Karnataka High Court
The Karnataka Housing Board vs Mr Derrick D' Sa on 13 January, 2017
Author: B.S.Patil
Bench: B.S.Patil
WP 59183/2016 & 60633/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.59183/2016 &
W.P.No.60633/2016 (LA-KHB)
BETWEEN
THE KARNATAKA HOUSING BOARD,
CAUVERY BHAVAN,
BANGALORE-560 009,
REP.BY ITS CHAIRMAN. ... PETITIONER
(By Sri BASAVARAJ V.SABARAD, ADV.)
AND
1. Mr.DERRICK D' SA,
SINCE DECEASED BY HIS
LEGAL REPRESENTATIVES
(a) MRS.HARRIET D' SA,
W/O LATE DERRICK D' SA
AGED 66 YEARS
(b) Mr.VINOD D' SA
S/O LATE DERRICK DSA
AGE:43 YEARS
(c) Mrs. MARITA D' SA
D/O LATE DERRICK D' SA
AGE:35 YEARS
1(b) & (c) ARE REP.BY
GPA HOLDER HARRIET D'SA (1a)
All ARE R/AT NO.42B,
CUNNINGHAM ROAD CROSS
BANGALORE-560 052
WP 59183/2016 & 60633/2016
2
2. Mr.ERIC D' SA
S/O LATE DOROTHY D' SA
AGE 70 YEARS,
R/AT 14, SARASBAUG DEONAR,
MUMBAI-400 088.
3. COL.FEDRICK D' SA
S/O LATE DOROTHY D' SA
AGE 68 YEARS
4. Mrs.MABEL JUSTINA D' SA
W/O LATE JOSEPH J.P.D' SA
AGE 58 YEARS
5. Mrs.TABITHA SANIA D' SA
D/O LATE JOSEPH J.P. D'SA
AGE 31 YEARS
6. Mrs JOVITHA SHAINA D' SA
D/O LATE JOSEPH J.P. D' SA
AGE 28 YEARS
7. Mrs SAMANTHA JOELIE D' SA
D/O LATE JOSEPH J.P. D' SA
AGE 25 YEARS
RESPS.5-7 ARE REP. BY
MABEL JUSTINA D' SA (R4)
RESP.3 TO 7 ARE
R/AT DOTS DREAM,
CUNNINGHAM ROAD CROSS,
BANGALORE-560 052.
8. THE SPECIAL LAND ACQUISITION OFFICER,
OFFICE OF THE DEPUTY COMMISSIONER,
MANGALORE-575 001. ... RESPONDENTS
(By Sri.JAYARAMA BHATT, ADV.FOR R1(a-c), R2-R7)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH/ SET
ASIDE THE ORDER DTD.23.7.2016 AND 28.9.2016 IN EX.CASE
WP 59183/2016 & 60633/2016
3
NO.25/2011 PASSED BY II ADDL. SENIOR CIVIL JUDGE,
MANGALORE AND PRODUCED AS ANNEX-L AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Challenge in these writ petitions is to the orders dated 23.07.2016 & 28.09.2016 passed by the court below in Execution Case No.25/2011.
2. Petitioner is the Karnataka Housing Board (for short, 'KHB'). It is the beneficiary of the acquisitions in respect whereof, the claimants - respondents 1 to 7 have filed the Execution Case No.25/2011 seeking enforcement of the judgment and decree dated 12.11.2014 passed in M.F.A.No.10128/2010. The execution proceedings were instituted by the claimants as the entire decreetal amount was not paid/deposited.
3. By the impugned order dated 23.07.2016, the court below has referred to the note put up by the office based on the memo filed by both parties and after due verification, the court below has held that balance amount of Rs.1,52,52,536/- was payable WP 59183/2016 & 60633/2016 4 by the KHB. It has proceeded to issue arrest warrant against the judgment-debtor and in this regard for taking steps by the decree holder, the matter was adjourned to 26.08.2016. Ultimately, on 28.09.2016, the arrest warrant and the attachment warrant of movables have been ordered against the judgment-debtor. In this background, petitioner-KHB has approached this Court challenging these two orders.
4. I have heard the learned Counsel for both parties.
5. It is not in dispute that substantial amount to the tune of Rs.6,18,38,606/- has been paid/deposited by the petitioner - KHB so far. According to the decree holder as on 23.07.2016, the balance amount payable was Rs.1,52,52,536/-. This is evident from the memo of calculation filed by the decree holder.
6. Learned counsel for the petitioner - KHB submits that petitioner did not have fair and reasonable opportunity to address its arguments before the Court below.
7. The Court below has passed the impugned order directing arrest warrant and attachment of movables ignoring the fact that substantial amount had been already paid/deposited by the petitioner-KHB. In these circumstances, I am of the view WP 59183/2016 & 60633/2016 5 that the Executing Court has to provide fresh opportunity to both parties and pass an order as to what exactly is the amount still due and payable by the KHB. There was no justification for the Court below to issue arrest warrant or for that matter order of attachment of movables.
8. Hence, these writ petitions are allowed. Impugned orders are set aside. Both parties are directed to appear before the Executing Court on 30.01.2017. Whereupon, the Executing Court shall hear them and pass appropriate orders thereof within a period of one month thereafter.
9. It is brought to the notice of the Court by the counsel for petitioner-KHB that the Chairman of KHB has been arrayed as party - respondent, instead of arraying the authorities who were made parties in the reference resulting in the judgment and award passed by the Civil Court which is the subject matter of execution. There is substance in this contention.
10. Learned counsel for decree holder submits that decree holder will take necessary steps to carry out necessary corrections by substituting appropriate authorities as party WP 59183/2016 & 60633/2016 6 respondents/judgment debtors in the execution proceedings. This submission is placed on record.
Sd/-
JUDGE KK/PKS