Kum Sonal D/O Narayana Chouhan ... vs Smt Latha W/O Mallikarjunaiah ...
2022 Latest Caselaw 3128 Kant

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           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 23RD DAY OF FEBRUARY, 2022

                      BEFORE

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

        WRIT PETITION NO.100774/2022 (GM-CPC)

BETWEEN

1.     KUM SONAL D/O NARAYANA CHOUHAN @ LAMANI
       AGE. 28 YEARS, OCC. STUDENT AND AGRL.,
       R/O. SHRINIVASPURA (GANGAJAL THANDA),
       RANEBENNUR, NOW C/O. NARAYANA
       S/O. HEEMAPPA CHOUHAN ALIAS LAMANI
       R/O MRUTYUNJAYA NAGAR,
       1ST MAIN, 6TH CROSS,
       NEAR DIXIT GAS GODOWN,
       RANEBENNUR-581115, DIST. HAVERI.

2.    NARAYANA S/O. HEEMAPPA CHOUHAN @ LAMANI
      AGE. 56 YEARS, OCC. BUSINESS AND AGRI.,
      R/O MRUTYUNJAYA NAGAR, 1ST MAIN, 6TH CROSS,
      NEAR DIXIT GAS GODOWN, RANEBENNUR-581115,
      DIST. HAVERI.
                                      ...PETITIONERS
(BY SRI.B.S.KAMATE, ADV. FOR
SRI.S.M.TONNE, ADV.)

AND

1.     SMT LATHA W/O MALLIKARJUNAIAH ARADYAMATH
       AGE. 50 YEARS, OCC. HOUSEHOLD,
       R/O MRUTYUNJAYA NAGAR,
       RANEBENNUR-581115, DIST. HAVERI.

2.     KUM. NETRA
                               2




      D/O. MALLIKARJUNAIAH ARADYAMATH
      AGE. 29 YEARS, OCC. STUDENT,
      R/O MRUTYUNJAYA NAGAR,
      RANEBENNUR-581115, DIST. HAVERI.

3.    KUMAR GANESH S/O. MALLIKARJUNAIAH
      ARADYAMATH, AGE. 26 YEARS,
      OCC. STUDENT, R/O MRUTYUNJAYA NAGAR,
      RANEBENNUR-581115, DIST. HAVERI.

4.    KUM. NAYANA D/O. MALLIKARJUNAIAH
      ARADYAMATH, AGE. 25 YEARS,
      OCC. STUDENT, R/O MRUTYUNJAYA NAGAR,
      RANEBENNUR-581115, DIST. HAVERI.

                                          ...RESPONDENTS


      THIS WRIT PETITION      IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE WRIT IN THE NATURE OF CERTIORARI OR ANY
OTHER WRIT OR ORDER OR DIRECTION, QUASHING THE
IMPUGNED ORDER DATED 16-02-2022 PASSED BY THE
IST   ADDL.   SENIOR     CIVIL      JUDGE   AND    JMFC,
RANEBENNUR     ON      I.A.       DATED   16-02-2022   IN
EXC.NO.42/2020 VIDE ANNEXURE-H AND TO PASS AN
ORDER REJECTING THE I.A. DATED 16-02-2022 FILED BY
THE RESPONDENTS UNDER ORDER 21 RUULE 64 OF
C.P.C IN EXC.NO.42/2020 VIDE ANNEXURE-F.



      THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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                         ORDER

The petitioners are the judgment debtors in the

execution proceedings No.42/2020 on the file of the I

Additional Senior Civil Judge and JMFC, Ranebennur

[for short, "the executing Court']. The petitioners have

impugned the issuance of sale proclamation for sale of

the land in Sy.No.622/2i of Ranebennur city, which is

offered by the second petitioner as a guarantee. The

undisputed facts are that the respondents' suit for

specific performance in O.S. No.121/2016 has

culminated in a compromise decree with the first

petitioner, the daughter of the second petitioner,

agreeing to pay a sum of Rs.23,00,000/- and this

amount has not been paid. As such, the respondents

have commenced the aforesaid execution proceedings.

2. Sri.B.S.Kamate, the learned counsel for the

petitioners, submits that the petitioners have paid a

sum of Rs.13,00,000/- and will have to pay a remaining

amount of about Rs.8,00,000/-. The petitioners, to

enable themselves to pay the full amount, sought leave

of the executing Court to sell the petitioners' property

viz., the suit subject matter and have offered the second

petitioner - father's property as guarantee. The

petitioners are keen to settle the amount without any

dues, but they have not been able to because of the

prevailing COVID-19 pandemic.

3. Sri.B.S.Kamate further submits that the sale

proclamation is issued on the very day the application is

filed in that behalf without opportunity to the

petitioners to establish their bona fides, and if the sale

proclamation is issued, when the petitioners are willing

to settle the entire amount without dues within a

reasonable time, third party rights would be created in

the property leading to protraction of the disputes.

4. These submissions are considered by this

Court in the peculiar facts and circumstances which

appear to be indisputable [and which includes the fact

the second petitioner is permitted to offer his property

as a guarantee, the first petitioner is permitted to sell

her property, the petitioners have paid a sum of

Rs.13,00,000/-, and the impugned order is on the very

day on which application is filed]. This Court is of the

considered view that the petitioners must necessarily

file an application for recall of the impugned order

before the executing Court, and the executing Court

must consider the same and defer sale for a reasonable

time if the petitioners establish their bona fides

indicating the time frame within which a definite sum

would be deposited by them to avoid the sale of the

subject property, and until then, there must be some

protection to the petitioners.

Therefore, the petition stands disposed of with

liberty to the petitioners to file an application with the

executing Court for recall or deferment of the sale sale

vide impugned order dated 16.02.2022. The executing

Court must consider the application in the light of the

bona fides established by the petitioners. The sale of the

subject property pursuant to the impugned order is

deferred for a period of three weeks so that the

petitioners can file their application before the executing

Court and pursue the same for necessary orders.

The petition stands disposed of accordingly.

Sd/-

JUDGE Rsh