Karnataka High Court
Smt Kavitha Jain vs M/S Ikf Home Finance Limited on 24 March, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.19332 OF 2021(GM CPC)
BETWEEN:
1. SMT. KAVITHA JAIN
D/O LATE HIRALAL NAHATA
AGED ABOUT 40 YEARS
R/AT H.NO.24/2
MBT STREET, NAGARATHPET
BANGALORE-560 001.
2. SRI. ANKHIT JAIN
S/O. RAJESH JAIN.B
AGED ABOUT 20 YEARS
RESIDING AT H. NO.24/2
MBT STREET, NAGARATHPET
BANGALORE-560 001. ...PETITIONERS`
(BY SRI. MADHUKAR NADIG, ADVOCATE)
AND:
M/S IKF HOME FINANCE LIMITED
(A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT 1956)
AND HAVING ITS REGISTERED OFFICE AT
H.NO.40-1-144, 1ST FLOOR,
CORPORATE ANDHRA PRADESH,
HAVING BRANCH OFFICE AT:
OLD NO.151/1 (NEW NO.56) 2ND FLOOR,
SS ARCADE, 6TH CROSS,WILSON GARDEN,
BANGALORE-560 027.
2
REPRESENTED BY ITS AUTHORIZED SIGNATORY,
MR.MOHAN NAIDU S/O.NAINI NAIDU
AGED ABOUT 50 YEARS,
BRANCH SALES MANAGER,
BANGALORE. ....RESPONDENT
(BY SRI. RAVIN SON.M, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 21.08.2021, PASSED IN EXECUTION
PETITION NO.438/2020 VIDE ANNX-K, ON IA NO.5 FILED ON
13.08.2021, BY THE PETITIONERS UNDER SECTION 151 OF CPC
VIDE ANNX-J, BY THE HONBLE VII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by Judgment debtors 1 and 2 in
Execution Petition No.438/2020 on the file of the City Civil
Sessions Judge, Bangalore, challenging the order dated
13.08.2021 (Annexure-J) and order dated 12.04.2021
(Annexure-K) on I.A.No.5 and I.A.No.4 respectively.
2. It is the case of the petitioners that, the petitioners are
the Judgment debtors in Execution Petition No.438/2020. It is
further stated in the writ petition that petitioner No.1, claims to
be the owner in possession of the subject property and the
petitioner has purchased the same from M/s Maxworth Realty
India Limited by a registered sale deed dated 28.08.2018 by
mortgaging the said suit property. It is further stated that, for
the reasons set out at para 4 of the writ petition, the petitioners
were not able to pay EMI and as such, the petitioners have
become default in repaying the instalment to the respondent
within the stipulated period and as such, the learned Arbitrator
by award dated 04.01.2020 has passed ex-parte order. The
petitioners came to know about the Arbitral award passed by
Arbitrator only after receiving notice in the Execution Petition
No.438/2020 filed by the respondent herein, seeking to enforce
the Arbitral Award against the petitioners herein for a sum of
`33,11,690/- (Rupees Thirty three lakhs eleven thousand six
hundred ninety only) with interest, as per Annexure-B and C
respectively. In the meanwhile, the respondent has filed I.A.No.2
under Order 5 rule 20, seeking permission to takeout paper
publication of sale notice to the Judgment debtors as per
Annexure- D and E respectively. The respondent filed had taken
paper publication of the sale notice to Judgment debtors as per
Annexure-D and E and the same was resisted by the Judgment
debtors. The Judgment debtors have also filed an application,
seeking direction to the decree holder to produce the original
documents such as approved plan, katha, sale deed, tax paid
receipt which are in the custody of the decree holder and also
filed I.A.No.4 for recalling the order dated 21.12.2020 passed by
the Trial Court for issuance of sale proclamation. The said
applications were contested by the respondent herein. The trial
Court, after considering the material on record, by impugned
order dated 21.08.2021, dismissed the applications filed by the
petitioners herein. Being aggrieved by the same, Judgment
debtors 1 and 2 have preferred this writ petition.
3. Heard Sri.Madhukar Nadig, learned counsel
appearing for the petitioners and Sri.Ravinson.M., learned
counsel appearing for the respondent/caveator.
4. Sri.Madhukar Nadig, learned counsel appearing for
the petitioners contended that the Trial Court has issued a sale
proclamation without following the provisions contained under
Order 21 rule 54 (2) of Code of Civil Procedure. He also referred
to the judgment passed by this Court in the case of
Y.RUPLA NAIKA SINCE DECEASED BY HIS L.Rs. Vs.
MOHAMMED MUSTHAFA & OTHERS - reported in 2014 (2)
KCCR 1705 and contended that the Trial court ought to have
followed mandatory provisions contained under Order 21 rule 66
(2)(e) amended in State of Karnataka. Accordingly, sought for
interference of this Court.
5. Per contra Sri.Ravinson.M, learned counsel for the
respondent sought to justify the impugned order passed by the
Trial Court.
6. In the light of the submissions made by the learned
counsel appearing for the parties, I have carefully considered
the impugned order dated 21.08.2021, wherein, the Trial Court,
rejected I.A.No.4 filed by the Judgment debtors and ordered for
the compliance of the Arbitral Award as such issued sale
proclamation in respect of the schedule property. Taking into
consideration the findings recorded by the Trial Court, I have
carefully considered the law laid down by this Court in the case
of Y.RUPLA NAIKA (supra). This Court, having taken note of
the amendment made in the State of Karnataka to Order 21 Rule
66(2)(e) of CPC, wherein, the Executing Court shall state the
value of the property as stated by the decree holder and the
value of the property as stated by the Judgment debtors in the
sale proclamation, at paragraph 24 to 28 of the judgment, has
observed that the Trial Court is required to consider the Order 21
Rule 54 (2) of CPC that the immovable property is brought for
sale and sale proclamation is required to be published in
conspicuous part of the Municipal Corporation office as required
under Rule 54 (2) read with Rule 66(2)(e) of Order 21 of CPC as
amended in the State of Karnataka.
7. In that view of the matter, I find force in the
submissions made by the learned counsel appearing for the
petitioners.
8. Accordingly, the impugned order passed by the Trial
Court is set aside and the same is remanded to the Executing
Court to consider the applications made by the
petitioners/Judgment debtors afresh, in the light of the
declaration of law made by this Court in case of Y.RUPLA
NAIKA (supra). In that view of the matter, I pass the following:
ORDER
(i) The writ petition is allowed
(ii) Order dated 21.08.2021 and order dated 12.04.2021
passed in Execution Petition No.438/2020 on
I.A.No.5 dated 13.08.2021 and I.A.No.4 dated
11.01.2021 on the file of VII Additional City Civil &
Sessions Judge, Bangalore are set aside.
(iii) Executing Court is required to consider the
applications in the terms of observations made
above.
Sd/-
JUDGE
GVP
