IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITON No.17546 OF 2018 (GM-CPC) BETWEEN:
Sri. Indra S/o Late. Gandu Aged about 60 years R/at 1st Pakshirajapura Village Hanagodu Hobli Hunsur Taluk – 571 105. …Petitioner (By Smt. Rakshitha D.J, Advocate) AND Smt. Indravathi W/o Kade Raju Aged about 37 years R/at 1st Pakshirajapura Village Hanagodu Hobli Hunsur Taluk Mysore District – 571 105.
(By Sri. B.S. Nagaraj, Advocate) … Respondent This writ petition is filed under Article 227 of the Constitution of India praying to quash the order date 22.11.2017 in Ex. No. 24/2016 passed by the learned Civil Judge, JMFC, Hunsur, and also that of the order dated 08.12.2017, 22.01.2018, 27.01.2018 and 03.03.2018 passed by the learned Civi1 Judge and JMFC, Hunsur Vide Annexure-D to the Writ Petition.
This Writ Petition coming on for Orders this day, the Court made the following:
ORDER This petition by a poor judgment-debtor in Execution No.24/2016 filed by the respondent-decree holder knocks at the doors of writ court grieving against the orders of the executing court for enforcing the money decree by his arrest & detention. After service of notice the respondent-decree holder having entered appearance through his counsel resist the writ petition.
2. Learned counsel for the petitioner finds fault with the impugned orders of the court whereby the subject money decree is being enforced by way of arrest & detention of the petitioner who has no means of paying the decreetal debt or any part thereof, having already paid considerable amount. She banks upon the decision of the Apex Court in the case of JOLLY GEORGE VARGHESE Vs. BANK OF COCHIN, AIR 1980 SC 470. She further argues that the petitioner having been committed to civil prison, later came to be released after few days and that now again he is sought to be detained for coercing the payment of remainder of the decreetal amount. So arguing, she seeks allowing of the writ petition.
3. Learned counsel for the respondent decree holder per contra contends that the decreetal sum is Rs.2,03,735-00 under the decree dated 30.09.2015 made in O.S.No.136/2015; this decree is put into enforcement in his Execution No.24/2016; petitioner has sufficient means to pay which he is not admitting; the photographs at Annexures-R1 & R1(a) to the respondent’s application for vacating the interim order show that he owns the property; even otherwise also his sons and daughters are well placed and they have made some payment already and therefore the writ petition should be dimissed.
4. Having heard the learned counsel for the parties and having perused the petition papers and also having adverted to the decision supra, petitioner deserves to be granted reprieve because:
(a) there is absolutely no material produced by the respondent-decree holder to show that petitioner has means to pay the decreetal debt and still he is not discharging the decree; the photographs at Annexures-R1 & R1(a) depict some building in front of which some vehicle is parked; hardly they are evidentiary material to prove petitioner’s means to pay the decreetal amount;
(b) petitioner has specifically taken up contention no.6 in his objection dated 16.04.2016 to the execution petition stating that he has no means to pay any amount. In fact, for non-payment he was committed to civil prison earlier for some days and he came to be released on some amount having been paid by his daughter and surety; and (c) the Apex Court in the case of Jolly George supra has held that where subsequent to date of decree judgment- debtor had no means to pay and threw was absence of mala fide and dishonesty, arrest and detention is violative of articles of International Covenant on Civil and Political Rights, and also Article 21 of Constitution of India; the case of the petitioner in all fours fits into the ratio of this decision.
In the above circumstances, this writ petition succeeds; a Writ of Prohibitio issues to the executing court prohibiting it from proceeding against the person of the petitioner by way of his arrest & detention for enforcing the decree in Execution No.24/2016.
However, it is open to the respondent-decree holder to take other modes of execution of decree, in the absence of any material to show that petitioner has sufficient means to pay the decreetal amount or any part thereof.
No costs.
Sd/- JUDGE KTY