IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT C.R.P. No.311/2019 BETWEEN:
1. MOHAMMED AKEEL S/O ABDUL KARIM SAB AGED ABOUT 44 YEARS 2. SHABINABANU W/O MOHAMMED AKHEEL AGED ABOUT 35 YEARS BOTH ARE RESIDING WARD NO.08/08 SEEGEBAGI BADAVANE BHADRAVATHI, PIN-577301.
(BY SRI.VARADARAJ R HAVALDHAR, ADV.) AND:
... PETITIONERS A. ASHOK KUMAR S/O ANNA MALAI AGED ABOUT 43 YEARS R/O H.S.H-11, INFRONT OF ST.CHARLE’S CONVENT HUTHA COLONY BHADRAVATHI, PIN-577301. ... RESPONDENT (BY SRI.T.S. VENKATESH, ADV.) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST ORDER DATED 08.03.2019 PASSED IN EX.NO.63/2018 ON THE FILE OF THE PRL.SENIOR CIVIL JUDGE AND JMFC BHADRAVATHI DIRECTING THE PETITIONER HEREIN TO PAY THE EXECUTION PEITION AMOUNT TO THE RESPONDENT HEREIN AS THEY HAVE MEANS TO PAY.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners are before this Court under Section 115 of the Code of Civil Procedure, assailing the order dated 08.03.2019 passed in Ex. Case No.63/2018 on the file of the Principal Senior Civil Judge and JMFC, Bhadravathi.
2. The Ex.Case No.63/2018 was filed to execute the judgment and decree dated 24.03.2018 passed in O.S.No.43/2016 whereby the defendants were directed to refund a sum of Rs.10,00,000/- with interest at the rate of 7% p.a., to the plaintiff which was received as advance consideration in pursuance of sale agreement dated 03.05.2014. The petitioners are judgment debtors who filed objections to the Execution Petition and pleaded no means to pay the decretal amount and thus prayed to dismiss the execution petition.
3. The decree holder examined himself as P.W.1 and also examined one witness as P.W.2 and got marked the documents as Ex.P1 and Ex.P2, whereas no evidence was adduced on behalf of the judgment debtors. However Ex.R1 was marked through cross-examination of P.W.1.
4. After enquiry and on hearing the learned counsel for the parties, the Executing Court under the impugned order rejected the objections filed by the judgment debtors/petitioners herein and directed the judgment debtors to pay the execution petition amount to the decree holder holding that the judgment debtors have means to pay the decretal amount. Aggrieved by the same, the judgment debtors are before this Court, in this revision petition.
5. Heard the learned counsel for the petitioners/judgment debtors and learned counsel for the respondent/decree holder. Perused the material on record.
6. Learned counsel for the petitioners would submit that the Executing Court committed an error in rejecting the objections filed by the judgment debtors and directing them to pay the execution petition amount. It is his submission that on earlier occasion, the decree holder had filed I.A.No.1 under Order 21 Rule 54(1) of CPC to attach the schedule property which was rejected and that order had become final. The decree holder had not challenged the said order. Therefore, now he cannot seek for attachment of the same property to realize the decretal amount. Further, learned counsel reiterates that the judgment debtors had no means to pay back the decretal amount and prayed for allowing the petition.
7. Per contra, learned counsel for the respondent/ decree holder submits that the judgment debtors raised one or the other ground, only to defeat the valuable decree passed by the Court. It is his submission that the decree holder is not able to realize the fruits of the decree, even to this date. It is his further submission that the defendants alienated the suit schedule property on 17.04.2018 by executing cancellation of gift deed, subsequent to the decree, which shows the conduct and intention of the judgment debtors. It is also his submission that the judgment debtors have means to pay the decretal amount, but they are deliberately dodging to comply with the decree. Thus, prays for dismissal of the revision petition.
8. On hearing the learned counsel for the parties and on perusal of the material on record, the only point which falls for consideration is whether the Executing Court is justified in rejecting the objections raised by the judgment debtors.
9. Answer to the above point is in the affirmative for the following reasons:
The respondent/decree holder had filed O.S.No.43/2016 for specific performance of agreement dated 03.05.2014. The suit came to be decreed by the judgment and decree dated 24.03.2018 wherein the respondent/decree holder’s prayer for specific performance was dismissed, but it was decreed to refund the advance consideration of Rs.10,00,000/- with interest at the rate of 7% p.a., to the plaintiff/ decree holder. The respondent/decree holder filed Execution Petition No.63/2018 to execute the said decree for refund of Rs.10,00,000/- with interest at 7% p.a. The judgment debtors appeared in the Execution case and filed their objections contending that they have no means to pay the decretal amount and sought for dismissal of the execution petition.
10. The Executing Court rightly dismissed the objections raised by the judgment debtors/petitioners herein and directed them to pay the execution petition amount to the decree holder. I find no jurisdictional or material irregularity in the said order. The revisional jurisdiction is very limited and only if the petitioners point out any jurisdictional or material irregularity, then only the Court can interfere with the orders. In the instant case, the petitioners are not able to point out any jurisdictional or material irregularity in the order passed by the trial Court. It is apparent that the judgment debtors are deliberately avoiding the compliance of decree with an intention to defeat the fruits of the decree. The petitioners appeared to have alienated the suit schedule property on 17.04.2018, subsequent to judgment and decree passed in the suit, which would show the intention and conduct of the judgment debtors. Thus, I am of the view that the Executing Court is justified in rejecting the objections raised by the judgment debtors and rightly directed them to pay the execution petition amount under the impugned order. Accordingly, the revision petition is dismissed.
Sd/- JUDGE mpk/-* CT:bms