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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER 2016
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION No.35928 OF 2016(GM-CPC)
BETWEEN :
Damodar Shenoy, S/o P Devdas Shenoy, Aged about 46 years, Proprietor, Jairam Commercials Merchant & Commission Agent, R/at Door No.KMC XXIII 1165, Ground Floor, Near S V V Temple, Railway Station, Kasaragod with its Head office at: Door No.10-19-944, Budar, Port Road, Kasaba Village, Mangalore – 575 001.
... Petitioner
(By Ms.Sneha Shastry.G, Advocate for Sri G.Balakrishna Shastry, Advocate)
AND:
M/s G.N.H. Kini, A registered partnership firm, Rep. by its Partner Mr.G.Ramdas Kini, Aged about 50 years, S/o G Rathnakar Kini, R/at Port Road, Dana Bunder, Mangalore.
…Respondent
(By Sri M.Sudhakar Pai, Advocate)
2 This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 13.4.2016 E.C.No.148/2014 on the file of the Prl. Civil Judge & JMFC, Mangaluru, DK, vide Annexure - A and etc.
This writ petition, coming on for orders, this day, the Court made the following:
O R D E R
The petitioner – judgment debtor has called into question the Execution Court’s order, dated 13.04.2016 (Annexure-A) issuing arrest warrant against him. This Court, by its order, dated 19.07.2016 granted interim stay subject to the petitioner depositing Rs.40,000/- in two weeks’ time. Pursuant to the said interim order, not even a pai is deposited. On the other hand, I.A.No.1/2016 is filed seeking extension of time for depositing the said sum of Rs.40,000/-. On being asked as to why the interim order, dated 19.07.2016 is not at all complied with, the petitioner’s side went on seeking time. Ultimately, the resultant position is that the petitioner has not deposited Rs.40,000/- or any fraction of the said amount.
At this juncture, the petitioner’s learned advocate submits that she is not pressing I.A.No.1/2016. I.A.No.1/2016 is dismissed as not pressed.
Ms.Sneha Shastry, learned counsel for the petitioner submits that the petitioner has no malafide intention of defeating the decree which the respondent has obtained. She submits that the petitioner’s intentions are bonafide.
Sri M.Sudhakar Pai, learned counsel for the respondent submits that it is after issuing the notice and holding the enquiry that the impugned arrest warrant is issued.
The submissions of the learned counsel have received my thoughtful consideration. In deciding this petition, the following factors weigh with the Court:
(i) The suit for recovery of money is filed in 2010 and the decree is obtained in 2012. Even after four years of the obtaining of the decree, the respondent is not in a position to enjoy the fruits of the decree.
(ii) The decree obtained by the respondent has attained the finality. It is not in dispute that the petitioner filed R.A.No.72/2012 against the Trial Court’s judgment and decree. The said appeal came to be dismissed on 27.06.2014. Thus, the decree passed in O.S.No.582/2010 has attained the finality.
(iii) I do not find any procedural irregularities in the execution proceedings. The petitioner is put on notice and afforded with an opportunity to take part in the enquiry. That the petitioner did not take part in the enquiry is a different aspect of the matter.
(iv) The petitioner has not produced any documents like income-tax returns to show that he has indeed incurred the losses, as contended by him before the Execution Court.
(v) As noticed already, the petitioner has not paid even a fraction of Rs.40,000/- directed to be deposited with this Court while granting the interim stay on 19.07.2016.
For all the aforesaid reasons, I dismiss this petition. No order as to costs.
Sd/- JUDGE
Cm/-