IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8th DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.50263 OF 2014 (GM - CPC) BETWEEN:
C.S.MURTHY, S/O SRI.SHETTY GOWDA, AGED ABOUT 47 YEARS, RESIDING AT NO.995, HMT LAYOUT, MRS GOWDA EXTENTION, NAGASANDRA MAIN ROAD, BANGALORE – 73.
(BY MR.DILLI RAJAN, ADV. FOR MR.SRI.SUBBA REDDY K.N., ADV.,) AND:
H.SHAMACHAR, S/O SRI.LATE HANUMANTHA CHAR, AGED ABOUT 57 YEARS, RESIDING AT NO.463, II BLOCK, MUNIYAPPA BUILDING, PEENYA I STAGE – 560 058, PEENYA, BENGALURU.
… PETITIONER … RESPONDENT (BY MR.THARANATHA SHETTY K, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 28.10.2014 PASSED BY THE LEARNED JUDGE ON THE APPLICATION FILED UNDER ORDER XXI RULE 40[2] READ WITH SECTION 151 OF CPC IN THE EXECUTION PROCEEDINGS EX.NO.2766/2012 VIDE ANNEXURE – E ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri. Subba Reddy K.N, learned counsel for the petitioner.
None for respondent.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
2. In this petition under Article 227 of the Constitution of India, the petitioner inter alia has assailed the validity of the order dated 28/10/2014 passed by the learned Civil Judge on the application filed under Order XXI Rule 40(2) r/w Section 151 of C.P.C, by which, the petitioner has been directed to be committed to civil prison for a period of 30 days.
3. When the matter was taken up to day, learned counsel for the petitioner submitted that a decree for injunction was passed against the petitioner. Thereafter, in execution proceedings, notice was ordered for appearance of the petitioner. Petitioner appeared before the executing Court and filed an application under Order XXI Rule 40(2) of C.P.C. However, the aforesaid application has been rejected by the executing Court by holding that an enquiry has already been held and the application filed by the petitioner under XXI Rule 40 of C.P.C. is not tenable and has directed that the petitioner be committed to civil prison for a period of 30 days. It is further submitted that the aforesaid order is in violation of the provisions of Order XXI Rule 40(2) of C.P.C.
4. I have considered the submissions made by learned counsel for the petitioner and perused the records.
5. The impugned order reads as under;
“ JDR is produced Sri. N.S. filed vakalath for JDR And application under order 21 Rule 40 read with section 151 C.P.C. Heard both sides on the application. The court has already held enquiry and issued arrest warrant. Therefore, the application filed U/o 21 r 40 rw S 151 C.P.C. is not tenable. Hence application is rejected. JDR is committed to civil prison for a period of 30 days.
Issue committal warrant if required batter is paid.
Call on 27/11 “ 5. From the perusal of the impugned order, it is evident that the order is a non-speaking order and after appearance of the petitioner in execution proceeding, no enquiry as envisaged under Order XXI Rule 40 of C.P.C. has been held. The impugned order has been passed in violation of the mandate contained in order XXI Rule 40 of the C.P.C. The impugned order therefore cannot be sustained in the eye of law and it is accordingly quashed.
The executing Court is directed to hold an enquiry and to decide the application preferred by the petitioner under Order XXI Rule 40 of C.P.C. by a speaking order and thereafter deal with the matter in accordance with law.
6. Accordingly, the petition is disposed of.
Msu Sd/- JUDGE