Karnataka High Court
H P Somashekarappa vs C H Arunkumar Hegde on 12 February, 2026
NC: 2026:KHC:8634
WP No. 13559 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MS. JUSTICE TARA VITASTA GANJU
WRIT PETITION NO.13559 OF 2022 (GM-CPC)
BETWEEN:
H.P.SOMASHEKARAPPA
S/O LATE PUTTAPPA,
AGED ABOUT 52 YEARS,
R/O HANUMANTHAPURA VILLAGE,
HOLEHONNUR HOBLI, ARAHATHOLALU POST,
BHADRAVATHI TALUK-577 301.
SHIVAMOGGA DISTRICT.
...PETITIONER
(BY SRI. GURUPRASAD HEGDE., ADVOCATE FOR
SRI. S.V.PRAKASH., ADVOCATE)
AND:
1. C.H.ARUNKUMAR HEGDE
S/O HUCHAIAH,
AGED ABOUT 42 YEARS,
R/AT IDK-73/A, HUTTA COLONY,
BHADRAVATHI-577 301.
SHIVAMOGGA DISTRICT.
2. H.P.MALLESHAPPA
S/O LATE PUTTAPPA,
AGED ABOUT 64 YEARS,
R/O HANUMANTHAPURA VILLAGE,
HOLEHONNUR HOBLI,
ARATHOLALU POST,
BHADRAVATHI TALUK-577 301.
SHIVAMOGGA DISTRICT.
3. H.P.HIRANNAIAH
S/O LATE PUTTAPPA,
-1-
NC: 2026:KHC:8634
WP No. 13559 of 2022
HC-KAR
AGED ABOUT 58 YEARS,
R/O HANUMANTHAPURA VILLAGE,
HOLEHONNUR HOBLI, ARATHOLALU POST,
BHADRAVATHI TALUK-577 301.
SHIVAMOGGA DISTRICT.
4. LALITHAMMA
W/O LATE NEELAPPA,
AGED ABOUT 51 YEARS,
R/O ANASUVADI VILLAGE AND POST,
SHIVAMOGGA TALUK.
5. GANGAMMA
W/O MANJAPPA,
AGED ABOUT 49 YEARS,
R/O SANYASIKODAMAGI VILLAGE,
ARATHOLALU POST,
BHADRAVATHI TALUK-577 301.
SHIVAMOGGA DISTRICT.
6. CHANDRAMMA
W/O KUBERAPPA,
AGED ABOUT 44 YEARS,
R/O KABALU VILLAGE,
CHANNAGIRI TALUK-577 213,
DAVANAGERE DISTRICT.
7. KUM. H.S.SRUSTI @ H.S.SHRUSTRI
D/O H.P.SOMASHEKARAPPA,
AGED ABOUT 15 YEARS,
SINCE MINOR REP.BY HER MOTHER
AND NATURAL GUARDIAN ,
T.MAMATHA,
W/O H.P.SOMASHEKARAPPA,
AGED ABOUT 40 YEARS,
R/O HANUMANTHAPURA VILLAGE,
HOLEHONNUR HOBLI, ARATHOLALU POST,
BHADARAVATHI TALUK-577 301.
SHIVAMOGGA DISTRICT.
...RESPONDENTS
(R1-SERVED;
-2-
NC: 2026:KHC:8634
WP No. 13559 of 2022
HC-KAR
V/O DTD: 27.10.2022-NOTICE TO R2 TO R7 ARE
DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
THE ORDER DTD.04.01.2020 PASSED BY THE LEARNED
ADDITIONAL SR. CIVIL JUDGE AND JMFC BHADRAVATHI
IN EX-CASE NO.6/2017 PRODUCED AS PER ANNEXURE-E
TO THE W.P. AND ALSO SET ASIDE THE ORDER
28.06.2022 PASSED BY THE COURT OF LEARNED
ADDITIONAL SR CIVIL JUDGE AND JMFC BHADRAVATHI IN
EX NO.6/2017 PRODUCED AS ANNEXURE-J TO THE WRIT
PETITION AND ETC.
