Karnataka High Court
Sri.Ramakrishnasa ... vs Sri.Nagayya Andanayya Hiremath on 7 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH AT
DHARWAD
DATED THIS THE 07TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM
C.R.P.NO.100115/2015 (EX)
BETWEEN :
SRI RAMAKRISHNA CHANDRASHEKHARASA MERAWADE,
AGE : 63 YEARS, OCC: BUSINESS,
R/O BETAGERI, TQ: & DIST: GADAG.
... PETITIONER
(BY SRI PRASAD R.SIDHANTI, ADV.)
AND :
1. SRI NAGAYYA ANDANAYYA HIREMATH,
AGE : MAJOR, OCC: GOWDWON KEEPER,
R/O KARNATAKA STATE CO-OPERATIVE
MARKETING FEDERATION LTD.,
KONCHADI, 4/13/B, BERI BAIL,
MANGALURU-575006, KARNATAKA STATE.
2. SRI ANDANAYYA BASAYYA HIREMATH,
AGE : MAJOR, OCC: AGRICULTURE,
R/O YAREBELERI, TQ: RON, DIST: GADAG.
3. SRI SHIVAYYA BASAYYA HIREMATH,
AGE : MAJOR, OCC: AGRICULTURE,
R/O YAREBELERI, TQ: RON, DIST: GADAG.
4. THE MERCHANT LEBERAL CO-OPERATIVE BANK, LTD.,
GADAG-BETAGERI, REPRESENTED BY ITS MANAGER.
...RESPONDENTS
(BY SRI SRINIVAS B.NAIK ADV. FOR R.1
SRI HANUMANTHAREDDY SAHUKAR, ADV, FOR R.2 & R3
NOTICE TO RESPONDENT NO.4: SERVED)
THIS PETITION IS FILED UNDER SECTION 115 OF THE
CODE OF CIVIL PROCEDURE, 1908 PRYING THIS COURT TO SET
ASIDE THE ORDER PASSED IN EX.CASE NO.03/2013 DATED
17.03.2015 PASSED BY THE SENIOR CIVIL JUDGE & JMFC, RON
BY ALLOWING THIS REVISION PETITION WITH COSTS.
2
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
: ORDER :
Though this petition is listed for admission, with
the consent of learned counsel appearing for both the
parties, the same is taken up for final disposal.
2. The captioned revision petition is filed by
the decree holder questioning the order of the
Executing Court where the objections filed by
respondent No.4/JDR.No.4 are upheld and the
execution petition is dismissed as not maintainable.
3. The present petitioners claim is that
respondent No.1 offered to sell the suit property and
entered into an agreement to sell. Since the 1st
respondent failed to perform his part of contract, the
petitioner was compelled to file a suit for specific
performance in O.S.No.22/1997.
4. The Trial Court on appreciation of oral and
documentary evidence on record decreed the suit and
the same is confirmed by the Appellate Court in
R.A.No.5/2002. Based on the decree passed by the
Trial Court, the petitioner being the decree holder filed
execution petition to enforce the decree passed in
O.S.No.22/1997.
5. At this juncture, it appears that the 4th
respondent which is a Co-operative Bank tendered
appearance and filed detailed objections contending
that respondent No.1 to 3 had availed loan relating to
the firm business and the property was offered as
collateral security and an encumbrance was created
pursuant to availment of loan by respondent Nos.1 to
3. Therefore respondent No.4 contended that
execution petition cannot be enforced as respondent
No.4-Bank has first charge over the assets of
respondent No.1.
6. The Executing Court having examined the
rival contentions and also having verified the records
found that respondent No.1 who is a partner of the
partnership firm availed loan of Rs.25,000/- on
23.12.1993. Respondent No.1 was a defaulter and
therefore, the dispute was raised under Section 70 of
the Karnataka Co-operative Societies Act against
respondent No.1 and award came to be passed on
11.04.1996. The executing court also found that first
loan availed by JDR No.1 was dated 23.12.1993,
which was very much prior to agreement to sell dated
28.01.1994.
7. The executing court having given its
anxious consideration to the material on record was of
the view that the award passed by the authority under
the Co-operative Societies Act is dated 11.04.1996,
which is much prior to the decree passed by the trial
court in O.S.No.22/1997. The executing court was of
the view that the award passed by the authority under
the Co-operative Societies Act has to be treated as
decree of a civil court for all practical purpose. It is in
this background, the executing court has held that the
decree cannot be executed as respondent No.4-bank
has first charge over the assets of respondent
No.1/JDR No.1.
8. Having verified the records, I have given
my anxious consideration to the order under challenge
and also materials placed on record in the present civil
revision petition. I have also perused the detailed
objection filed by respondent No.4-bank. At para 3,
the bank has specifically contended that the suit land
was encumbered and the bank had first charge, which
was much prior to respondent No.1 entering into an
agreement with the decree holder agreeing to sell the
suit land.
9. On perusal of paragraph 3 of the objections
filed by respondent No.4-bank, this court would find
that respondent No.4-bank put the suit land for
auction to recover the dues. Since none of the bidders
came forward to purchase the suit land, respondent
No.4-bank approached the authorities under the
provisions of the Karnataka Co-operative Societies Act
and obtained an order under Section 101-B of the
Karnataka Co-operative Societies Act. It is further
specifically averred by respondent No.4-bank that the
authorities passed an order and thereby transferred
the property in favor of respondent No.4-bank and the
name of respondent No.4-bank was duly mutated in
the revenue records under M.E No.4943 pertaining to
the suit land. The averments made in paragraph 3 of
the objections would clearly indicate that respondent
No.4-bank being the creditor would be first in the
queue for recovery of its debts. Therefore, other
creditors are to be relegated to the second place in
the order of their preference as per law. Therefore, it
is well within the authority of respondent No.4-bank to
object the enforcementability of a decree passed in
O.S.No.22/1997. This court would concur with the
reasons assigned by the executing court that present
petitioner/decree holder cannot enforce the decree
passed in O.S.No.22/1997, as respondent
No.1/judgment debtor has not cleared the dues of
Rs.3,95,111/-, which was the outstanding loan
amount as on the date of filing of objections by
respondent No.4-bank.
10. All these significant details would clearly
lead to one conclusion that, even as on the date of
filing of the suit, the bank had charge over the suit
land. Therefore, even if the petitioner has the benefit
of a decree passed by a competent civil court, I am of
the view that the said decree is not at all enforceable.
In the light of what is stated supra, I do not find any
material irregularity in the order under challenge.
11. The revision petition is devoid of any merits
is accordingly, dismissed.
Sd/-
JUDGE
EM/MBS
