Mohammed Iqbal Sheik vs M/S Maharastra Apex Corporation Ltd on 28 March, 2013

[Cites 3, Cited by 1]

Karnataka High Court

Mohammed Iqbal Sheik vs M/S Maharastra Apex Corporation Ltd on 28 March, 2013

Bench: Ravi Malimath

                             1




   IN THE HIGH COURT OF KARNATAKA AT BANGALORE


           ON THE 28TH DAY OF MARCH 2013


                        BEFORE


       THE HON'BLE MR.JUSTICE RAVI MALIMATH


 WRIT PETITION NOS.42540 & 42992 OF 2011(GM-CPC)


BETWEEN:

Mohammed Iqbal Sheik
S/o late Abdul Rahim
Aged about 79 years
R/o Ganjimutt - 574 144
Mangalore Taluk,
Dakshina Kannada District.              ...PETITIONER

(By Sri Chandra Shekar H.B., Advocate for M/s.HBC
Associates, Advocates)

AND:

M/s.Maharastra Apex Corporation Ltd.,
Manipal,
Represented by its PA Holder,
U.Gopal.                          ...RESPONDENT

(By Sri Pundikai Ishwar Bhat, Advocate-absent)

                         *****
                              2




       These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India praying to declare that the
order dated 10.12.2010 and order dated 5.9.2011 passed
by the Civil Judge (S.D.) Mangalore in Ex.P.No.273/1994 is
illegal and quash the same vide Annexure-J.

      These Writ Petitions coming on for preliminary
hearing in 'B' group this day, the Court made the
following:-


                          ORDER

The respondent-plaintiff filed a suit for recovery of money. It was decreed. On an appeal by the defendant the same was modified and the rate of interest was reduced. Seeking execution of a sum of Rs.1,44,004.17p/- the execution was taken up. Objections were raised that the entire amount has been satisfied. However, the execution Court directed him to pay a sum of Rs.96,617.17 due as on 24-8-2010. Hence, the present Petitions.

2. In terms of the order passed by this Court dated 17-11-2011 the petitioner was directed to deposit a sum of Rs.75,000/- before the Executing Court. It is 3 submitted at the Bar that the said amount has since been paid.

3. The contention of the petitioner is that notwithstanding this amount of Rs.75,000/-, that he has deposited, the material would show that the entire amount due has been paid. Even otherwise if the said amount of Rs.75,000/- is also taken into consideration not only is there no amount due, but the decree holder would have to return the excess amount paid by him.

4. The counsel for the respondent is absent. In view of the submissions made by the learned counsel for the petitioner that a sum of Rs.75,000/- has been paid before the Executing Court, it is only just and appropriate that the Executing Court re-considers the objections of the petitioner. Both the parties are at liberty to file their fresh memo of calculations and to convince the Court with regard to the payments due or made by each one of them. 4

5. Consequently, the Petitions are allowed. The orders dated 10-12-2010 and 5-9-2011 passed by the learned Civil Judge (Senior Division),Mangalore, in Execution Petition No.273/1994 is set aside. The Executing Court to hear both the parties with regard to the amounts due and payable and pass appropriate orders in accordance with law within a period of 4 weeks from the date of receipt of copy of this order. Ordered accordingly.

Sd/-

JUDGE Rsk/-

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