THIS PETITION IS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE
THEREIN AS UNDER:
CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU
ORAL ORDER
1. The present petition seeks to challenge an order dated 04.01.2020 passed in execution proceedings bearing Ex.Case No.6/2017 by the Additional Senior Civil Judge and JMFC, Bhadravathi [hereinafter referred to as the "Impugned Order"].
2. By the Impugned Order, an arrest warrant has been issued against the petitioner/Judgment Debtor No.2. This Court on the last date of hearing recorded that there was no presence on behalf of the -3- NC: 2026:KHC:8634 WP No. 13559 of 2022 HC-KAR respondent despite service. Given the fact that by an interim order was granted on 27.10.2022, the execution proceedings have been stayed by this Court and in view of the settled law as laid down by the Supreme Court, this Court deems it apposite to hear and decide this petition today.
3. The brief facts are that a suit for specific performance of contract or alternate relief of refund of advance amount in a sum of Rs.15,00,000/- was filed by the respondent/Decree Holder. The suit came to be decreed by a Judgment and Decree dated 10.08.2016, granting the relief of refund of the advance amount along with interest at the rate of 6% per annum from the date of the agreement.
4. The judgment debtor No.2 filed the present execution proceedings for execution of the judgment and decree passed in OS.No.68/2013. During the pendency of execution proceedings, an order was -4- NC: 2026:KHC:8634 WP No. 13559 of 2022 HC-KAR sought for issue of warrants of attachment as well as of the movable properties were sought. The warrants of attachment could not be executed because of the obstruction caused by the judgment debtor. Hence, the respondent/Decree Holder sought for an order of arrest against Judgment Debtor No.2 alone (the petitioner herein) since judgment debtors Nos.1 and 3 are women. It is this order of arrest of Judgment Debtor No.2/petitioner that has been challenged before this Court.
5. Learned counsel for the petitioner/Judgement Debtor No.2 submits that Judgment Debtor No.1 (mother of Judgement Debtor No.2) has passed away and petitioner/Judgment Debtor No.2 is physically disabled and that he is unable to work. He further submits that he is the only male member supporting his family and that he is not earning any money, but his wife is earning. Learned counsel for the petitioner also submits that he will be in a position to make -5- NC: 2026:KHC:8634 WP No. 13559 of 2022 HC-KAR some payment when he receives funds pursuant to other decrees being passed in respect of ancestral property by the Court.
6. As stated above, none has appears for the respondent despite service. This Court has examined the Impugned Order. The Impugned Order is a reasoned speaking order, which sets out that in view of the obstruction caused by judgment debtors, an order directing warrant of arrest against Judgment Debtor No.2 has been passed. It further sets out that the objections were filed by the petitioner, wherein he has taken grounds similar to what ha been taken before this Court and an additional ground has been taken by him that he does not have any other property. However, the learned Trial Court has examined the record and found that there are two properties which are the joint family properties of the Judgment Debtors. The learned Trial Court has also found that the Judgment Debtor No.1 has died during -6- NC: 2026:KHC:8634 WP No. 13559 of 2022 HC-KAR the pendency of the execution proceedings and that the judgment debtor is entitled to 1/6th share of the joint family properties. The learned Trial Court has also found the discrepancy in the statement of the petitioner that on one hand he submits that he has the responsibility of looking after his family, but on the other hand, he submits that he is not in a position to maintain his family because of his being physically challenged. The relevant extract of the Impugned Order is set out below:
"6. The judgment debtor No.2 who has examined himself as DW-1 has deposed that he is not in possession of any land and that in respect of S.No.121/2 measuring 3A-38G and 5.No.81/1 suit for partition is pending in 0.5.45/2014 on the file of Senior Civil Judge and that he is not the absolute owner of those two items of land and that he is not getting any income.
