IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.2209 OF 2017 (GM-CPC) BETWEEN SRI. L. THIMMAIAH, S/O LATE LAKSHMAIAH, AGED ABOUT 65 YEARS, OCCUPATION: RETD.HEAD MASTER, R/AT KAREKALLAHALLI, VIDHYANAGAR, GOWRIBIDANUR TOWN-561 208, GOWRIBIDANUR TALUK, CHIKKABALLAPUR DISTRICT. … PETITIONER (BY SRI. VENKATESH N, ADVOCATE) AND SRI. M.S. RAMAKRISHNAIAH SHETTY, S/O SATHYANARAYANA SHETTY, AGED ABOUT 57 YEARS, OCCUPATION: BUSINESS, PREVIOUSLY R/AT M.G.ROAD, GOWRIBIDANUR TOWN-561 208, CHIKKABALLAPUR DISTRICT, PRESENTLY R/AT NO.133, 1ST MAIN, KADIRENAHALLI, BANGALORE. … RESPONDENT (BY SMT. VASANTHA LAKSHMI H.V, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:9.12.2016 (ANNEXURE-H) PASSED ON MEMO OF CALCULATION FILED BY THE DECREE HOLDER/RESPONDENT IN EXECUTION PETITION NO.35/2011 ON THE FILE OF THE HON’BLE SENIOR CIVIL JUDGE AND JMFC COURT AT GOWRIBIDANUR AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING – B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the judgment debtor in Execution No.35/2011 is grieving before the Writ Court against the order dated 09.12.2016, a copy whereof is at Annexure-H, whereby the memo of calculation filed by the respondent- decree holder having been accepted and resultantly the petitioner is made liable to pay a certain sum of money, which according to him he is not liable to make good. After service of notice, the respondent-decree holder having entered appearance stoutly opposes the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter for the following reasons:
(i) respondent’s suit for specific performance came to be decreed in terms of compromise on 27.02.2007, wherein the petitioner was allowed to retain the property but was directed to refund the amount with 9% interest; petitioner having dragged on the execution proceedings since 11.04.2011 has put the respondent-decree holder to enormous hardship by not making the payment even in terms of compromise decree with one or the other pretext for quite a long period and therefore the Executing Court going by the spirit of compromise has levied the interest which cannot be faltered and which is not contrary to the decree;
(b) this Court is in full agreement with the observation of the Court below at para 7 of the impugned order, which reads as under:
“7. If the contention of the Judgment Debtor is accepted, it would amount to an abuse of the process of the court and mockery of law. A person who is not capable of maintaining the undertaking given by him before a court of law cannot be permitted to take benefit under law by stating that there is no default clause in the joint memo. The Judgment Debtor has involved himself in frivolous litigation and has tried to defeat the decree of this court. No equity lies in favour of the Judgment Debtor who has tried to make the life of the decree holder miserable by coming to the court from 02.12.2013 till date to recover what lawfully belongs to him. …”
It is the consistent view of the Apex Court and of this Court that a litigant who is not fair and scrupulous is liable to be non-suited on the ground of misconduct alone in writ jurisdiction. Petitioner is liable to pay a cost of Rs.5,000/-
In the above circumstances, writ petition is dismissed.
Sd/- JUDGE cbc