- 1 - HC-KAR NC: 2026:KHC:31956 W.P. No.16367/2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.16367/2022 (GM-CPC) BETWEEN: SACHIDANANDA BHAT S/O LAKSHMINARAYAN BHAT AGED ABOUT 62 YEARS NEAR MAHALINGESHWARA TEMPLE HEJMADY VILLAGE P.O. HEJMADY 574103 UDUPI DISTRICT. …PETITIONER (BY SRI. VYASA RAO K.S. ADV.,) AND: RATHNAVATHI AGED 60 YEARS D/O PUTTANNAYYA NEAR MAHALINGESHWARA TEMPLE CHOKKADI, YENAGUDDE VILLAGE P.O. KATAPADY 574105 UDUPI DISTRICT. …RESPONDENT (BY SMT. RASHMI M. RAO, ADV.,) - - - THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS AND QUASH THE IMPUGNED ORDER DTD 31.05.2022 PASSED BY THE PRL. JUDGE, FAMILY COURT, UDUPI IN EX.CASE NO.10/2021 AS INDICATED IN PAGE 12 OF ANNEXURE-A & ETC. Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:31956 W.P. No.16367/2022 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging the order dated 31.05.2022 passed in Ex.P.No.10/2021 by the Principal Judge, Family Court, Udupi (for short, ‘the Executing Court’). 2. Sri.Vyasa Rao K.S., learned counsel appearing for the petitioner-judgment debtor submits that the respondent-wife got a decree for a sum of Rs.3,70,000/- and to execute the said decree, she filed an execution petition. In the said execution petition, the respondent- decree holder filed an application seeking to issue arrest warrant against the petitioner and for detention of the petitioner in the civil prison. The petitioner has filed objections specifically contending that he has no means to pay the amount, he has been looked after by his brother and sister and the Executing Court, without considering - 3 - HC-KAR NC: 2026:KHC:31956 W.P. No.16367/2022 any of these aspects, proceeded to issue the arrest warrant against him which is impermissible. It is further submitted that when the judgment debtor contends that he has no means to pay the amount, under such circumstances, the Executing Court is bound to conduct an enquiry with regard to the means of the judgment debtor and the burden shifts on the decree holder to prove that the judgment debtor has the means and there cannot be any order for arrest and for detention in civil prison. In support of his contentions, he placed reliance on the decision of the Hon'ble Supreme Court in the case of JOLLY GEORGE VARGHESE AND ANOTHER Vs. THE BANK OF COCHIN1 and which has been followed by this Court in the case of K. KARUNAKAR SHETTY Vs. SYNDICATE BANK, MANIPAL2. Hence, he seeks to allow the petition. 1 AIR 1980 SC 470 2 AIR 1990 KAR 1 - 4 - HC-KAR NC: 2026:KHC:31956 W.P. No.16367/2022 3. Though served, there is no representation for the respondent. 4. I have heard the arguments of learned counsel for the petitioner and meticulously perused the material available on record. 5. The respondent has filed Ex.P.No.10/2021 seeking to execute the decree in M.C.No.105/2014 and to recover Rs.3,70,000/-. In the said proceedings, the petitioner-judgment debtor entered appearance. The decree holder has filed an application under Order XXI Rule 30 and 37 read with Section 151 of the Code of Civil Procedure, 1908 (for short, ‘the CPC’) seeking prayer to order for issuance of arrest warrant and for detention of the judgment debtor in civil prison. The petitioner filed a counter statement by specifically contending that he is aged above 61 years, he is suffering from hypertension, he is unable to do any work, he has been looked after by his brother and sister and he has no means to pay the - 5 - HC-KAR NC: 2026:KHC:31956 W.P. No.16367/2022 amount to the respondent at present the fact which is fully known to the petitioner. The Executing Court, under the impugned order has not adjudicated as to the assertion made by the judgment debtor as to whether he has any means or not and proceeded to issue the arrest warrant against the judgment debtor. 6. The learned counsel for the petitioner submits that this Court, while staying the impugned order has ordered to deposit 50% of the amount and as per the said instruction, the amount has been deposited on 07.09.2022. On query, it is submitted that the said amount has been deposited by the relatives of the judgment debtor on his request. 7. It is to be noticed that this Cout in the case of K.KARUNAKAR SHETTY referred supra, by considering the earlier decision of the Hon'ble Supreme Court in the case of JOLLY GEORGE VARGHESE AND ANOTHER referred supra, at paragraph 4 held as under: - 6 - HC-KAR NC: 2026:KHC:31956 W.P. No.16367/2022 “4. Unfortunately, the executing court has not applied its mind to the law declared by the Supreme Court in regard to sections 51 and 58 of the Civil Procedure Code read with Order 21, Rule 38. He has independently gone into the provisions contained in the Civil Procedure Code without examining what the Supreme Court and what the High Courts have said in regard to the said decision rendered by the Supreme Court. He has gone to the extent of holding that the burden of proof is on the judgment debtor to demonstrate that he has no means and not on the decree-holder. On the other hand, in Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470, the Supreme Court has clearly laid down that as long as, there is no dishonesty and mala fides on the part of the judgment debtor to discharge his obligation, committing him to civil prison would amount to violation of article 11 of the International Covenant on Civil and Political Rights and Article 21 of the Constitution of India. Therefore, it is the decree-holder who has to demonstrate that the judgment debtor wilfully with mala fide intention, to deprive the benefit of the decree, is refusing (refused) to pay the decretal amount in spite of having sufficient means to pay. The decree-holder has not discharged that obligation by any cogent evidence. Then the - 7 - HC-KAR NC: 2026:KHC:31956 W.P. No.16367/2022 impugned order is clearly in contravention of the ruling of the Supreme Court.” 8. Keeping in mind the enunciation of law laid down by the Hon'ble Supreme Court and this Court, I am of the considered view that the Executing Court is required to conduct an enquiry on the contention taken by the judgment debtor that he has no means to pay the amount. The Executing Court is required to direct the parties to place appropriate evidence to ascertain whether the judgment debtor has any means to pay the amount or not and thereafter, it can take further steps in the execution proceedings. With the aforesaid observations, I proceed to pass the following: ORDER (i) The writ petition is allowed. (ii) The impugned order dated 31.05.2022 passed in Ex.P.No.10/2021 by the Principal Judge, Family Court, Udupi, is set aside. - 8 - HC-KAR NC: 2026:KHC:31956 W.P. No.16367/2022 (iii) The matter is remitted back to the Executing Court with a direction to hold an enquiry and to take an appropriate decision. No order as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE RV List No.: 1 Sl No.: 40