Karnataka High Court
Sri G Venkatesh vs Sri Y S Rangaswamy on 6 December, 2022
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 17092 OF 2022 (GM-CPC)
BETWEEN:
SRI G VENKATESH
S/O N GANESHAPPA
AGED ABOUT 53 YEARS
R/A NO.1077/1
APPAYANNA CROSS
HOSA BEEDHI
YELAHANKA OLD TOWN
BENGALURU-560064
...PETITIONER
(BY SRI. SOMASHEKHARAIAH R P., ADVOCATE)
AND:
SRI Y S RANGASWAMY
S/O N GANESHAPPA
AGED ABOUT 67 YEARS
R/O K H B COLONY
HALINA SUBBANNA LAYOUT
GANDHINAGAR
BENGALURU-560064
...RESPONDENT
(BY SRI. NAGARATHNA S K.,ADVOCATE)
-2-
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DTD. 20.08.2022 MADE IN EXE.CASE
NO.1392/2020 ON THE FILE OF THE XLI ADDL. CITY CIVIL
JUDGE, BENGALURU (CCH-42) UNDER ANNX-F.
THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is the judgment debtor in Ex.No.1392/2020 on the file of the XLI Additional City Civil Judge, Bengaluru (for short, 'the executing Court'). The petitioner has impugned the executing Court's order dated 20.08.2022, and the executing Court by this order has issued delivery warrant for the petitioner's ejectment from the subject property. The execution case is filed for execution of a decree of this Court in R.F.A.No.779/2020 which is disposed of on 19.07.2021.
2. This Court has disposed of the appeal in R.F.A.No.779/2020 on an application filed under Order XXIII Rule 3 of the Code of Civil Procedure, 1908. The petitioner does not contest that he is in default of the terms of the compromise both in paying the arrears as well as in -3- handing over vacant possession. Presently, an undertaking affidavit is filed stating that out of the arrears of Rs.6,38,500/-, a sum of Rs.3,28,000/- has already been deposited with the executing Court and the petitioner would continue to pay the remaining amount in installments at the rate of Rs.25,000/- without default and a sum of Rs.14,500/- for every month until 30.06.2023. The petitioner has also undertaken to vacate and hand over vacant possession on or before this date. Significantly, the petitioner has also stated that if there is two consecutive defaults in paying either the aforesaid amounts of Rs.25,000/- or Rs.14,500/-, the respondent would be at liberty to take possession of the subject premises immediately.
3. The petitioner's undertaking in this regard reads as under:
That, this Hon'ble Court granted interim order subject to deposit of Rs.2.50 thousand within one week and another Rs 2.50 thousand within one week. Thereafter Pursuant to the interim order the petitioner herein deposited a sum of Rs.1,08,000/- on 06.12.2021 and has obtained DDs for Rs. 1,00,000 and for Rs 50,000/- drawn on Indian Bank and another DD for a sum of Rs -4- 20,000/- on 29.11.2022 drawn on Indian Bank Yelahanka New Town, Bengaluru. Thus, the petitioner totally obtained DD for Rs. 3,28,000/- Now the respondent herein filed Memo on 30.11.2022 calling the petitioner to pay Rs.6,38,000/- towards arrears of rent etc. It is submitted as per the calculation memo the respondent has filed the total due is Rs.6,38,500/- till today and out of which the petitioner has paid Rs.3,28,000/- and for the balance amount Rs.3,28,000/- will be paid in installments @ Rs 25.000/- coupled with continue to pay the rent.
That, the petitioner undertakes vacate and hand over vacant possession on or before 31.06.2023. If the petitioner fails to pay any two of the installments as undertaken, the respondent is at liberty to take possession immediately in accordance with law."
The learned counsels are heard for disposal of the petition in the light of this undertaking.
4. Smt. S.K.Nagarathna, the learned counsel for the respondent, submits that the petitioner's conduct does not inspire the respondent to believe that the petitioner would abide by the undertaking given before this Court. The learned counsel draws the attention of this Court to certain -5- statements made in the cross examination even before the civil Court and the terms of the compromise to support the respondent's apprehension. However, Sri. R.P.Somashekaraiah, the learned counsel for the petitioner, submits that he has instructions to state that the petitioner understands the consequences of filing an undertaking and that would not be just as regards handing over vacant possession of the premise.
5. On an anxious consideration of the overall circumstances of the case, and to ensure that there is no precipitation, this Court is of the considered view that the petition must be disposed of:
[i] calling upon the executing Court to defer coercive measures until 01.07.2023 unless the petitioner commits default in tendering either Rs.25,000/- [every month towards rental arrears] or Rs.14,500/- p.m. as now stated for two consecutive months, [ii] if there is such default, reserving liberty to respondent to move the executing Court and -6- seek necessary orders for immediate delivery of vacant possession.
[iii] holding that the respondent shall withdraw immediately every amount in deposit with the executing Court and in this case, and the Registry is directed to release the amount in deposit, if any, in the present proceedings in favour of the respondent, subject to identity.
The petition stands disposed of accordingly Sd/-
JUDGE RB