IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.27257 OF 2018 (GM-CPC) BETWEEN B.L. PREMACHANDRA S/O LATE K. LINGAPPA AGED ABOUT 62 YEARS RESIDING AT DOOR NO.260 2ND FLOOR, II MAIN, 4TH CROSS I BLOCK, RAMAKRISHNA NAGARA MYSURU-571119. … PETITIONER (BY SRI. V.R.PRASANNA, ADVOCATE FOR SRI. NIKHILESH RAO M, ADVOCATE) AND G.NAGENDRA AGED ABOUT 54 YEARS RESIDING AT DOOR NO.1076 II MAIN ROAD, 1ST STAGE SRIRAMPURA, VIVEKANANDA NAGARA CHAMARAJA MOHALLA MYSURU-571119. … RESPONDENT (BY SRI. N.KUMAR, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 24.04.2018 AT ANNEXURE-A AND ANY ACTION TAKEN IN PURSUANCE OF THE SAID ORDER, PASSED BY THE HON’BLE II ADDITIONAL, SR. CIVIL JUDGE, MYSURU IN EX.NO.488/2017 AND ETC., THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the judgment debtor in Execution Petition No.488/2017 is invoking the writ jurisdiction of this Court for assailing the order dated 24.04.2018, a copy whereof is at Annexure-A, whereby he is ordered to be committed to civil prison for non-compliance of decree.
2. After service of notice, the respondent/decree holder having entered appearance through his counsel, resists the Writ Petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of a considered opinion that the matter does not merit indulgence at the hands of writ Court for the following reasons:
(a) In a suit for specific performance, the secondary relief i.e., refund of money advanced under the subject agreement of sale was directed; the decree having been put in execution, the petitioner has been ordered to be committed to civil prison since he has not refunded the amount that was taken by him under the agreement in question. The stand of the petitioner is unconscionable to say the least, inasmuch as, he wants to retain the property that was agreed to be sold and the consideration that was paid to him under the subject Agreement to Sell; this is too much to say the least;
(b) the contention of the petitioner that the case having been advanced, a direction for arrest and detention could not have been issued, is not supported by any legal literature; if execution is advanced, it is certainly not for doing pooja but for effecting the execution process and therefore, this contention is not acceptable; and (c) the contention of the petitioner that ordinarily, in execution of money decrees, the arrest & detention should not be resorted to in view of Jolly George Verghese Vs. Bank of Cochin, AIR 1980 SC 470, again does not come to his rescue since such a ratio does not emerge from the said decision which involved a case of poverty of Judgment Debtor unlike in the present case inasmuch as the petitioner has property or at least a share in the property.
Hence, the writ petition being devoid of merits, is dismissed.
No costs.
Sd/- JUDGE NR/-