Karnataka High Court
Shabirabi W/O Late Khajamodinsab vs Sharapunabi W/O Late Khajamodinsab on 1 July, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1ST DAY OF JULY 2020
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
W.P.Nos.105303-105307/2018 (GM-CPC)
BETWEEN:
1. SHABIRABI W/O LATE KHAJAMODINSAB
AGED ABOUT: 53 YEARS,
R/O: 25TH WARD, DHOBI STREET,
COUL BAZAR, DIST: BALLARI.
2. SHABANA D/O LATE KHAJA MODINSAB
W/O S.M. BASHA, AGED ABOUT: 39 YEARS,
OCC: S.D.A. THASHILDAR OFFICE,
DC COMPOUND, BALLARI DISTRICT.
.. PETITIONERS
(BY SRI.RAVI HEGDE, ADV.)
AND:
1. SHARAPUNABI W/O LATE KHAJAMODINSAB
AGED ABOUT: 51 YEARS,
R/O: 4TH CROSS, SHIVAJINAGAR, HAVERI-581110.
2. THE THASILDAR
HUVINAHADAGALI TALUK,
BALLARI DISTRICT-583101.
3. THE DEPUTY COMMISSIONER
BALLARI DISTRICT, BALLARI-583101.
4. PARVIN D/O LATE KHAJAMODINSAB
W/O JAVEED, AGED ABOUT: 24 YEARS,
R/O: HOSAPETE, BALLARI DISTRICT.
.. RESPONDENTS
(BY SRI.M.H.PATIL, & SRI.HARSHAWARDHAN M.PATIL, ADVS.)
2
THESE PETITIONS ARE FILED UNDER ARTICLE 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO A) ISSUE WRIT OF
CERTIORARI OR ANY OTHER WRIT OR ORDER QUASHING THE
ORDERS PASSED ON IA NO.XI AND XII (COMMON ORDER) DATED
13.07.2016 AT ANNEXURE-K AND ORDER PASSED ON IA NO.XIII AND
XIV DATED 11.12.2017 AT ANNEXURE-M AND M.1 AND ALSO ORDER
PASSED DATED 06.08.2018, VIDE ANNEXURE-N, ISSUING ARREST
NOTICE TO THE PETITIONERS IN EXECUTION NO.11/2010, ALL
ORDER ARE PASSED ON THE FILE OF THE CIVIL JUDGE AND JMFC,
HADAGALI AND B) CONSEQUENT UPON QUASHING THE AFORESAID
ORDERS, DIRECT THE RESPONDENT NO.1 TO REFUND THE ENTIRE
AMOUNT OF PENSION DRAWN BY HER WITH INTEREST AT 12% TO
THE PETITIONER NO.1.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petitions are filed by the petitioners challenging the orders passed by the Civil Judge and JMFC, Hadagali on I.A.Nos.11, 12, 13 and 14 in E.X.No.11/2010
2. Brief facts leading to this top noted writ petitions are as under:
Respondent No.1 along with her children filed a suit in O.S.No.28/2000 on the file of the Civil Judge (Jr.Dn.) and JMFC, Hadagali seeking the relief of declaration that she 3 being the second wife alone is entitled to receive the benefits of deceased Khaja Modinsab who died on 16.07.1999. The present petitioners on receipt of summons contested the proceedings by filing written statement. The Trial Court decreed the suit. The present petitioners being aggrieved by the judgment and decree passed in O.S.No.28/2000 preferred an appeal in R.A.No.1/2004. The appellate Court dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the concurrent findings, the petitioners herein preferred regular second appeal before this Court in RSA No.2333/2005. The petitioners have placed on record the judgment passed by this Court in RSA No.2333/2005 as per Annexure-B. This Court was pleased to admit the appeal and thereafter proceeded to hear the matter and accordingly, allowed the appeal by setting aside the judgment and decree passed by the Courts below and consequently dismissed the suit of the respondents in O.S.No.28/2000. This Court while allowing the appeal 4 recorded a categorical finding that respondent Nos.1 to 3 cannot claim pensionary benefits. Accordingly, the second appeal was allowed. However, this Court was of the view that respondent Nos.1 to 3 are entitled for service benefits.
However, the said grievance needs to be adjudicated under personal law governed by the personal law of the parties.
3. It appears respondent Nos.1 to 3 have filed execution petition by relying on the judgment and decree passed in O.S.No.28/2000. Respondent Nos.1 to 3 were also able to withdraw half of the pensionary amount by relying on the judgment and decree passed in O.S.No.28/2000. In this background, it appears respondents filed an application in I.A.No.11 seeking attachment of salary of petitioner No.2 before this Court. I.A.No.13 was filed by the respondents to recall the orders dated 06.06.2015 and 27.02.2016 wherein the executing Court had rejected the claim of respondent Nos.1 to 3 seeking withdrawal of half of the pension amount. 5 I.A.No.14 was filed by respondent Nos.1 to 3 alleging disobedience by the manager of the bank who was not party to the execution petition.
