IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01ST DAY OF APRIL, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.54731-54732/2018(GM-CPC) BETWEEN:
SRI MOHAMMED ALTHAF, AGED ABOUT 45 YEARS S/O SRI. M. BASHA PROPRIETOR, DESI GLASS AND PLYWOOD R/AT 5TH CROSS, ROBERTSONPET, K.G.F-563 122 KOLAR.
... PETITIONER (BY SRI VIJAYA KRISHNA BHAT M., ADVOCATE) AND:
1. SRI J. SUGUNA GOPAL AGED ABOUT 62 YEARS S/O LATE JAGANATHAN 2. SMT. S. KANNAMMAL AGED ABOUT 54 YEARS, W/O SRI J. SUGUNA GOPAL 3. KUM.S. REKHA AGED ABOUT 36 YEARS D/O SRI. J. SUGUNA GOPAL 4. KUM. S. REVATHI AGED ABOUT 35 YEARS D/O SRI. J. SUGUNA GOPAL, 5. KU. S. RADHIKA AGED ABOUT 33 YEARS D/O SRI J. SUGUNA GOPAL ALL ARE RESIDING AT NO.32, "A" TYPE, BEML NAGAR, KOLAR GOLD FIELDS 563 115.
... RESPONDENTS (BY SRI J. G. CHANDRA MOHAN, ADVOCATE FOR R1-R5) …… THESE WRIT PETITIONS ARE FILED UNDER ARTICL 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 17.11.2018 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, KGF IN EXECUTION CASE NO.10/2012 AS PER ANNEXURE-J AND CONSEQUENTLY ALLOW THE APPLICATIONS FILED BY THE PETITIONER VIDE ANNEXURES-F & H.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The judgment debtor filed the present writ petitions against the Order dated 17.11.2018 made in Execution No.10/2012 on the file of the Addl. Senior Civil Judge and JMFC, KGF, rejecting the application filed by the judgment debtor under Section 151 of Code of Civil Procedure seeking permission to pay the outstanding due in installments and directing the him to pay the outstanding due of `3,88,820/- to the decree holders forthwith.
2. The respondent Nos.1 to 5/ decree holders filed MVC No.25/2002 claiming compensation against the petitioner herein/judgment debtor. After contest, the Tribunal awarded compensation of `1,50,000/-. Aggrieved by the said judgment and award, the respondents herein filed MFA No.14580/2007. This Court, considering the entire material on record, by the judgment and award dated 07.01.2011 modified the judgment and award passed by the Tribunal and enhanced the compensation from `1,50,000/- to `3,08,000/- with interest at 6% per annum from the date of petition till payment.
3. In terms of the said judgment and award, the judgment debtor has not paid the amount. Therefore, the decree holders were forced to file Execution No.10/2012. According to the decree holders, the total amount payable by the judgment debtor is `4,88,760/- including interest at 6% per annum as per the execution petition filed on 02.02.2012. During pendency of the proceedings, certain amounts are said to have been paid by the judgment debtor to the decree holders. Thereafter, the decree holders filed Memo of calculation on 24.07.2018, according to which, the balance payable as on 01.07.2018 is `3,88,820/-. The judgment debtor also filed Memo of Calculation according to which, the balance payable is `6,03,680/- and have already deposited an amount of `3,56,000/- from time to time, till 31.07.2018. Accordingly, balance payable as on 04.08.2018 is `2,47,680/-.
4. The Executing Court, considering the application filed by the judgment debtor seeking permission to pay the outstanding due in installments, rejected the application and directed to pay the outstanding due of `3,88,820/- to the decree holders, forthwith. Hence the present writ petitions are filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri Vijaya Krishna Bhat, learned counsel for the petitioner/judgment debtor, contended that the impugned Order passed by the Executing Court rejecting the application filed seeking permission to pay the outstanding due in installments, is erroneous and contrary to the material on record. He would further contend that the judgment debtor has already paid `3,81,000/- and the claim of the decree holder as stated in the memo of calculation is erroneous. He further contended that, though, both the judgment debtor and decree holders have filed separate memo of calculation, the Executing Court has not decided as to what is the amount payable and therefore, the impugned order is erroneous. Therefore, he sought to allow the writ petitions.
