Karnataka High Court
Sri. Paramesh. G vs Sri. V. Sathyamoorthi on 14 February, 2024
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NC: 2024:KHC:6373
WP No. 25166 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 25166 OF 2018 (GM-CPC)
BETWEEN:
1. SRI. PARAMESH. G
AGED ABOUT 58 YEARS
S/O LATE GOVINDARAJ J
R/AT SETTIKUNTE VILLAGE
KYASAMBALLI HOBLI
BANGARPET TALUK
...PETITIONER
(BY SRI. KRISHNAN C V.,ADVOCATE)
AND:
1. SRI. V. SATHYAMOORTHI
AGED ABOUT 44 YEARS
S/O LATE A S VEDADRI
PROP: M/S GOLD MINES FINANCE
7TH CROSS ROAD,OPPOSITE NEHRU PARK
ROBERTSONPET POST
Digitally signed by
PAVITHRA N K.G.F - 563 122
Location: High ...RESPONDENT
Court of Karnataka
(BY SRI. GUNASHEKAR.,ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED
BY THE LEARNED PRINCIPAL CIVIL JUDGE AND ADDITIONAL JMFC,
KGF, IN EX.82/2016 DATED 11.04.2018 AND 21.04.2018 AT
ANNEXURE-E AS ILLEGAL, WITHOUT JURISDICTION, AGAINST THE
PRINCIPLES AND PROCEDURE OF LAW AND THE SAME IS AGAINST
THE RIGHTS POWERS GUARANTEED UNDER ARTICLE 14 AND 21 OF
CONSTITUTION OF INDIA AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN B-GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:
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NC: 2024:KHC:6373
WP No. 25166 of 2018
ORDER
The judgment debtor in Ex.Case No.82 of 2016 on the file of the learned Principal Civil Judge and Additional JMFC, KGF, is seeking issuance of writ of certiorari to quash the order dated 11.04.2018 remanding him to the civil prison for non payment of decreetal amount.
2. Heard Sri. Krishnan C V, learned counsel for the petitioner and Sri. Gunashekar, learned counsel for the respondent. Perused the materials on record.
3. Learned counsel for the petitioner submits that the petitioner who is the defendant in OS No. 467 of 2015 was placed ex-parte and the decree came to be passed. Immediately, the decree holder filed Ex.Case No.1 of 2016, which was later transferred to the Jurisdictional Court for execution and renumbered as Ex.case No.82 of 2018. The arrest notice was issued to the judgment debtor. He was arrested and produced before the Executing Court on 11.04.2018. On that day, the judgment debtor specifically stated that he has no means to pay the amount. The Executing Court without following the procedure as contemplated under -3- NC: 2024:KHC:6373 WP No. 25166 of 2018 Section 55 (3) of CPC, proceeded to remand him to the civil prison, which is barred under the law. Therefore, the petitioner prays for allowing the petition, in the interest of justice.
4. Per contra, learned counsel for the respondent opposing the petition submitted that the suit OS No.467 of 2015 was filed for recovery of money and the defendant has not chosen to contest the suit. He was placed ex-parte and an ex-parte decree was passed. Even though, execution was filed in the year 2016, he has not paid any amount towards satisfaction of the decreetal amount. Therefore, the arrest warrant was issued and he was arrested and produced before the Court. Since he refused to pay the decreetal amount, he was remanded to the civil prison. There is no illegality in the order passed by the Executing Court on 11.04.2018.
5. Learned counsel submits that the petitioner is a solvent person having sufficient means and having several properties. He is refusing to pay the decreetal amount. He has not contested the suit nor he has challenged the judgment and decree passed by the Trial Court. He is deliberately delaying -4- NC: 2024:KHC:6373 WP No. 25166 of 2018 execution of the decree. Hence, he prays for dismissal of the petition, in the interest of justice.
6. The admitted facts of the case are that, the respondent as plaintiff filed suit OS No.467 of 2015 for recovery of the amount. The defendant was placed ex-parte and an ex- parte decree was passed by the Trial court. Initially, Ex.Case No.1 of 2016 was filed and on the basis of jurisdiction, it was transferred to the Executing Court, where it is registered as Ex.Case No. 82 of 2018. Arrest notice was issued to the judgment debtor and in spite of that, he has not appeared before the Court nor paid the decreetal amount.
7. The order dated 11.04.2018 of the Executing Court discloses that the judgment debtor was produced under warrant, which reads as under:
" JDR produced under warrant and JDR not ready to pay decree amount to DHR. DHR and counsel present and counsel for JDR also present and also JDR submitted that he has not availed loan from DHR and not ready to pay par payment also. Hence, JDR is remanded to civil prison till next date of hearing. Issue intimation accordingly. "-5-
NC: 2024:KHC:6373 WP No. 25166 of 2018
8. Learned counsel for the petitioner submits that the Executing Court has not followed the procedure as contemplated under Section 55 (3) of CPC. The Executing Court should have informed the judgment debtor to apply to be declared as insolvent and on his willingness to apply to be declared as insolvent to furnish a surety. The procedure as contemplated under sub-Section (4) should have been followed. But the order dated 11.04.2018 which is extracted above discloses that when the judgment debtor was produced before the Executing Court, he was represented by his advocate. He has not submitted that he is not having any means for payment of the decreetal amount. On the other hand, it was his submission that he is not ready to pay any amount as he has not availed any loan. Under such circumstances, the Executing Court was justified in remanding him to the civil prison.
9. It is pertinent to note that the suit OS No. 467 of 2015 is filed for recovery of amount against the petitioner and in spite of service of notice, he remained ex-parte. Therefore, an ex-parte decree was passed. The decree was put in execution since 2016. Learned counsel for the petitioner pleads -6- NC: 2024:KHC:6373 WP No. 25166 of 2018 his ignorance as to whether the said ex-parte decree was challenged by the petitioner or not. Under such circumstances, I do not find any reason to entertain the petition nor I find any illegality in the order passed by the Trial Court.
Hence, the writ petition is dismissed.
Sd/-
JUDGE SPV List No.: 1 Sl No.: 15