IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 17TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 43231 OF 2017 (GM-CPC) BETWEEN:
SMT. SWARNAMALA ASHOK KUMAR JAIN, WIFE OF SRI. ASHOK KUMAR POKARNA, AGED ABOUT 58 YEARS, RESIDING AT NO.106, PARIJATA APARTMENTS, MICO LAYOUT, HONGASANDRA, BANGALORE-560 068.
(BY SRI. SIDDAMALLAPPA P M, ADVOCATE) AND:
MS. SHILPA LAXMAN NAIK DAUGHTER OF LAXMAN GOVIND NAIK, AGED ABOUT 42 YEARS, WORKING AT TCS, C4 BUILDING, 6TH FLOOR, MANYATA BUSINESS PARK, NAGAWARA, HEBBAL, BANGALORE-560 045.
… PETITIONER … RESPONDENT (BY SRI. YOGESHA GOVINDASWAMY, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 22.06.2017 PASSED IN EX.NO.275/2016 AS PER ANNEXURE-D BY LEARNED III ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY (CCH-25).
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER Petitioner being the Judgment Debtor in Execution Petition No.275/2016 is knocking at the doors of Writ Court for assailing the order dated 22.06.2017, a copy whereof is at Annexure-D whereby her objection to execution process has been rejected.
2. After service of notice, the respondent-decree holder having entered appearance through her counsel resists the writ petition.
3. Learned counsel for the petitioner submits that unless the amount of Rs.7,00,000/- (Rupees seven lakh) only deposited by her under the registered lease agreement dated 01.09.2012 is refunded, the eviction decree obtained in O.S.No.7179/2014 cannot be executed.
4. Learned counsel for the respondent per contra contends that though the lease agreement mentions Rs.7,00,000/- the petitioner has paid only Rs.5,20,000/- and that since she has overstayed in the subject premises and she has made her to fight the legal battle by way of suit and later by way of execution, no amount is liable to be refunded, especially when she is entitled to the damages for continuing in the occupation of the property beyond the fixed term.
5. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter because:
(a) the eviction suit in O.S.No.7179/2014 has been decreed on 06.10.2015, as under:
“Suit is decreed with costs.
The defendant is directed to quit, vacate and hand over the vacant possession of the schedule property within two months from the date of this judgment.
It is further held that the plaintiff is entitled for damages from 1.8.2014 till possession is delivered to her”.
The decree does not make refund of the alleged amount as a pre-condition for its execution.
(b) the contention of the petitioner at para 8 of the judgment there is a finding as to the refundable amount lying with the respondent-decree holder and this amounts to decree, is bit difficult to countenance; true it is, that there is some observation in this regard; however, that per se does not amount to a decree within the meaning of Sec.2(2) of CPC,1908; at the most, it may be a part of the judgment as defined u/s. 2(9) of the Code; what is executable is the decree as the Executing Court finds it and not the judgment which is only a reasoning part on which the decree is founded;
(c) if the petitioner wanted the refund of the deposit amount, she should have structured her pleadings and proof in the eviction suit accordingly; she has not filed the Counter Claim and therefore justifiably the trial court has not directed refund of the amount, whatever be its quantum; there are allegations and counter allegations as to some damage having caused to the subject property which is admittedly in the possession of the petitioner till date; petitioner needs to pay the damages in terms of the decree w.e.f. 01.08.2014 till the possession is delivered to the respondent; for this a separate enquiry needs to be held wherein petitioner may seek adjustment; however that cannot retard execution process.
In the above circumstances, this writ petition being devoid of merits is dismissed. The Executing Court is directed to accomplish the execution forthwith.
All other contentions of the parties are kept open. No costs.
Sd/- JUDGE Snb/