4. The executing Court has allowed I.A.No.11 and thereby ordered attachment of salary of petitioner No.2. The executing Court has dismissed I.A.No.13 and thereby refused to interfere with the order passed on earlier occasion dated 06.06.2015 and 27.02.2016 wherein executing Court held that they are not entitled to withdraw 50% of the pensionary amount. But however, the executing Court allowed I.A.No.14 and thereby permitted the present respondents to receive half portion of the pensionary amount, which is contrary to the order passed on I.A.No.13. The executing Court directed the manager to transfer half share of the pension amount of petitioner No.1 within four months. The material on record also indicates that executing Court later realized that such direction could not have been issued to the bank manager 6 to transfer 50% of the amount of petitioner No.1 in favour of respondent No.1. The executing Court suo-moto as per impugned order vide Annexure-N dated 06.08.2018 passed one more order issuing arrest warrant against petitioner No.1 for having failed to deposit 50% of the amount. It is forthcoming from the records that the executing Court had in fact directed the branch manager to transfer the amount, but under impugned order vide Annexure-N an arrest warrant was issued against the present petitioner though there is no specific direction against the petitioner to deposit 50% in favour of the respondent.
5. Heard the learned counsel for the petitioners and learned counsel for the respondents.
6. Though multiple orders are questioned before this Court, I am of the view that controversy revolves under narrow compass. It is unfortunate that the executing Court having taken judicial note of the judgment and decree passed in RSA No.2333/2005 has ventured into 7 passing several orders which were not called for and unwarranted. This Court has set aside the judgment and decree passed in O.S.No.28/2000 by allowing the second appeal in RSA No.2333/2005. Though the judgment and decree passed by this Court was placed on record and it was brought to the notice of the executing Court, I am finding it difficult to accept the jurisdiction exercised by the executing Court. Admittedly, execution petition was filed on the basis of the judgment and decree passed by the Trial Court in O.S.No.28/2000. When the said judgment and decree was set aside by this Court in RSA No.2333/2005, there was no executable decree available for the executing Court to assume jurisdiction and pass several orders. The suit was filed by respondent Nos.1 to 3 laying a claim in respect of pensionary benefits. This Court by allowing the second appeal in RSA No.2333/2005 has recorded a categorical finding that respondent Nos.1 to 3 have no semblance of right to claim pensionary benefits and accordingly has proceeded to dismiss the suit. When the 8 suit was dismissed and the same was brought to the notice of the executing Court, the executing Court ought to have closed the execution proceedings in the light of the judgment and decree passed by this Court in RSA No.2333/2005.
7. In this background, if the orders passed by the executing Court passing attachment of salary of petitioner No.2, I am of the view that this order is without jurisdiction and is palpably erroneous and suffers from serious material irregularity. The executing Court having refused to recall the orders dated 06.06.2015 and 27.02.2016 wherein the claim of respondent Nos.1 to 3 to withdraw 50% of the amount was rejected, however, allowed I.A.No.14 directing the branch manager who was not a party to the execution petition to transfer the half share of the pension amount to respondent No.1. The order passed on I.A.No.14 is directly conflict with the order passed on I.A.No.13. The executing Court does not stop here. Having passed an 9 order on I.A.No.14 directing the branch manager to transfer half share of the pension amount, suo moto passed one more order on 06.08.2018 wherein an arrest warrant was issued against petitioner No.1 herein. When there was no direction for petitioner No.1 to deposit the amount, the order under challenge suffers from perversity and also infirmities. The executing Court has shown scant respect to the judgment and decree passed by this Court. It is forthcoming from the records that it was well within the knowledge of the executing Court that this Court in fact allowed RSA No.2333/2005 and the judgment and decree passed by the trial Court in O.S.No.28/2000 was set aside. I am of the view that the orders passed by the executing Court on I.A.Nos.11, 12, 13 and 14 and order dated 06.08.2018 are one without jurisdiction and they are liable to be quashed by this Court.
8. At this juncture, learned counsel for the petitioners would vehemently argue and contend before this Court that, on account of illegal orders passed by the 10 executing Court, respondent No.1 has ultimately received 50% of the pensionary benefits. However, having regard to the status of the parties, learned counsel for the petitioner Sri.Ravi Hegde in all fairness would request this Court to put quietus to the lis and in the interest of both the parties, though petitioners are entitled to seek restitution of amount, however he would submit to this Court that respondent No.1 being a second wife would be put to irreparable loss in the event petitioners seek restitution. In this background, he would only request this Court to quash the proceedings pending in the execution petition on the ground of maintainability.
9. I have taken note of the submission of the learned counsel for the petitioners and in view of above said discussions, I am of the view that execution proceedings pending in Ex.11/2010 are not at all maintainable in the light of the judgment rendered by this Court in RSA No.2333/2005. Accordingly, by holding that the execution petition is not maintainable, the impugned 11 orders passed by the executing Court on I.A.Nos.11, 12, 13, 14 and impugned order dated 06.08.2018 as per Annexure-N are quashed with a direction to the executing Court to close the execution petition.
10. At this juncture, learned counsel for respondent Nos.1 to 3 submits that they have filed review petition before this Court seeking review of the order passed by this Court in RSA No.2333/2005. In the event, they succeed, they are entitled to seek reopening of the execution petition.
11. Accordingly, the writ petitions are allowed. The impugned orders passed by the executing Court on I.A.Nos.11, 12, 13, 14 and impugned order dated 06.08.2018 as per Annexure-N are quashed with a direction to the executing Court to close the execution petition.
Sd/-
JUDGE MBS/-