Karnataka High Court
B Ramaiah vs G G Gurappa on 1 August, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
-1-
NC: 2023:KHC:26827
WP No. 13785 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 13785 OF 2016 (GM-CPC)
BETWEEN:
B RAMAIAH
S/O LATE BETTA
AGED ABOUT :70 YEARS
R/AT : C/O NAGARAJA SHETTY
NO.3/1, DEVI NILAYA, BAZAAR STREET
ADUGODI, BANGALORE-560 030
...PETITIONER
(BY SRI. SANDESH P NADIGER, ADVOCATE FOR
SRI. G BALAKRISHNA SHASTRY.,ADVOCATE)
AND:
1. G G GURAPPA
Digitally
signed by S/O GUTHAPPA
NARASIMHA AGED ABOUT :71 YEARS
MURTHY R/AT NO.122-A, 7TH CROSS
VANAMALA
VENKATESWARA LAYOUT
Location:
HIGH S G PALYA, DRC POST, BANGALORE-560 029.
COURT OF
KARNATAKA 2. SMT. SAKAMMA
W/O B RAMAIAH
AGED ABOUT :63 YEARS
R/AT : C/O NAGARAJA SHETTY
NO.3/1, DEVI NILAYA, BAZAAR STREET
ADUGODI, BANGALORE-560 030
...RESPONDENTS
(BY SRI. RAMESH KUMAR R V, ADVOCATE FOR R1)
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NC: 2023:KHC:26827
WP No. 13785 of 2016
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TOQUASH THE
ORDER DATED 25.1.2016 IN EXECUTION CASE
NO.2876/2013 ON THE FILE OF THE CITY CIVIL
JUDGE, BANGALORE CITY (CCH31) PRODUCED AT
ANNEXURE-B TO THE EXTENT OF DIRECTING ARREST
OF THE PETITIONER; QUASH THE ORDER DATED
27.2.2016 IN EXECUTION CASE NO.2876/2013 ON THE
FILE OF THE CITY CIVIL JUDGE, BANGALORE CITY
(CCH31) PRODUCED AT ANNEXURE-B.
THIS PETITION, COMING ON FOR HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is the judgment debtor in execution No.2876/2013 on the file of the City Civil Judge, Bengaluru [for short, 'the executing Court'], and the petitioner is aggrieved by the executing Court's order dated 25.01.2016. The executing Court by this impugned order has allowed the first respondent's application under Section 51 of the Code of Civil Procedure 1908 [CPC] issuing arrest warrant against the petitioner with police protection.
2. This impugned order is preceded by the executing Court's earlier order dated 20.11.2014, and the executing Court by this earlier order, while -3- NC: 2023:KHC:26827 WP No. 13785 of 2016 rejecting the application under Section 151 of CPC for stay of further proceedings because of the pendency of RFA No.1637/2013, has upheld the objections for issuance of show cause notice for arrest against the petitioner's wife - the second judgment debtor [the second respondent herein] .
3. The learned counsel for the petitioner relies upon the provisions of Section 51 and the provisions of Order XXI Rule 37 of CPC to contend that the executing Court could not have issued arrest warrant without examining the circumstances contemplated under Section 51 of CPC and without due opportunity as contemplated under Order XXI Rule 37 of CPC. A proposition which is not disputed by the learned counsel for the first respondent who in fact submits that this Court must necessarily construe the impugned order as an order that could follow after examining the circumstances that are contemplated under Section 51 of CPC. -4-
NC: 2023:KHC:26827 WP No. 13785 of 2016
4. It remains beyond dispute that where there is a decree for payment of money [as in the present case], execution by detention and imprisonment shall not be ordered unless the Court executing such decree, after the judgment debtor is given an opportunity, is satisfied that the judgment debtor with the object to cause delay in execution in the decree is likely to abscond or leave the local limits of the jurisdiction of the Court or is guilty of committing any other act of bad faith as contemplated under Section 51 proviso a(ii) as also the subsequent clauses.
5. The records do not indicate that these circumstances are considered while issuing the arrest warrant against the petitioner. Hence, this Court must intervene and say that the impugned order for issuance of warrant must stand deferred until the request for arrest warrant is examined as required in the provisions of Section 51 of CPC. The executing -5- NC: 2023:KHC:26827 WP No. 13785 of 2016 Court must also be called upon to re-appreciate and decide on continuation of the warrant for arrest within a period of three [3] months from the next date of hearing with due opportunity to the petitioner and the first respondent.
It is ordered accordingly, and the petition stands disposed of.
Sd/-
JUDGE SA ct:sr