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2023 DIGILAW 263 (KAR)

Shivannagowda v. M N Shivappa Gowda

2023-02-13

S.SUNIL DUTT YADAV

body2023
JUDGMENT/ORDER 1. Petitioners who are the judgment debtors have filed the present writ petition and sought for setting aside the impugned order dtd. 16/3/2019 passed in Ex.No. 87/2014, whereby the trial Court has allowed the petition filed under 21 Rule 32 read with Sec. 151 of CPC and ordered that the JDRs to undergo simple imprisonment for two months in civil prison for violation of the judgment and decree passed in O.S.No.130/2019. 2. After hearing the matter for sometime, learned counsel for petitioners has filed an affidavit of the judgment debtors - petitioners herein, which reads as follows: "I SHIVANNAGOWDA, @ Emme Shivannegowda, Aged about 78 years, 2) Sri.RAMESHA, S/o Shivannagowda, Aged about 48 years, 3) Sri.LOKESHA, S/o Shivannagowda, Aged about 45 years, 4) Sri. SATHISHA, S/o Shivannagowda, All are R/at Madhihalli village, Bendiganavile Hobli, Nagamangala Taluk, Mandya District-571432, do hereby solemnly affirm and state on oath as follows: 1. We are petitioners in the above case and hence we are conversant with the facts of the case. 2. We submit that, we challenged the judgment and decree of the trial court passed in OS No.130/2009, before Hon'ble Senior Civil Judge, Nagamanagala in RA No. 39/2022 and the same is pending for adjudication. 3. We submit that, without prejudice to the rights of the petitioners and respondent in pending appeal, we are hereby undertake that we will not interfere with the decree holders rights in terms of decree passed in OS No.130/2009. I swear that what is stated above is true and correct to the best of my knowledge, information and belief." 3. By virtue of the said affidavit, it is clear that there is an undertaking by the judgment debtors that they will not interfere with the decree holder's rights in terms of the decree passed in O.S.No. 130/2009. The said affidavit and undertaking would have the effect that judgment debtors would abide by the terms of the judgment and decree passed, subject of course to their rights pending further consideration in the appeal proceedings. 4. Learned counsel for the respondent submits that as long as the judgment debtors adhere and respect the judgment and decree passed in O.S.No.130/2009 respondent will have no grievance. 5. 4. Learned counsel for the respondent submits that as long as the judgment debtors adhere and respect the judgment and decree passed in O.S.No.130/2009 respondent will have no grievance. 5. Accordingly, taking note that the power for order of arrest is to be exercised only as a last resort and also that the affidavit filed has the effect of demonstrating bonafides of the petitioners, the impugned order is set aside while recording the undertaking of the petitioners. 6. It is noticed that at the time of issuance of notice in the present petition, an order of stay was granted subject to the petitioners depositing a sum of Rs.50, 000.00. In light of the disposal of the petition, necessary orders are required to be passed as regards to the amount in deposit before this Court. 7. Out of Rs.50, 000.00, Rs.5, 000.00 to be paid to the District Legal Services Authority, Bangalore and Rs.5, 000.00 to be paid to respondent. The remaining amount to be refunded to petitioner No.2. Accordingly, petition is disposed off.