IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.F.A.No.649/2006 BETWEEN:
SMT. A RATHNAMMA W/O LATE M M MUNIRAJU AGED ABOUT 55 YEARS No.3 M.K.PUTTALINGAIAH ROAD BANGALROE – 560 070.
(BY SRI A S MAHESHA, FOR SRI G B CHANDREGOWDA, ADVOCATE) AND:
1. SHIVAMMA W/O LATE GIDDE GOWDA AGED ABOUT 58 YEARS 2. MANJE GOWDA S/O LATE GIDDE GOWDA AGED ABOUT 38 YEARS 3. PUTTARAJU S/O LATE GIDDE GOWDA AGED ABOUT 36 YEARS 4. KANTHA RAJU S/O LATE GIDDE GOWDA AGED ABOUT 34 YEARS.
...APPELLANT 5. LATHA D/O LATE GIDDE GOWDA AGED ABOUT 29 YEARS RESPONDENT No.1 TO 5 RESIDING AT NELAGODU VILLAGE DUDDA HOBLI HASSAN TALUK HASSAN DISTRICT – 573 118.
6. M MURALIDHARA S/O LATE MUNIRAJU AGED ABOUT 29 YEARS RESIDING AT No.791 NEAR ANJANEYA SWAMY TEMPLE, AVALAHALLI ANJANAPURA POST BANGALORE – 560 062.
…RESPONDENTS (BY SRI G SURESH, ADVOCATE FOR R1-5 R-6-SERVED, UNREPRESENTED) THIS RFA IS FILED U/S 96 OF CPC AGAINST THE ORDER DATED:8.3.2006 PASSED ON I.A.No.3 IN EX.No.1463/2004 ON THE FILE OF SMALL CAUSES JUDGE (SCCH II) BANGALORE REJECTING I.A.No.3 FILED UNDER ORDER XXI RULE 58 R/W SECTION 151 OF CPC TO RECALL ORDER OF ATTACHMENT PASSED.
THIS RFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appeal is directed against the order dated 8/3/2006 passed on IA No.3 in Execution Petition No.1463/2004 by learned I Additional Small Causes (Senior Division) Judge, Bangalore, wherein, application filed under Order 21 Rule 58 read with Section 151 CPC by the appellant/applicant/objector came to be rejected.
2. In Ex.P.No.1463/2994, appellant/applicant/ objector filed I.A.NO.3 under Order 21 Rule 58 read with Section 151 CPC with her affidavit along with the application contending that the movable properties sought to be attached are in the house No.3, M.K.Puttalingaiah Road, Padmanabhanagar and the said house belongs to her and movable properties sought to be attached belong to her. The judgment debtor is not residing with her. His separate address is at Avalahalli, Bangalore, and he has no right or title over the said movable properties. She came to know about the attachment order on 17.11.2004 when the Amina of the Court and the Advocate for the decree holders came to her house and prays for allowing the same.
3. The decree holders filed objections to the said application.
4. Earlier after hearing the parties, the trial court rejected the said application on 3.6.2005 which was challenged by the applicant in RFA No.826/2005 which came to be allowed on 9.12.2005 by setting aside the order dated 3.6.2005 and remanding the matter with a direction to hold an enquiry and dispose of the same. Again, the impugned order came to be passed on 8.03.2006 rejecting IA No.3 which is challenged in this appeal.
5. Learned counsel Sri. A.S.Mahesh, for the appellant/applicant/objector would submit that the learned trial Judge has ordered for attachment of the movables morefully stated in the execution petition which are as under:
“TV, Refrigerator, tape recorder, VCD/VCP/DVD and other valuable movables available in the schedule premises shown by the decree holder including the vehicle bearing Registration No.KA.05.EB.3774”.
6. Learned counsel for appellant/objector would submit that learned trial Judge despite pleading the data over the said movable properties has ordered for an attachment and the objections raised by the applicant came to be rejected.
7. In this appeal, judgment debtor/respondent No.6 served and unrepresented.
8. On perusal of the facts, it is seen that Execution Petition No.1463/2004 is filed by one Shivamma and others to execute the award passed in MVC No.2610/2003, wherein award was passed for Rs.1,90,000/- and total decreetal amount as on the date of presenting the execution petition is Rs.2,00,523/-. Judgment Debtor is stated to be the son of the present appellant/applicant. The properties that are sought for attachment are already stated above.
9. It is to be noted that even in the case of death of a person under liability who has suffered decree, it is only his estate that is liable to be attached or proceeded for the purpose of recovering the amount for which he is legally liable. In the circumstances, a glance at the movable property would suggest that neither they are entitled nor those are having documents of title nor verifying affidavit is seen. The list is vague and bald. Just because the said movable properties are available they cannot be attached, more particularly, the manner in which they are described ipsofacto reflect that the description is bald and vague.
10. The very claim seeking attachment of the said properties is not tenable. It appears the learned trial Judge has lost the sight of the verification or insisting for the verifying affidavit. The order is untenable and cannot be sustained and it is liable to be set aside and it is done through allowing the appeal.
11. For the foregoing reasons, the appeal is allowed. The order dated 8/3/2006 passed on IA No.3 in Execution Petition No.1463/2004 by learned I Additional Small Causes (Senior Division) Judge, Bangalore, is set aside. Consequently, IA No.3 is allowed.
In case, any other mode is available, the rights of decree holders are kept open.
Sd/- JUDGE tsn*