Loading judgment…
No AI summary yet for this case.
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER 2015
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO.47960/2012 (GM-CPC)
Between:
Sri. M.Uday, Aged about 54 years, S/o late Sri. Chandrashekar, R/at No. 463, 65th Cross, 5th Block, Rajajinagar, Bangalore – 560 010. …Petitioner
(By Sri.B.N.Jayadeva, Adv.)
And:
Smt. Y.Parvathamma, Aged about 44 years, W/o Sri. Y.Reddaiah, R/at No.40, 1st Cross, Chowdaiah Block, R.T.Nagar, Bangalore – 560 032. …Respondent
(By Sri. V.A.Mohangangam, Adv.)
This Writ Petition is filed under Articles 226 & 227 of the Constitution of India praying to call for the records in Ex.case No. 285/2012 on the file of the 14th Additional City Civil Judge, Bangalore and quash the order dated 26.11.2012 passed therein on IA No.2 at Annex-G directing issue of warrant of attachment with
W.P.NO.47960/2012 2 police help and may be further pleased to reject the said application in IA No. 2 at Annx-E.
This Writ Petition coming on for Order this day, the court made the following:
O R D E R
This petition is directed against the order dated 26.11.2012 allowing respondent - decree holder’s I.A.II under Order 21 Rule 43 CPC and directing issue of an attachment warrant of movables belonging to the petitioner - judgment debtor in Execution Case No.285/12 on the file of XIV Additional City Civil Judge, Bengaluru.
By order dated 16.1.2015, petitioner when directed to deposit Rs.1 Lakh was complied with and thereafter respondent decree holder on being permitted to withdraw the same has done so.
Petitioner – tenant of the respondent having occupied the immovable property belonging to the respondent, suffered a preliminary decree in O.S.No.7684/08 on 24.10.2011 of the XIV Additional
W.P.NO.47960/2012 3 City Civil Judge, Bengaluru (CCH-28) entitling the respondent to vacant possession of the suit schedule property from the petitioner arraigned as defendant, who in turn was directed to handover possession within three months from the date of the decree and also pay Rs.1,80,000/- towards arrears of rent, in addition to directing a separate enquiry regarding mesne profits under Order 20 Rule 12 CPC.
The respondent – decree holder filed FDP No.222/11 inter alia staking a claim for a total sum of Rs.24 Lakhs and after deducting the caution deposit of Rs.5 Lakhs, claimed balance of Rs.19 Lakhs, for the period from September, 2008 to December, 2011. During the pendency of that proceedings, respondent filed Execution Case No.285/12 claiming Rs.2,36,714/- being the decreetal amount of Rs.1,80,000/- and cost of Rs.56,714/-. That Execution petition was opposed by filing statement of objections of the petitioner – judgment debtor, inter alia, advancing two contentions, one that Rs.94,560/- was deducted from out of arrears of rent
W.P.NO.47960/2012 4 and remitted to Income Tax Department of the Government of India which issued Form-16A enclosed to the statement of objection and two, that Rs.5 Lakhs admittedly was in deposit with the judgment debtor from out of which the decreetal amount could be satisfied in short sought giving credit to the aforesaid amount and to refund the balance to the petitioner.
The Executing Court by the order impugned, recorded a finding that there was not a whisper about the alleged liability of the decree holder and in the objection statement the judgment debtor did not mention any amount paid by him to the decree holder and in the absence of documents, rejected the objections of the judgment debtor and directed issue of attachment warrant of moveable properties.
Heard learned counsel for the parties. Sri.B.N.Jayadeva, learned counsel for the petitioner - judgment debtor submits that Form – 16A for having deposited Rs.94,560/- as Tax Deduction at source for the period from 1.4.2008 to 31.3.2009 from out of
W.P.NO.47960/2012 5 Rs.6,12,000/- paid to respondent decree holder towards rent, a remittance to the Income Tax Department on 25.4.2009 led to issue Form – 16A. According to the learned counsel that Form was made available to the decree holder during the pendency of the suit. Learned counsel points to the memorandum of petition in the Final Decree Proceeding to submit that there is a clear admission of Rs.5 Lakhs in the credit of the decree holder of which a deduction is effected against the claim for mesne profits and therefore the Executing Court was not justified in declining to accept the plea of judgment debtor that there was material in support of monies paid to the decree holder.
Sri.V.A.Mohanrangam, learned counsel for the decree holder submits that his client was not aware of the judgment debtor having deducted Tax at source and remitted it to the Income Tax Department and issue of Form-16A in a sum of Rs.94,560/- for the financial year 1.4.2008 to 31.3.2009. Had that been made available to the decree holder, it is submitted, he could have claimed
W.P.NO.47960/2012 6 a set off in the returns filed for that year. Having not done so, that cannot be a money paid to the credit of the decree holder.
As regards Rs.5 Lakhs being security deposit, is an admitted fact as can be evident from the pleading in the Final Decree Proceedings, in view of the set off claimed against possible claims for mesne profit.
The trial court instead of extending petitioner – judgment debtor an opportunity to place on record the materials for a meaningful conclusion to be drawn on I.A.2 under Order 21 Rule 43 of CPC before issuing a warrant for attachment of movables of judgment debtor, fell in error in concluding that there was no material on record. The order impugned suffers from an error apparent on the face of the record calling for interference.
Rs.1 Lakh which was deposited by the judgment debtor since withdrawn by the decree holder
W.P.NO.47960/2012 7 by order of this Court, should be accounted for by the decree holder in the Final Decree Proceedings.
The order impugned is set aside and the proceeding remitted for consideration afresh and to pass orders after extending reasonable opportunity of hearing to the parties having regard to the observations made supra. The judgment debtor or the decree holder, if so advised, may make necessary application to club execution case and Final Decree Proceedings for a common trial.
In the order dated 16.1.2015, it is recorded thus: “In any event, damages cannot be less than the admitted rents and therefore, petitioner cannot wriggle out of payment of the admitted rents for the period he was in possession”
This observation is subject to the decision in the Final Decree Proceeding. I.A.1/15 is unnecessary and rejected.
W.P.NO.47960/2012 8 Report of the Registrar General is accepted. I.A.2/15 and 3/15 are rejected as office objections are not complied with.
Sd/- JUDGE
Rs/* Ct-vr