IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST 2017 BEFORE THE HON’BLE MR. JUSTICE H.G.RAMESH WRIT PETITION NO.37311/2017 (GM-CPC) BETWEEN:
MARCEL MONTEIRO AGED ABOUT 71 YEARS S/O MAXIM MONTEIRO ‘KONSPEE’ OPPOSITE PLAMA LABORATORIES, BAIKAMPADY MANGALORE -575 002 ... PETITIONER (BY SRI H.PAVANACHANDRA SHETTY, ADVOCATE) AND:
G.R.SHET AGED ABOUT 76 YEARS PROPRIETOR, M/S SHET & CO. LICENSED MONEY LENDER K.S.R.ROAD MANGALORE – 575 002 ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 5.7.2017 ON I.A.VII, PASSED BY THE COURT OF 2ND ADDL. CIVIL JUDGE, MANGALORE, D.K, IN EXECUTION NO.98/2008 AT ANNEXURE-A AND ALLOW THIS W.P. WITH COSTS.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R H.G.RAMESH, J. (Oral):
1. This writ petition is by judgment debtor No.2 and is directed against an interlocutory order dated 05.07.2017 passed by the Executing Court in Execution case No.98/2008 dismissing his application. The application was filed to dismiss the execution petition alleging that the decree is fully satisfied.
2. I have heard learned Counsel appearing for the petitioner and perused the impugned order. It is relevant to refer to the following reasoning of the Executing Court:
“Heard both sides.
It is clear that this petition is filed for recovery of amount. The judgment debtor has filed memo of calculation reporting the payment made by them. The same was opposed by the decree holder. Even though that memo of calculation was prepared by the authorized auditor of the judgment debtor, but on perusal of it, it shows that as on 01.08.2016 the amount due is Rs.7,09,918/- and out of this amount it is stated that already a sum of Rs.4,50,000/- was paid before JMFC Court which admittedly not received by the decree holder. Even the judgment debtor has not produced any document to show that a sum of Rs.4,50,000/- was paid towards this execution petition only. It may be for some other transaction. When the decree holder receives that amount then he will acknowledge the same. The judgment debtor have not assigned any reason as to what make them to deposit a sum of Rs.4,50,000/- before JMFC Court and why not before this court. Further a sum of Rs.2,10,000/- was set to be paid by the judgment debtor to the decree holder and even there is no such endorsement by the decree holder.
Hence in absence of this as per the calculation of the judgment debtor a sum of Rs.7,09,918/- is liable to be payable by the judgment debtor. Therefore the petition cannot be closed ”
3. I find no error in the above reasoning of the executing Court to warrant interference. The writ petition is accordingly dismissed.
Petition dismissed.
Sd/- JUDGE KSR