The court reinforced the necessity of due process in execution proceedings, stipulating that an initial decision for enquiry should be honored to ensure justice.

ORAL ORDER

The petitioner – defendant – judgment debtor is before this Court calling in question an order dated 13.10.2023, passed in Ex.P.No.1274/2022, by the XLIV Additional City Civil and Sessions Judge, Bengaluru, insofar as it rejects the application - I.A.No.2, filed under Sections 47 (1) r/w. 151 of the CPC, seeking permission to lead evidence and seeks issuance of an arrest warrant.

2. Heard Sri B. Sharath Kumar, learned counsel for petitioner and Sri Ajay R.A., learned counsel for respondent.

3. Facts in brief, germane, are as follows:

The petitioner is the judgment debtor. A suit in O.S.No.489/2018 is filed by the respondent - plaintiff respondent against the petitioner – defendant for recovery of money of an amount before the jurisdictional Court at Mumbai. The suit comes to be decreed exparte against the petitioner. The plaintiff – decree holder then files an execution petition before the concerned Court at Bengaluru, at the petitioner’s place of business in Ex.P.No.1274/2022. In the proceedings before the concerned Court, an application is filed by the petitioner in I.A.No.1 under Order XXXIII Rule 1 of the CPC seeking permission to produce certain documents, on 27.01.2023. The reason for production of the documents is that, he has already made substantial payments which is not adjusted. The decree holder – respondent files his objections to I.A.No.1. The concerned Court then directs filing of a memo of calculation. An application – I.A.No.2 is then filed under Section 47 (1) of the CPC, by the petitioner – judgment debtor to determine the question of discharge from the debt as some amounts had already been paid. The respondent files his objections. The concerned Court then deems it appropriate to conduct an enquiry of I.A.No.2. Thus, posts the matter for an enquiry on I.A.No.2 filed by the petitioner – judgment debtor. The concerned Court rejects the application so filed by the petitioner on 13.10.2023. It is therefore, the petitioner is before this Court in the subject petition.

4. Learned counsel for petitioner would reiterate the contentions advanced in I.A.No.2 so filed before the concerned Court as the decree itself was passed exparte. He would submit that the petitioner should have liberty to produce what is contended in I.A.No.2. He would submit that the concerned Court initially directed an enquiry to be conducted, notwithstanding the same, the impugned order is passed rejecting the application. It is his contention that the execution petition is filed in the name of a wrong person as the firm is owned by a particular person and not the one that is shown as the judgment debtor. He would thus require one opportunity before the concerned Court to demonstrate several contentions which could not be done in the suit.

5. Per contra, learned counsel appearing for the respondent – decree holder submits that it is only a ruse to get over the execution proceedings and that the petitioner - judgment debtor is now trying to shift his burden of liability on a third party, depicting that a wrong person is impleaded as the judgment debtor.

6. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record.

7. The afore-narrated facts are not in dispute. On the application filed by the petitioner certain orders are passed by the concerned Court. The order so passed are as follows:

“Advocate for DHR present and he submits this EP petition filed based on summery suit no.489/2018 passed by the Bombay City Civil Court at Mumbai on 26.06.2019 against the JDR and same was transferred from the Bombay city ci