Judgment underlines due process and rights of parties in execution proceedings related to property attachment.

ORAL ORDER

Aggrieved by the order passed in I.A.No.29 in Execution No.184/2007 dated 06.09.2019 by the Senior Civil Judge & JMFC, Arasikere, the petitioner/Judgment Debtor is before this Court.

2. The respondent/Decree Holder had filed I.A.No.29 under Order 21 Rule 54 of CPC to restrain JDr from selling the immovable property or mortgaging the same to any Bank in the interest of equity and justice. It is the case of the Decree Holder that after salary attachment, he has obtained part of the amount and still Rs.2,50,000/- is balance from JDr. She has retired as Teacher about 2 years back and never paid any amount. Recently about 2 days back, DHr came to know about the immovable property standing in the name of JDr and she is intending to sell the said property and immediately, the DHr has filed the application.

3. The JDr has filed objections to the application stating that there is difference in the measurement shown in the application with that of the documents. Already a sum of Rs.1,24,317/- was attached from the salary of JDr and till date DHr has not filed any memo of calculation. It is stated that JDr does not have any immovable property.

4. The trial Court by order impugned had allowed the application. The trial Court gave a finding that DHr apprehension is well founded. Taking into consideration that the original case was of the year 2001 which was disposed off in the year 2007 and the present execution petition is pending since 2007, in the interest of equity and justice in order to enable the DHr to recover the decretal amount, keeping in view that Motor Vehicle Act is a benevolent legislation and the application deserves to be allowed and accordingly, allowed the application.

5. Learned counsel appearing for the petitioner/ Decree Holder submits that when there was no memo of calculation and when the substantial amount is recovered, the Court ought not to have allowed the application and without giving an opportunity as contemplated under Order 21 Rule 54 of CPC, the trial Court ought not to have attached the property while allowing the application filed by the Decree Holder.

6. Learned counsel appearing for the respondent/ Decree Holder submits that there is no illegality with the order and as contemplated under Order 21 Rule 54 of CPC, the Court is competent to attach the property as the Judgment Debtor failed to pay the decretal amount.

7. Having heard the learned counsels on either side, perused the entire material on record. The Court's power as far as Order 21 Rule 54 of CPC is concerned, and for attachment of the property, there cannot be any dispute and there is no dispute about the fact that the Judgment Debtor is yet to pay the amount to the Decree Holder. It is the case of the Judgment Debtor that the memo of calculation is not filed and the outstanding amount is not determined and there was no opportunity given to the Judgment Debtor to settle and pay the amount. Even that argument of the learned counsel for the petitioner has no legs to stand. Considering the respective submissions of both the learned counsels, this Court is passing the following order:

ORDER

i. An amount of Rs.50,000/- that is deposited before this Court shall be transferred to the Executing Court and the respondent/Decree Holder can withdraw the amount. Thereafter, Decree Holder shall file a memo of calculation and basing on that, if the Judgment Debtor pays the amount, appropriate orders shall be passed by the Court.

ii. Accordingly, the writ petition is disposed off iii. All I.As. in this writ petition shall stand closed.