IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR EX.F.A. No.3 OF 2018 BETWEEN Smt. Vijaya H., D/o. Late B.Hanumanthappa, Aged about 49 years, R/o. Door No.101/1 (2nd Floor), 8th Cross, ‘A’ Block, Devaraj Urs Layout, Davangere-577006.
(Ms. Vijaya H., Party-in-person) AND Smt. Kumuda, W/o. Shyam L.,(Advocate) Aged major, Lecturer, Government Pre University College, Kakkargolla, Davangere-577525.
(By Sri. S.Vishwajith Shetty, Advocate) …Appellant …Respondent This EX.FA. is filed under Section 47 of CPC, against impugned orders made by court of Principal Civil Judge, Davangere, in Ex.Case No. 157/2016 on 11.1.2018 and 22.2.2018.
This EX.FA. coming on for final disposal this day, the court delivered the following:
JUDGMENT Appellant appears in person and argues. Heard the learned counsel for respondent. Perused the impugned order.
2. This appeal has been filed challenging the order dated 11.1.2018 in Execution Case no. 157/2016 on the file of the Additional Civil Judge at Davanagere and the order dated 22.2.2018 in the same execution case. The facts of the case are as follows : -
3. The appellant instituted a suit O.S.601/2011 against the respondent seeking eviction of the respondent from a house belonging to her. The suit was decreed. The respondent was directed to hand over vacant possession of the house and also pay the arrears of rent. The appeal preferred by the respondent against this judgment was also dismissed. Thereafter, the appellant put the decree into execution by filing Execution Case no.157/2016. During the pendency of the Execution Case, on 18.4.2014 respondent deposited the keys of the schedule property in the executing court. The appellant did not receive the keys stating that the respondent had caused extensive damages to the building. So far the appellant has not received the keys. She filed I.A.no.6 seeking arrest warrant against the judgment debtor, i.e., the respondent for not paying the arrears of rent, cost of the appeal, etc., The respondent made certain payments during the pendency of the execution petition. While making payment, she deducted Rs.30,000/- paid to the appellant towards security deposit. Executing court considered all the aspects of the matter and passed an order. In para 14 of its order, it is observed as below : -
“14. In view of above discussion Rs.30,000 + 88,203/- is to be deducted from balance damages. DHR has stated JDR deposited 1,26,637/- and 1,00,000/-. Therefore, total amount paid by JDR is Rs.3,44,840/-. As stated DHR is entitled for Rs.5832/- as per column No.1, Rs.3,40,000/- as per column 2, Rs.386/- as per column No.3. Rs.805/- as per column No.5, Rs.1,500/- as per column No.5 of I.A. 6. In total DHR is entitle for Rs.3,48,523/-.
Deducting Rs.3,44,840/- comes to Rs.3,683/- JDRs have to pay Rs.3,683/- to DHR. DHR is entitle to Rs.3,683/-. That in the event failure of payment of amount of Rs.3,683/- by JDR is delayed, JDR is liable to the interest as per decree. Therefore, in view of above discussion I am of opinion that major part of amount paid by the JDR. Therefore, petition requires to be allowed in part. Hence, I answer point No.1 in the affirmative in part”.
4. Perusal of the impugned order shows that the executing court has minutely dealt with the case put forward by the appellant and ultimately came to the conclusion that the respondent was due in a sum of Rs.3,863/-. This amount was ordered to be paid to the appellant.
5. The appellant submits that since the respondent has caused extensive damages to the building, she is under no obligation to return the security deposit. She also submits that the respondent is also liable to pay damages and the executing court has not taken this aspect into consideration.
6. Learned counsel for the respondent submits that the appellant had earlier filed W.Ps.5632/2017 and 7908- 09/2017 against the respondent. While disposing of these writ petitions it was ordered that in case the respondent had caused damage to the building, the same cannot be adjudicated in the execution proceedings. The appellant has to file a separate suit for recovery of damages. He produces copy of the order passed in the said writ petitions.
7. After perusing the impugned order and also the order passed by this court in the writ petitions, it becomes evident that the executing court has rightly come to the conclusion that the amount due by the respondent to the appellant is only Rs.3,863/-. I do not find any infirmity in this order. It is also a matter to be mentioned that when the judgment debtor deposited the keys in the executing court, without receiving those keys if the appellant simply complains the damage caused to the building, the same cannot be accepted. First she must take the keys, assess the damage caused to the building and then demand the same from the respondent. It is altogether a separate proceeding and it cannot be adjudicated in the execution proceedings. This is what has been held by this court in the writ petitions. Moreover, the appellant has also challenged another order dated 22.2.2018. It appears that she sought re-opening of the suit for recovery of Rs.42,813/-. The executing court dismissed the application holding that the suit cannot be re-opened once it is decreed and any amount that was due to the appellant was already adjudicated by passing the order dated 11.1.2018. I do not find any infirmity in the order dated 22.2.2018 also. In the result, I come to the conclusion that the appeal is misconceived and it is devoid of merits. It is dismissed.
Sd/- JUDGE ckl