (defendant in O.S.No.1207/2007) is further directed to pay a sum of Rs.1,55,000/- to the plaintiff within three months, if not, the petitioner shall be charged with 6% interest. Decree for damages is also passed. It is further -3- observed by the Trial Court that there shall be separate enquiry as per the provisions of Order 20 Rule 12 of CPC while executing the decree in O.S.No.1207/2007, the respondent herein has filed Execution Petition No.56/13 and the same is pending consideration.
4. In the meanwhile, R.A.No.214/13 is filed by the petitioner challenging the judgment and decree passed by the trial Court in O.S.No.1207/2007. In the said appeal, the appellant therein (petitioner herein) was directed to deposit Rs.16,38,817/- towards arrears of rent and damages calculated for use and occupation. The said amount was calculated by the respondent - decree holder in his memo of calculation. Since the petitioner here/judgment debtor / appellant in R.A.No.214/2013 did not deposit Rs.16,38,817/-, the appeal came to be dismissed for default.
5. Thereafter Misc.Petition No. 88/2014 is filed for restoration of the appeal by the petitioner herein on the ground that the petitioner is not required to deposit Rs.16,38,817/- but is required to deposit Rs.1,55,000/- -4- with interest @ 6% p.a. In the said Misc. Petition an application (I.A.1) for stay is also filed by the petitioner for staying the execution proceedings. The said application (I.A.1) is rejected.
6. Prima facie it appears the Court below is not justified in insisting the petitioner to deposit Rs.16,38,817/- towards arrears of rent and damages for use and occupation by the petitioner inasmuch as the damages have to be quantified by conducting a separate enquiry under Order 20 Rule 12 of CPC. Since such enquiry is not conducted by the concerned Court under Order 20 Rule 12 of CPC, it is not open for the Court to insist the petitioner to deposit Rs.16,38,817/-. The aforementioned amount was the amount calculated by the decree holder and not by the Court. Thus unless there is quantification by the Court, the Court below ought not to have insisted the petitioner to deposit the aforementioned amount of Rs.1,55,000/-.
7. Be that as it may, it is brought to the notice of the Court that the petitioner has deposited the decretal -5- amount of Rs.1,55,000/- plus interest (amounting to Rs.1,70,000/-). The same is sufficient for the present purpose. However, the petitioner is also liable to pay damages which would be quantified by the Court below in terms of the provision Order 20 Rule 12 of CPC by a separate enquiry.
8. With this observation, the petition stands disposed of. Misc.Pet.No..88/2013 shall be decided by the Court below on merits and in accordance with law as early as possible but not later than the outer limit of 4 weeks from the date of receipt of a copy of this order. Thereafter further proceedings shall go on.
Sd/-
JUDGE NG*