7. If the Ex.Pl and Ex.P2 (i.e.) the certified copy of the plaint in 0.5.45/2014 and written statement of defendant No.2 filed in the said suit so also the evidence of PW-1 and DW-1 is perused, property bearing S.No.121/2 and S.No.81/1 are the joint family properties of judgment debtors regarding which suit for partition was filed by the brother of judgment debtor No.2. The judgment debtor No.2 in his cross examination has admitted that he being the member of the joint family is entitled for 1/7th share in the said properties.-7-
NC: 2026:KHC:8634 WP No. 13559 of 2022 HC-KAR
8. Though judgment debtor No.2 in his objection statement so also in his examination in chief has taken the defence that there is no areca garden possessed by the joint family, but during the course of cross examination of PW-1, the learned counsel for judgment debtors by posing suggestion to the effect that " ೕಮ ೕಖರಪ ನವರ (judgment debtor No.2) ಅ ೕಟ ಇಂ ಎಂ ಫಸ ಬಂ ಲ ಎಂದ ೕ ಸ ಯಲ " has admitted that the two lands above referred consist of areca garden. If the Ex.P1 and Ex.P2 are referred, the total extent of aforesaid land is 8A-24G.
9. As per the very evidence of judgment debtor No.2 his mother (i.e.) judgment debtor No.1 is dead and she was died during the pendency of the present execution petition. It means as per the very evidence of judgment debtor No.2 he is entitled for 1/6th share in the joint family properties. The judgment debtor No.2 in his objection statement having pleaded his financial constraints and also inability to pay the decreed amount has stated that he has responsibility to look after and maintain his aged mother and family. It means though judgment debtor No.2 is partially handicapped he is capable to maintain his family.
10. At the cost of repetition, it is one of the ground urged by the judgment debtor No.2 is that he is handicapped and not in a position to earn income. But as this court has noticed judgment debtor No.2 is partially handicapped. When he is in a position to maintain his family he cannot escape from his liability of paying the decretal amount by putting forward his physical disability. Furthermore the judgment debtor No.2 has landed properties, which is income fetching property. Hence judgment debtor No.2 has sufficient means and inspite of having means, the judgment debtor No.2 has failed to pay the decreed amount. If the ruling cited by the learned counsel for judgment debtor No.2 reported in 2010(2) KCCR 822 B.S.Ashok Setty/the Investment Trust of India Ltd., is considered, as like in the facts -8- NC: 2026:KHC:8634 WP No. 13559 of 2022 HC-KAR of the said case, the decree holder has not proceeded ahead to seek for an order of issuance of arrest warrant against judgment debtor No.2 without complying mandatory provisions one enstrined in or condition prescribed under Order XXI Rule 37 and order XXI Rule 40(1) of C.P.C. Herein before seeking an order of arrest warrant against judgment debtor No.2. Arrest notice was issued to judgment debtor No.2 and on service of arrest notice, opportunity was given to the judgment debtor No.2 to file his objection and court has heard the decree holder and judgment debtor No.2 after taking all such necessary evidence produced by respective parties.
11. If the evidence given by decree holder and judgment debtor No.2 is perused, the decree holder has established the capacity or capability of judgment debtor No.2 to pay the 9ecretal amount and also the intentional evasion of judgment debtor No.2 to satisfy the decree. Hence decree holder is entitled for an order of arrest warrant against judgment debtor No.2. Hence the following:
ORDER Issue arrest warrant against judgment debtor No.2 after the decree holder deposits the SA amount and PF."
[Emphasis Supplied]
7. Concededly,whether the petitioner is maintaining or not maintaining his family, however, he cannot escape the liability of a decree passed against him. The petitioner has taken a sum of Rs.15,00,000/- from the respondent/Decree Holder which has not been returned. An examination of the Impugned Order -9- NC: 2026:KHC:8634 WP No. 13559 of 2022 HC-KAR shows that the Impugned Order has been passed after evidence has been led by the decree holder as well as on an examination of the evidence and documents before it. Since the Attachment of warrants could not be executed because of obstruction caused by the judgment debtors, an arrest warrant has been sought for.
