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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2016 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION No.16363 OF 2016 (GM-CPC)
BETWEEN:
JAYANTH SANIL S/O LATE MENKA POOJARY AGED ABOUT 45 YEARS SHARADA RESIDENCY, 4TH FLOOR CITY CENTER, BALMATTA ROAD D.K.DIST – 575 001 ... PETITIONER
(BY SRI S RAJASHEKAR, ADVOCATE)
AND:
K VISHWANATH AMIN
S/O K POOVAPPA
AGED ABOUT 73 YEARS
R/O BARDOTA
KANKANADY – PUMPWELL
MANGALORE, D.K.DIST – 575001
JAYALAXMI V. AMIN
W/O. VISHWANATH AMIN
AGED ABOUT 70 YEARS
R/AT BARDOTA
KANKANADY – PUMPWELL
MANGALORE, D.K.DIST -575001 …..RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 9.3.2016 PASED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM MANGALORE D.K. IN EXECUTION PETITION NO.127 OF 2015 VIDE ANNEX-A AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
Heard Sri S Rajashekar, learned counsel appearing for the petitioner and perused the records.
Petitioner is Judgment debtor in Ex.Petition.No.127/2015 and said proceedings is pending on the file of Principal Senior Civil Judge and CJM, Mangalore, DK. Respondents/decree holders having obtained a decree on 17.11.2014 passed in O.S.No.107/2013 ignited execution proceedings by filing said execution petition i.e., Ex.No.127/2015. The prayer sought for in the execution petition is to deliver possession and to arrest and detain judgment debtor who is writ petitioner in civil prison. They have also filed an application under Order 39 Rules 37 and 38 of CPC.
Undisputedly, possession came to be delivered and on account of judgment debtor appearing before Executing Court and contending that he has no means to pay decreetal amount, said Court has ordered for enquiry being conducting to ascertain means of judgment debtor.
In order to prove that judgment debtor has means to pay decreetal amount, decree holder has examined the Jurisdictional Income Tax Officer where judgment debtor carries business as PW.1 and got marked Exs.P1 to P3. The said witness PW.1 has stated that she has been working in the income tax department for past 10 years and working at Mangaluru from past 02 years (preceding date of tendering evidence). She has produced the income tax returns of the judgment debtor for the year 2014-2015 and 2015-2016 which is said to be marked as Exs.P2 and P3. Executing Court having perused the same has held that judgment debtor has declared his income at Rs.10,71,326/- and has paid income tax of Rs.4,290/- as per the income tax returns for the year 2015- 2016 as per Ex.P3 judgment debtor has declared his income at Rs.11,89,953/- and has also paid tax. In the light of positive evidence being available on record, Executing Court has rightly arrived at a conclusion that decree holder has discharged the burden and proved that judgment debtor has sufficient means to discharge liability of decree holder. In that view of the matter contention of the judgment debtor that he has no sufficient means cannot be accepted. In the light of said evidence available on record, executing court has rejected the claim of
judgment debtor and has ordered for issuance of arrest warrant against judgment debtor by order dated 9.03.2016 Annexure-A.
In view of categorical finding recorded by Executing Court to effect judgment debtor has sufficient means to pay decreetal amount which undisputedly was after conducting detailed enquiry and on evaluating evidence tendered by judgment debtor, no infirmity can be found in the impugned order.
Writ petition being devoid of merits, is hereby dismissed.
Ordered accordingly.
SD/- JUDGE