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2022 Supreme(Online)(Kar) 43852
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WP No. 101245 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE R.DEVDAS
WRIT PETITION NO. 101245 OF 2022 (GM-CPC)
BETWEEN:
GAJENDRA
S/O. RAMACHANDRA SHARMA
AGE. 51 YEARS, OCC. BUSINESS,
R/O. NEAR ICCO MILL,
BORAGAON-591214,
TQ. CHIKODI, DIST. BELAGAVI.
&PETITIONER
(BY SRI. SHRIHARSH A NEELOPANT, ADVOCATE)
AND:
1.
SURESH
S/O. SATYANARAYAN SHARMA
AGE. 55 YEARS, OCC. BUSINESS,
R/O. ICHALKARANJI-416115,
TQ. HATAKANAGALE, DIST. KOLHAPUR,
MAHARASHTRA STATE
2.
RASHID
S/O. PAPALAL MUJAWAR
AGE. 60 YEARS, OCC. AGRICULTURE,
R/O. KHADAKLAT-591228,
TQ. CHIKODI, DIST. BELAGAVI.
&RESPONDENTS
(RESPONDENT NO2. SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT OR ORDER OR DIRECTION IN THE NATURE OF WRIT OF
CERTIORARI TO QUASH THE IMPUGNED ORDER DATED
VINAYAKA
B V
Digitally
signed by
VINAYAKA B
V
Location:
Dharwad
Date:
2022.06.25
13:02:22
+0530
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WP No. 101245 of 2022
08.03.2022
PASSED
IN
EX.CASE
NO.44/2017
BY
THE
PRINCIPAL CIVIL JUDGE AND JMFC, CHIKODI ON I.A.NO.3
FILED UNDER ORDER XXI RULE 32(3) R/W. SECTION 151 OF
CIVIL PROCEDURE CODE FILED BY THE PETITIONER AS PER
ANNEXURE-A AND ALLOW I.A.NO.3 FILED UNDER ORDER XXI
RULE 32(3) R/W. SECTION 151 OF CPC FILED BY THE
PETITIONER AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
R.DEVDAS J., (ORAL):
Learned counsel for the petitioner submits that
respondent No.1 is only a formal party and notice may be
dispensed with. However, despite service of notice on
respondent No.2, respondent No.2 has not entered
appearance. It is submitted that even before the executing
court, respondent No.2 has not appeared. However, the
executing court while considering the I.A.No.III filed under
Order XXI Rule 32(3) read with Section 151 of C.P.C., in
Ex.Case No.44/2017, to direct the sale of property of the
Judgment Debtor/ respondent No.2 herein and pay
compensation to the Decree Holder, the executing court
directed the Decree Holder to take alternative steps as per
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law against the Judgment Debtor while keeping the
application open for consideration later.
2. Learned counsel for the petitioner submits that the
executing court has not made it clear as to what is the
alternative steps that is required to be taken by the
petitioner/Decree Holder.
3. Having gone through the provision contained in
Rule 32 of Order XXI, this court finds that the provision
prescribes detention of the Judgment Debtor in civil prison
or attachment of his property or both. Therefore, since,
the petitioner has not taken steps of seeking detention of
the Judgment Debtor in civil prison, probably, the said
directions are issued in the impugned order dated
08.03.2022.
4. Although, learned counsel for the petitioner
submits that once the attachment has been issued, it may
not be permissible for the executing court to direct the
Decree Holder to take alternative steps, in the considered
opinion of this Court the sale of immovable property of the
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Judgment Debtor should be the last resort. Therefore, the
executing court is right in its opinion in directing the
petitioner to take alternative steps although it was not
clarified in the impugned order dated 08.03.2022 as to
what is the alternative steps. It is now found from clause
(i) of Rule 32, the first step that is required to be taken by
the Decree Holder is to seek detention of the Judgment of
Debtor in civil prison.
5. Consequently, while clarifying the impugned order
dated 08.03.2022, this writ petition stands disposed of
permitting the petitioner to file an application before the
executing court to seek detention of Judgment Debtor in
civil prison.
Ordered accordingly.
SD
JUDGE
DL
