The Karnataka Electricity Board vs The Assistant Commissioner & Lao ... on 21 November, 2012

[Cites 2, Cited by 1]

Karnataka High Court

The Karnataka Electricity Board vs The Assistant Commissioner & Lao ... on 21 November, 2012

Bench: B.S.Patil

                              1


            IN THE HIGH COURT OF KARNATAKA

               CIRCUIT BENCH AT GULBARGA

       DATED THIS THE 21ST DAY OF NOVEMBER, 2012

                          BEFORE

            THE HON'BLE MR.JUSTICE B.S.PATIL

                WP.No.82020/2012 (LA-RES)

BETWEEN:

KARNATAKA ELECTRICITY BOARD,
(NOW KARNATAKA POWER TRANSMISSION
CORPORATION LTD) BY ITS SECRETARY,
CAUVERY BHAVAN, BANGALORE.
THROUGH THE EXECUTIVE ENGINEER.
                                           ... PETITIONER

(BY SMT.HEMA L.KULKARNI, ADV.)

AND:

1.     THE ASSISTANT COMMISSIONER,
       AND LAND ACQUISITION OFFICER,
       GULBARGA.

2.     SRI SURESHCHANDRA
       S/O LATE MOHANCHANDR,
       R/O: H.NO.1-18, COURT ROAD,
       GULBARGA.
                                      ... RESPONDENT
(BY SRI.SHIVAKUMAR R.TENGLI, AGA FOR R-1
    SRI G.G.CHAGASHETTI, ADV FOR R-2)

       This Petition is filed under Articles 226 & 227 of the
Constitution of India praying to issue a writ in the nature of
certiorari to quash the impugned order dated 21.04.2012 vide
Annexure-J in E.P.NO.231/1996 on the file of the Prl.Civil
Judge (Sr.Dn) at Gulbarga.
                                   2



      This petition coming on for Hearing on IA this day, the
Court made the following:

                                ORDER

Order dated 21.04.2012 passed by the Executing Court directing issue of attachment warrant against the judgment debtor - writ petitioner herein towards the dues payable to respondent No.2 is called in question in this writ petition.

2. E.P.370/2006 is filed by late Mohanchandar father of the second respondent herein for executing the judgment and award dated 29.03.1996 passed by the Prl.Civil Judge in LAC No.11/1991.

3. It is the case of the petitioner that although a memo of calculation had been filed by the petitioner/judgment debtor stating that the petitioner was not due to pay any amount and that an excess amount of Rs.3,66,784/- has been paid to the decree holder, the Executing Court directed the office to calculate the amount and put up the papers.

4. It is necessary to notice here that as per the memo of calculation filed by the decree holder, an amount of Rs.13,78,546-74 was due and payable by the judgment debtor as on 24.07.2010. As per the direction issued by the learned Judge the office calculated the amount due and the Account sheristadar attached to the court of the Prl.Civil Judge (Sr.Dn), Gulbarga, submitted the memo of calculation dated 20.4.2012 stating that the total amount due as on 20.4.2012 was Rs.19,48,224/-. Based on the said calculation, the learned Judge has directed issue of attachment warrant for the amount of Rs.19,48,224/-.

5. Learned Counsel for the petitioner submits that the calculation made by the office is not correct and that the petitioner was not heard by the court below before issuing the attachment warrant.

6. Counsel for respondent No.2 submits that the petitioner is entitled for more amount than what has been calculated by the office.

7. In the above circumstance, it is clear from the order passed by the court below that there is no application of mind by the learned Judge to the calculation made by both the parties nor is there anything to show that both parties were heard before passing the impugned order accepting the calculation made by the Accounts Sherestadar. Therefore, the matter requires to be examined afresh by the court below.

8. However, it cannot be lost sight that the decree holder is fighting to have the amount of compensation released by executing the decree. Therefore, to ensure early payment to the decree holder it is just and necessary to issue a direction to the judgment debtor/petitioner herein to deposit the amount.

9. Hence, this writ petition is partly allowed. The impugned order issuing attachment warrant is set aside. The judgment debtor/petitioner is directed to deposit the amount of Rs.19,48,224/- before the Executing Court with two weeks from the date of receipt of this order. The Executing Court shall hear both parties with regard to the calculation made 5 by the Accounts shirestadar. The court shall apply its mind to the material on record and pass appropriate order regarding the dues payable to the decree holder as expeditiously as possible at any rate within one month from the date of receipt of a copy of this order.

Sd/-

JUDGE MSR

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