Sri. Adinath S/O Ramappa Padnad vs The Branch Manager
2022 Latest Caselaw 2536 Kant

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           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 16th DAY OF FEBRUARY 2022

                        BEFORE

      THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD

         Writ Petition No.107436/2018 (GM-CPC)

Between

Sri. Adinath
S/O Ramappa Padnad
Age: 51 Years, Occ: Agriculturist,
R/O: Maigur Village,
Tq: Jamkhandi,
Dist: Bagalkote.
                                          ...Petitioner

(By Sri. Hanumanthareddy Sahukar, Advocate )

And

1.    The Branch Manager,
      Karnataka Grameena Bank,
      Hippargi Branch
      Tq: Jamakhandi,
      Dist: Bagalkote.

2.    Smt.Akkatai W/O Ramappa Padnad
      Age: Major, Occ: Agriculturist,

3.    Sri. Bahubali S/O Ramappa Padnad
      Age: Major, Occ: Agriculturist,
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4.   Sri.Mahabal S/O Annappa Sadalga
     Age: Major, Occ: Agriculturist,

5.   Sri.Appasaheb S/O Arjun Patil
     Age: Major, Occ: Agriculturist,

     All are R/O: Maigur,
     Tq: Jamakhandi,
     Dist: Bagalkote.

6.   Sri.Bharamanna
     S/O Muttappa Nyamagouda
     Age: Major, Occ: Agriculture,
     R/O: Algur, Tq: Jamakhandi,
     Dist: Bagalkote.

7.   Sri. Sadanand, S/o Laman Savadi,
     Age: 25 years, Occ: Agriculture,
     R/o Keshava Krupa, maigur Road,
     Jamakhandi Dist: Bagalkot.
                                            ...Respondents

(By Sri. C.V.Angadi, Advocate for R1
    Sri. Jagadish Patil, Advocate for R7)

(Notice to R2 to R6 is dispensed with)

      This Writ Petition is filed under Articles 226 &
227 of the Constitution of India praying to quash the
order dated 23.06.2018 in Execution Case No.209/2007
passed by the learned Prl. Senior Civil Judge and JMFC,
Jamakhnadi, produced as Annexure-"E".

     This Writ Petition coming on for Orders, this day,
the Court made the following:
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                        ORDER

The petitioner, who is one of the judgment

debtors, has impugned the order dated 23.06.2018 in

Ex.No.209/2007 on the file of the Principal Senior Civil

Judge and JMFC, Jamakhandi (for short, 'the executing

Court'). The executing Court by the impugned order has

ordered sale of the western portion of 8 acres out of the

total extent of 28 acres 12 guntas in R.S. No.138 of

Maigur Village, Jamkhandi Taluk in execution of final

decree.

2. The undisputed facts are that the first

respondent has brought in a suit in O.S. No.254/2003

for recovery of money by sale of the aforesaid property

mortgaged by the petitioner creating a charge over the

same for the loan availed by him. This suit in O.S.

No.254/2003 is decreed for a sum of Rs.8,81,172/-

along with interest at the rate of 6% and a preliminary

decree is drawn accordingly. Subsequently, the final

decree for foreclosure and sale of the immovable

property is also drawn in terms of Order XXXIV of the

Code of Civil Procedure, 1908.

3. The first respondent has filed present

execution petition for recovery of a sum of

Rs.11,74,856/- in the month of November 2007. The

executing Court has issued sale proclamation, but this

Court in W.P. No.62017/2012 has set aside the sale

proclamation and directed reconsideration. It is after

this direction, the executing Court by the impugned

order has ordered for sale of western portion measuring

8 acres in the total extent of 28 acres 12 guntas of the

mortgaged land in R.S. No.138 of Maigur Village,

Jamkhandi Taluk [the subject property]. The executing

Court has directed the jurisdictional Tahasildar to

prepare 11E sketch for this extent of 8 acres - the

subject property - holding that proclamation for sale

shall be issued after such 11E sketch is placed on

record by the Tahasildar.

4. This Court has granted interim order of stay

of the proceedings, but it is now submitted that the

seventh respondent has purchased the subject property

in the auction after the Tahasildar has filed 11E sketch.

The seventh respondent has deposited a sum of

Rs.26,25,000/- with the executing Court, and the sale

is yet to be confirmed. It is also submitted in unison

that the sale is held in terms of the executing Court's

impugned order prior to the interim order granted by

this Court.

