R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.17407/2015 (GM-CPC) BETWEEN:
S.T.Chandregowda, S/o Late Thimmegowda, Aged 55 years, Excise Inspector, Office of the Deputy Commissioner, Near RTO Office, Chikkamagaluru, Now Working at:
Office of the Deputy Commissioner Of Excise, Hassan – 573115.
… Petitioner (By Sri. K.Ravishankar, Advocate) AND:
1. Smt.D.Sumithra, W/o S.T.Chandre Gowda, Aged 50 years, Resident of Baktharavalli, Sindhigere Post, Lakya Hobli, Chikkamagalur District.
Presently residing at C/o Ningappa, Retd., Officer, Irrigation Dept., Near Saraswathi Temple, Sangameshwara Extension, Hassan – 573115.
2. The Manager, Karnataka Bank Ltd., Arakalagud Branch, Arakalagud, Hassan District – 573115. ... Respondents (By Sri.K.V.Narasimhan, Advocate for R1, Sri.A.Madhusudhana Rao, Advocate for R2) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 30.03.2015 passed on the application passed in O.S.No.32/2004 on the file of Principal Civil Judge (Jr. Dvn.) and JMFC, Hassan vide Annx-A to the W.P and etc.
This Petition coming on for Preliminary Hearing in ‘B’ group this day, the Court made the following:
O R D E R The plaintiff in O.S. No.32/2004 has challenged the order of the trial Court dated 30.03.2015, whereby application of the defendants filed under Order 13 Rule 9 of CPC has been allowed thereby permitting the defendants to take custody of the deposit receipts Exs.P1 to P3 while granting liberty to the plaintiff to file objections before the concerned bank authority at the time of realization of the amount.
2. The learned counsel for the petitioner who is the husband has challenged the impugned order stating that Order 13 Rule 9 of CPC under which provision the application is filed confers power on the Court to return the documents to the person who has produced the documents and the Court does not have power to order for return of the documents to any other person as ordered.
3. It is the contention of the learned counsel for the respondents/defendants that the certificate stands in her name. It is contended that the procedural requirements under Order 13 Rule 9 of CPC cannot place any rider on the Courts power regarding the return of documents, where the Court taking note of the substantive rights of the party directs return to any person other than the person who has produced the deposit certificates.
4. Learned counsel for the respondent No.2 – Bank submits that it is a formal party and would abide by any decision that is passed and even otherwise they are obliged to make payments to the person whose name is found in the deposit certificate.
5. Heard both the sides.
6. A perusal of the common judgment passed in O.S. Nos.301/2003, 32/2004 and 102/2007 in specific as regards the relief of permanent injunction as sought for, by the plaintiff against the bank to restrain the bank from disbursing the amount has been rejected, while holding that the amounts in deposit are the exclusive property of the other defendants. It is further observed that plaintiff in fact has no locus-standi to restrain defendant No.4 - Bank from disbursing the amount in favour of the defendant No.1. This is the finding on issue No.9 at paragraph 28 of the judgment which has attained finality, as the judgment and decree is not challenged by the aggrieved plaintiff. Observations made at paragraph 18 would also reveal that the Court has rejected the contention of the plaintiff that the father Thimmegowda had given the amount with instructions that it has to be kept in the name of the daughter Priyanka as the daughter Priyanka was born only after the demise of her grand father Thimmegowda.
7. It is clear that as regards the entitlement to the amount which is the subject matter of the deposit receipts, Court has adjudicated and found that the defendants are entitled to the amount kept in fixed deposit as per Exs.P1 to P3.
8. The question as to whether the Court under Order 13 Rule 9 of CPC could have ordered for return of fixed deposit certificates to the defendants though the certificate were produced by the plaintiff is to be considered. Order 13 Rule 9 of CPC lays down the procedural requirements regarding entitlement to receive documents produced. In the facts of the present case, where the entitlement of the defendants is decided and the Court has held that the amount in fixed deposit as per Exs.P1 to P3 is the amount to which the defendants are entitled there can be no rider placed on the power of the Court to pass an order to return documents by relying on Order 13 Rule 9 of CPC. Recourse to the restrictions under Order 13 Rule 9 of CPC would come in to play in the absence of such adjudication as made in the present case. Clearly the substantive adjudication by the Court and the power of Court while so adjudicating would extend to passing of necessary order relating to return of Exs.P1 to P3, and such power cannot be restricted by the procedural requirements under Order 13 Rule 9 of CPC. Hence, I find no infirmity in the order passed by the trial Court and the petition is rejected.
Sd/- JUDGE NS