8. In any event, the execution of the decree which was granted to the judgment debtor on 10.08.2016 has still not been executed despite the lapse of almost 10 years. It is settled law that execution of decree should not be interdicted by the High Court unless perversity is shown. The Supreme Court in Rahul S. Shah v. Jinendra Kumar Gandhi and others1 has held that while courts dealing execution proceedings must dispose of the same within six months. The relevant extract is set out below:
"41. Having regard to the above background, wherein there is urgent need to reduce delays 1 (2021) 6 SCC 418
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NC: 2026:KHC:8634 WP No. 13559 of 2022 HC-KAR in the execution proceedings we deem it appropriate to issue few directions to do complete justice. These directions are in exercise of our jurisdiction under Article 142 read with Article 141 and Article 144 of the Constitution of India in larger public interest to subserve the process of justice so as to bring to an end the unnecessary ordeal of litigation faced by parties awaiting fruits of decree and in larger perspective affecting the faith of the litigants in the process of law.
42. All courts dealing with suits and execution proceedings shall mandatorily follow the below mentioned directions:
42.1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order 10 in relation to third-party interest and further exercise the power under Order 11 Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third-party interest in such properties.
42.2. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the court, the court may appoint Commissioner to assess the accurate description and status of the property.
42.3. After examination of parties under Order 10 or production of documents under Order 11 or receipt of Commission report, the court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit.
42.4. Under Order 40 Rule 1 CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.
42.5. The court must, before passing the decree, pertaining to delivery of possession of a property
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NC: 2026:KHC:8634 WP No. 13559 of 2022 HC-KAR ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property. 42.6. In a money suit, the court must invariably resort to Order 21 Rule 11, ensuring immediate execution of decree for payment of money on oral application.
42.7. In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.
42.8. The court exercising jurisdiction under Section 47 or under Order 21 CPC, must not issue notice on an application of third party claiming rights in a mechanical manner. Further, the court should refrain from entertaining any such application(s) that has already been considered by the court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant. 42.9. The court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.
42.10. The court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to sub-rule (2) of Rule 98 of Order 21 as well as grant compensatory costs in accordance with Section 35-A. 42.11. Under Section 60 CPC the term "... in name of the judgment-debtor or by another person in trust
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NC: 2026:KHC:8634 WP No. 13559 of 2022 HC-KAR for him or on his behalf" should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property. 42.12. The executing court must dispose of the execution proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay. 42.13. The executing court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the police station concerned to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the court, the same must be dealt with stringently in accordance with law.
42.14. The Judicial Academies must prepare manuals and ensure continuous training through appropriate mediums to the court personnel/staff executing the warrants, carrying out attachment and sale and any other official duties for executing orders issued by the executing courts."
[Emphasis Supplied]
9. In view of the aforegoing discussions, this Court finds that there is no infirmity with the Impugned Order which would require interference by this Court. The petition is accordingly dismissed.
10. At this stage, learned counsel for the petitioner submits that he will be making fresh attempts to defray the decree and for this purpose, he wishes to
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NC: 2026:KHC:8634 WP No. 13559 of 2022 HC-KAR file an appropriate application before the learned Trial Court on the next date of hearing. The petitioner is not precluded from filing any appropriate proceedings in accordance with law to defray the execution and the decree passed.
11. The Court is informed that the next date of hearing before the learned Trial Court is 07.03.2026. Accordingly, in the event that the petitioner files appropriate proceedings before that date, the learned Trial Court shall examine the same and pass directions in accordance with law.
12. Let no precipitative action be taken against the petitioner till 07.03.2026.
13. The parties shall act based on a digitally signed copy of the order.
Digitally signed by TARAVITASTA GANJU Location: HIGH COURT OF KARNTAKA (TARA VITASTA GANJU)
JUDGE NR/PSJ/BMV*/List No.: 1 Sl No.: 21
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