7. Per contra, Sri Chandra Mohan, learned counsel for the respondents/ decree holders who are the dependents of the deceased, sought to justify the impugned Order passed by the Executing Court and contended that the judgment debtor filed the application seeking permission to pay the outstanding due in installments, without disclosing the actual amount payable. The impugned order directing the judgment debtor to pay `3,88,820/- is just and proper. He further contended that the original award was passed by the Tribunal as long back as on 04.08.2007 and the compensation was enhanced by this Court in MFA No.14580/2007 on 07.01.2011. But, till today, the claimants/decree holders are not able to utilize the fruits of the decree. The judgment debtor has dragged the matter and has not paid the award amount. Therefore, sought to dismiss the writ petitions.
8. Having heard the learned counsel for the parties, it is not in dispute that the Tribunal awarded compensation of `1,50,000/- to the respondents herein, on account of the death of the son of respondent Nos.1 and 2 and brother of other respondents. On the appeal filed by the claimants, this Court, considering the entire material on record, by judgment and award dated 07.01.2011 enhanced the compensation from `1,50,000/- to `3,08,000/- with interest at 6% per annum from the date of the petition, till payment. The said judgment and award has reached finality. Therefore, the judgment debtor is bound to pay the compensation determined by this Court. Since the judgment debtor has not complied the judgment and award, the decree holder was forced to file Execution No.10/2012. According to the decree holders the amount payable by the judgment debtor as on the date of filing of the Execution Petition is `4,88,760/-. During pendency of the execution proceedings, certain payment is said to have been made by the judgment debtor. Accordingly, after deducting the payment already made, as per the memo of calculation filed by the decree holders, the amount due as on 01.07.2018 is `3,88,820/-. As per the memo of calculation filed by the judgment debtor, the amount due as on 04.08.2018 is `2,47,680/-.
9. It is also not in disputed that the judgment debtor filed an application requesting the Executing Court to permit him to pay the balance decree amount in monthly installments of `5,000/-. In the affidavit accompanying the application, without stating as to what is the amount due, has only stated that except salary of `10,000/- per month, he has no other source of income. On the same day, the judgment debtor has filed memo of calculation which depicts that the balance amount payable is `2,47,680/-, as on 04.08.2018. It is not the case of the judgment debtor that he has paid the amount due as per his own memo of calculation filed on 04.08.2018. It is not his case that, even after payment of such amount, the decree holders are pursuing the execution petition and the learned Judge has not properly calculated the amount. In the absence of any payment as per the memo of calculation dated 04.08.2018, contention of learned counsel for the petitioner/judgment debtor that before rejecting the application, the learned Judge has not considered the payment already made, cannot be accepted. If the judgment debtor had shown his bonafides, then only he can raise such a contention.
10. Though original decree was passed in the year 2007 and we are in 2019, till today claimants who are dependents of the deceased are not able to utilize the fruits of the award. That is not the intention of the legislators while enacting the provisions of Motor Vehicles Act. If the judgment debtor was prompt and honest in paying the amount due, this court could have considered the permission to pay the due amount in installments, as sought for. When the judgment debtor has not come to the Court with clean hands, clean heart and clean mind, he cannot seek equity in payment of decretal amount in installments. The judgment debtor cannot deprive the dependents of the deceased who lost his life on account of the rash and negligent act of the judgment debtor.
11. Therefore, it is suffice if the petitioner is directed to pay the admitted amount of `2,47,680/- as per his own memo of calculation dated 04.08.2018, within a period of four weeks. If he pays the said amount within the time stipulated, this Court can certainly direct the Executing Court to consider the amount already paid and payable as per memo of calculation and pass orders in accordance with law.
12. In view of the aforesaid reasons, writ petitions are disposed of directing the judgment debtor to pay `2,47,680/- as per his own memo of calculation filed before the Executing Court dated 04.08.2018, within a period of four weeks from the date of receipt of certified copy of this Order. On such deposit being made, the Executing Court is directed to consider the memo of calculation to be filed by both the parties and decide as to what is the amount due payable by the judgment debtor to the decree holders, in accordance with law.
13. It is needless to observe that, the Executing Court shall take into consideration the payment made after 04.08.2018, while passing the determination order on the memo of calculation to be filed by both the parties.
14. In view of the disposal of the writ petitions, I.A.No.1/2019 for extension of interim order does not survive for consideration.
Sd/- JUDGE kcm