Karnataka High Court
Altaf Ahmed vs Mohd Ghouse Nazeem Badsha on 5 December, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2023:KHC:43846
WP No. 28239 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 28239 OF 2018 (GM-CPC)
BETWEEN:
ALTAF AHMED
AGED ABOUT 58 YEARS,
S/O LATE HAJI MOHAMMED
PRESENTLY R/AT NO. 316,
10TH MAIN, 14TH CROSS,
INDIRANAGAR 2ND STAGE,
BANGALORE - 560 036.
...PETITIONER
(BY SRI. ARJUN REGO, ADVOCATE FOR
SRI. REGO L P E.,ADVOCATE)
AND:
MOHD. GHOUSE NAZEEM BADSHA
S/O LATE MOHAMMED GHOUSE
AGED ABOUT 58 YEARS,
Digitally
REPRESENTED BY HIS GPA HOLDER
signed by MRS. SAMEENA NAZEEM
NARASIMHA
MURTHY W/O MOHD. GHOUSE NAZEEM BADASHA
VANAMALA
AGED ABOUT 52 YEARS,
Location:
HIGH R/AT NO. 2062, 16TH D MAIN,
COURT OF
KARNATAKA HAL II STAGE, INDIRANAGAR,
BANGALORE - 560 038.
...RESPONDENT
(BY SRI. PRABHUGOUD THUMBAGI, ADVOCATE FOR
SRI M RAMAKRISHNA.,ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE
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NC: 2023:KHC:43846
WP No. 28239 of 2018
ORDER DATED 23.6.2018 PASSED IN EX. NO.
2506/2015 ON THE FILE OF THE LEARNED XXV ADDL.
CITY CIVIL AND SESSIOSN JUDGE BANGALORE CITY,
VIDE ANNEX-A GRANTING SIMULTANEOUSLY TO THE
PETITIONER HIS COSTS, COUNSELS' FEE.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The petitioner is the Judgment Debtor in Ex. No.2506/2015 on the file of the XXV Additional City Civil and Sessions Judge, Bengaluru [for short, 'the executing Court']. The petitioner has impugned the executing Court's order dated 23.06.2018, and the executing Court by this order has directed its office to issue process for arrest if steps are taken, and it is seen from the proceedings of the executing Court that prior to this order, an arrest warrant is issued in similar terms recording that the earlier arrest warrant is returned.
2. The proceedings commenced by the respondent for ejectment and for recovery of alleged -3- NC: 2023:KHC:43846 WP No. 28239 of 2018 arrears of rent in O.S. No.4738/2010 has culminated in a decree. According to the petitioner, in due deference to the decree, he has handed over possession of the subject property while tendering a sum of Rs.12,00,000/- which is duly acknowledged. The respondent has commenced final decree proceedings in FDP No.14/2014 which is decreed on 05.09.2015 determining that the petitioner is liable to pay mesne profits in a sum of Rs.30,000/- per month for the period from 13.07.2010 to 20.12.2013, and this final decree is put into execution in Ex. No.2506/2015. The petitioner has not accepted the final decree inasmuch as miscellaneous proceedings are filed in Misc. No.45/2018.
3. The respondent contests the petitioner's case that a sum of Rs.12,00,000/- was tendered at the time of handing over the vacant possession, and in fact, it is stated on behalf of the respondent that certain instruments issued by the petitioner have -4- NC: 2023:KHC:43846 WP No. 28239 of 2018 returned unpaid and the Court bailiff has also not been able to attach the movable properties despite best efforts by him as the assertion which is seriously contested on behalf of the petitioner.
4. These circumstances apart, Sri Arjun Rego, the learned counsel for the petitioner, contests the executing Court's order to issue arrest warrant on the following three grounds:
[a] the respondent may have filed the application under Order XXI Rule 37 of the Code of Civil Procedure, 1908 [for short, 'the CPC'] but no orders have been passed on the same issuing notice to the petitioner to show cause against arrest; [b] the executing Court should have examined whether the petitioner is justified in contending that a sum of Rs.12,00,000/-
was paid to the respondent
simultaneously with handing over
possession of the subject property, and [c] the Court bailiff has attached certain movable properties and handed over the -5- NC: 2023:KHC:43846 WP No. 28239 of 2018 custody to the respondent who has appropriated the same and therefore there should have been necessary set off as against the value even if any amount was found payable by the petitioner.
5. Sri Prabhugoud Thumbagi, the learned counsel for the respondent, cannot controvert that the executing Court has issued warrant for arrest of the petitioner without due process contemplated under the provisions of Order XXI Rule 37 of CPC notwithstanding the fact that the application is filed. There must be interference on this sole ground, but in the peculiarities of this case where the petitioner contends that a sum of Rs.12,00,000/- was paid at the time of delivery of possession and in execution of delivery warrant certain movable properties are attached and handed over to the custody of the respondent, this Court is of the considered view that these are seriously contested matters which must be -6- NC: 2023:KHC:43846 WP No. 28239 of 2018 examined before issuing notice to show cause against arrest. In the light of the afore, the following:
ORDER [a] The petition is allowed-in-part, and the order dated 23.06.2018 in Ex. No.2506/2018 on the file of the XXV Additional City Civil and Sessions Judge, Bengaluru is quashed restoring the proceedings for reconsideration in the light of this Court's observation. [b] The executing Court, given the nature of the dispute, shall hold an enquiry in the light of this Court's observation and conclude the same within a period of two [2] months from the date of receipt of a certified copy of this order.
Sd/-
JUDGE AN/-