27 March 2023 10:30 AM GMT
The Karnataka High Court has set aside an order passed by the Commercial Court, Bengaluru, ordering the arrest of the Principal Secretary and Commissioner of Department of Health and Family Welfare in an execution proceeding.A single judge bench Justice Sreenivas Harish Kumar set aside the order dated 15-02-2023, saying it is "patently illegal”.The respondent Tejasco Techsoft Private...
The Karnataka High Court has set aside an order passed by the Commercial Court, Bengaluru, ordering the arrest of the Principal Secretary and Commissioner of Department of Health and Family Welfare in an execution proceeding.
A single judge bench Justice Sreenivas Harish Kumar set aside the order dated 15-02-2023, saying it is "patently illegal”.
The respondent Tejasco Techsoft Private Limited had sought to execute the award passed in arbitration and they made an application under section 60 of the Code of Civil Procedure seeking attachment of movables and immovables found in the office of the petitioners.
However, the court, having found that the award has attained finality and to avoid delay in payment of the award amount, ordered for the arrest of the petitioners under Order XXI Rule 30 CPC.
The bench on going through the records noted that the respondent did not file an application for arrest of the judgment debtors, i.e., the petitioners. They made an application for attachment of movables and immovables.
Counsel for the respondent contended that the court below considered oral application of the respondent and therefore ordered for arrest of the petitioners. Reference was made to Order XXI Rule 11 CPC.
To which the bench said “Even though the said provision provides for arrest of the judgment debtors on the oral application, the condition to be satisfied is that at the time of passing of the decree, the judgment debtor must be present within the precincts of the court or otherwise oral application cannot be considered for arrest.”
It added “It was the award of the arbitrator that was put into execution, not the decree of the court and therefore Rule 11 of Order XXI CPC cannot be applied at all.”
Further it clarified that “Order XXI Rule 30 CPC provides for detention of the judgment debtors, there is a procedure set down for arresting the judgment debtors. Order XXI Rules 37 to 40 CPC deal with it.”
Finally, allowing the petition it held “The judgment debtors are the officers of the Government, and issuing warrant against them without issuing arrest notice cannot be sustained. In this view of the matter, the impugned order suffers from infirmity.”
Case Title: The Principal Secretary & ANR And Tejasco Techsoft Private Limited
Case NO: WRIT PETITION NO. 4525 OF 2023
Citation: 2023 LiveLaw (Kar) 124
Date of Order: 07-03-2023
Appearance: AGA C.N.Mahadeshwaran, for petitioner.
H.Sunilkumar, Advocate for respondent.
Click Here To Read/Download Order