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Judgment
Ravi V. Hosmani, J
These writ petitions are filed by same petitioner seeking similar reliefs on similar facts and grounds against common respondent/s. Therefore, they were clubbed together, heard and disposed of by common order. For sake of convenience, specific facts of referred to would be those in W.P.no.102043/2024, filed seeking following reliefs:
IN WP.NO.102043/2024
i) A Writ of Certiorari or other appropriate writ, order or direction, quashing impugned order at Annexure A, dated 31-1-2024 passed in Ex.no.21/2022 by Senior Civil Judge and Prl. JMFC at Yellapur in the interest of justice, Etc.
IN WP.NO.101315/2024
i) A Writ of Certiorari or other appropriate writ, order or direction, quashing impugned order at Annexure A, dated 31-1-2024 passed in Ex.no. 20/2022 by Senior Civil Judge and Prl. JMFC at Yellapur in the interest of justice, Etc.
IN WP.NO.101316/2024
i) A Writ of Certiorari or other appropriate writ, order or direction, quashing impugned order at Annexure A, dated 31-1-2024 passed in Ex.no.23/2022 by Senior Civil Judge and Prl. JMFC at Yellapur in the interest of justice, Etc.
IN WP.NO.102051/2024
i) A Writ of Certiorari or other appropriate writ, order or direction, quashing impugned order at Annexure A, dated 31-1-2024 passed in Ex.no.24/2022 by Senior Civil Judge and Prl. JMFC at Yellapur in the interest of justice, Etc.
Sri Vishwanath Hegde, learned counsel for petitioner, submitted that petitioner was judgment debtor (‘JDr’ for short) in Ex.no.21/2022 on file of Senior Civil Judge and Prl. JMFC, Yellapur filed by respondent-decree holder (‘DHr.’ for short) for execution of Arbitration Award dated 21.09.2021 in no.AR21/ABN/27/2018-19, wherein order for recovery of Rs.24,25,966/- along with interest at rate of 9% p.a. and costs of Rs.21,775/-, was passed.
It was submitted Arbitration Award was unsustainable as DHr had failed to establish liability of JDr by producing relevant records and accounts statement. Therefore, JDr had filed application under Section 151 of Code of Civil Procedure, 1908 (‘CPC’ for short) seeking direction to DHr. to produce account extract pertaining to Award against JDr. However, without proper consideration application was rejected. Subsequently on 31.01.2024, arrest warrant was ordered in violation of principles of natural justice. Assailing said order, this petition was filed.
It was firstly contended that, impugned order was violative of principles of natural justice, as JDr did not have opportunity of contesting in arbitration proceedings. It was further submitted, Executing Court failed to take note of scope of proviso to Order XXI Rule 37 of CPC, which contemplates application of mind and enquiry regarding whether JDr. had intentionally or with malafide intention having means to pay decree amount, failed to pay same, before ordering arrest warrant. Hence, it was contrary to ratio laid down in K Karunakar Shetty v. Syndicate Bank reported in AIR 1990 Kar. 1 and Jolly George Varghese and Anr. v. Bank of Cochin reported in 1980 (2) SCC 360. Impugned order was also contended to be non-speaking order liable for interference. It was further submitted that if some breathing time were given, petitioner would settle all dues of DHr.
On other hand, Sri Mallikarjunaswamy B. Hiremath, learned counsel for DHr. opposed writ petition. It was firstly contended, allegation of violation of principles of natural justice was unsubstantiated as even after receipt of notice, JDr. had not participated in Arbitration proceedings. Award passed therein had attained finality. Further, as required, notice of arrest was issued on 12.04.2023. Despite receipt, JDr. did not pay award amount. It was specifically contended, conduct of JDr. and his counsel was noted by Executing Court as lacking in bonafide. It was noted that after issuance of arrest warrant against JDr., his counsel sent JDr. out of Court. It was further submitted, amount sought to be recovered in execution was amount misappropriated by JDr. from DHr.-Bank, while he was its employee.
Further, prior to passing impugned order, notice of arrest contemplated under Order XXI Rule 37 of CPC was issued and served on JDr. on 12.04.2023. On failure to pay decreetal amount despite lapse of about 8 months, order for issuance of arrest warrant was passed. Hence, no further enquiry was necessary. In view of conduct of JDr. and his counsel, recorded by Executing Court, ratio in K.Karunakar and Jolly George Varghese (supra) would not apply. On said grounds, sought for dismissal of writ petitions.
Heard learned counsel and perused writ petition record.
From above, only point required to be considered is: "Whether impugned order calls for interference?"
Admittedly, impugned order is passed under Order XXI Rule 37 of CPC, which as per ratio in K.Karunakar and Jolly George Varghese (supra) contemplates enquiry, whether DHr. establishes that failure to pay decreetal amount by JDr. was deliberate despite having sufficient means.
Perusal of order sheet does not indicate any enquiry or any material placed by DHr. to enable Executing Court to arrive at such conclusion. In fact, Executing Court appears oblivious to such requirement. Though, conduct of counsel for JDr. as recorded by Executing Court does not appear to be above board and even objections filed by JDr. to Execution Petition does not disclose any specific or grave reason for not complying with decree, same would not be sufficient to waive requirements of law. Execution Court would be required to take note of such conduct and impose appropriate costs.
In view of above, orders impugned in respective writ petitions are set-aside, matters stand remitted back to Executing Court for passing orders after appropriate enquiry as per observations made above.