5. Sri. Hanumanthareddy Sahukar, the learned

counsel for the petitioner, submits that the Executing

Court has erred:

[a ] in concluding that an amount of

Rs.17,00,000/- remains outstanding without

taking into consideration certain deposits by

the petitioner with the first respondent, and

[b] in arriving at the market value of the subject

property at rate of Rs.3,00,000/- per acre

and also in directing the sale of the subject

property [out of 28 acres 12 guntas] in view

of the settled law that, when a portion of the

land is to be sold for recovery of the amount

due, only such portion of the land as would

be necessary for recovery of amount due

must be brought to sale.

6. Sri. C.V. Angadi, the learned counsel for the

first respondent, supported by Sri. Jagadish Patil, the

learned counsel for the seventh respondent, submits

that the executing Court has permitted sale of only 8

acres of land [the subject property] while disposing of

the first respondent's application for sale of 9 acres of

the total extent. The petitioner cannot now make a

grievance on the ground that sale proclamation is

issued for 8 acres. He emphasizes that the executing

Court has decided upon this extent based on the

determination of the market value of the property at

Rs.3,00,000/- per acre. If the determination of the

market value is proper, the direction for the sale of the

subject property would be unexceptionable, and this

determination of the market value is proper and does

not call for any interference.

7. Sri. C.V. Angadi next contends that the

executing Court has concluded, after considering the

material on record i.e., the receipts relied upon by the

petitioner to justify his objection that the amount

claimed by the first respondent is excessive, cannot be

accepted. The executing Court's opinion in this regard

is justified and does not call for any interference.

8. The petitioner has contended before the

executing Court that the value of the land in R.S.No.138

of Maigur Village, Jamkhandi Talukhad fetches

Rs.3,27,000/- per acre and the first respondent has

contended that the value would only be Rs.2,00,000/-

per acre because of excessive use of fertilizers and the

resultant salination. The executing Court has

determined the valuation at the rate of Rs.3,00,000/-

per acre. The dispute would therefore be in the

executing Court not accepting the petitioner's valuation

for an additional sum of Rs.27,000/- per acre.

9. The record of rights for this land is produced

by the first respondent. The executing Court, on

scrutiny, has observed that this revenue record shows

that the subject land is irrigated and the source of water

is a river but, there is no information about the crops

grown. The executing Court has also observed that

though the first respondent contends that the value of

the land would be vastly diminished because of

salination, no document is produced to substantiate the

same. Ultimately, the Executing Court has taken the

value of Rs.3,00,000/- per acre, a figure which is very

proximate to the value to the value asserted by the

petitioner, opining that when a property is brought to

sale in execution proceedings, the price would be

reduced. This court is of the considered opinion that

the determination of the market value at Rs.3,00,000/-

per acre by the executing Court, in the aforesaid

circumstances, cannot be found fault with, especially at

the instance of the petitioner who has offered the

valuation at the rate of Rs.3,27,000/-.

10. As regards the non-consideration of the

amounts deposited paid by the petitioner and the

deductions that must be permitted from the amount

claimed by the first respondent - decree holder, it is

seen that the Executing court has opined that the

receipts relied upon by the petitioner would not tally

with the loan amount. This reasoning is not self-

explanatory and is not after any detailed enquiry on the

reliability or otherwise of the receipts relied upon by the

petitioner. However, this Court is of the considered

opinion that this need not be a reason for setting aside

the sale proclamation because the petitioner himself has

said 9 acres out of the 28 acre and 12 guntas must be

sold; after the impugned order, the subject property is

sold for a sum of Rs.26,25,000/-; the purchaser has

deposited this amount; and the petitioner has not

offered details of the payments or sought for enquiry in

this regard.

11. This Court is also of the considered view that

while the confirmation of the sale of the extent of 8

acres out of the total extent of 28 acres 12 guntas in

R.S. No.138 of Maigur Village, Jamkhandi Taluk must

be duly considered, the executing Court must hold an

enquiry, with liberty to both the first respondent and

the other judgment debtors, to substantiate the claim of

payment of certain amounts and thereafter decide on

the disbursement of the amount in deposit which is

deposited by the seventh respondent. Therefore, the

following:

ORDER

a] The petition is allowed in part. The executing

Court is called upon to consider confirmation

of sale of 8 acres of land out of total extent of

28 acres 12 guntas in R.S. No.128 of Maigur

Village, Jamkhandi Taluk, in favour of the

seventh respondent and to pass necessary

orders in this regard within a period of four

[4] weeks from the date of receipt of a

certified copy of this order;

b] The executing Court shall hold an enquiry on

the petitioner's claim that the amount

claimed by the first respondent is excessive

in view of certain payments made. This

enquiry shall be held with reasonable

opportunity to both the petitioner and the

first respondent, and this enquiry shall be

completed within a period of twelve [12]

weeks from the date of receipt of a certified

copy of this Order.

c] The amount in deposit shall be disbursed

subject to the outcome of such enquiry.

Sd/-

JUDGE Kms