Karnataka High Court
Sri.Adinath S/O Ramappa Padnad vs The Secretary on 7 August, 2023
Bench: S.R. Krishna Bysrkkj
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WP No.102534 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO. 102534 OF 2016 (GM-CPC)
BETWEEN:
SRI. ADINATH S/O. RAMAPPA PADNAD,
AGE: 49 YEARS, OCC: AGRICULTURIST,
R/O: MAIGUR VILLAGE, TQ: JAMKHANDI,
DIST: BAGALAKOT.
...PETITIONER
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE)
AND:
1. THE SECRETARY JAMKHANDI TALUKA
SHRI. PARSHWANATH ALPA
SANKYATARA PATTINA SAHAKARA
SANGH NIYAMIT, JAMKHANDI, DIST: BAGALKOT.
2. SRI. RAMANAGOUDA
S/O. SHEKARAPPA KAVATAKOPPA,
AGE: MAJOR, OCC: AGRICULTURIST,
Digitally signed
by JAGADISH T R R/O: MAIGUR VILLAGE, TQ: JAMKHANDI,
Location: HIGH DIST: BAGALKOT.
COURT OF
KARNATAKA
Date: 2023.08.10
12:33:52 +0530 3. SRI. JINNAPPA S/O. RAMAPPA NYAMAGOUDA,
AGE: MAJOR, OCC: AGRICULTURIST,
R/O: MAIGUR VILLAGE, TQ: JAMKHANDI,
DIST: BAGALKOT.
...RESPONDENTS
(BY SRI. SHIVARAJ BALLOLI AND SRI.RAMESH I.ZIRALI, ADVOCATES)
(NOTICE TO R2 & R3 DISPENCED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO, QUASH THE ORDER
DATED 15.02.2016 ON IA.NO.2 IN EXECUTION CASE NO.16/2014
PASSED BY THE LEARNED ADDITIONAL CIVIL JUDGE AND JMFC,
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JAMAKHANDI, PRODUCED AS ANNEXURE-D, AND DISMISS THE
I.A.NO.II AND DISMISS THE EXECUTION PETITION VIDE ANNEXUER-B.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition by judgment debtor No.1 in Execution
Petition No.16/2014 on the file of the Addition Civil Judge,
Jamkhandi, is directed against the impugned order dated
15.02.2016 passed on I.A. No.2, whereby the application
I.A. No.2 filed by the respondent No.1-decree holder under
Order XXI Rule 64 of the Code of Civil Procedure, 1908, for
sale of the attached property was allowed by the Executing
Court.
2. The material on record discloses that the
respondent No.1-decree holder has instituted the aforesaid
execution proceedings against the petitioner-judgment
debtor No.1 and respondents No.2 and 3-judgment debtors
No.2 and 3 to implement and enforce the judgment and
award dated 03.02.2006 passed by the Assistant Registrar
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of Co-operative Societies. In the said execution
proceedings, the property belonging to judgment debtor
No.1 having been attached, respondent No.1-decree holder
filed the instant application - I.A. No.2 under Order XXI
Rule 64 CPC seeking sale of the attached property. By the
impugned order, the Executing court allowed I.A. No.2
thereby directing sale of the attached property by way of
Court auction, aggrieved by which the petitioner-judgment
debtor No.1 is before this Court by way of the present
petition.
3. When the matter was listed before this Court on
18.03.2016, this Court stayed the further proceedings
before the Executing Court subject to the petitioner
depositing Rs.15,000/- before the Executing Court and the
same has been complied with by the petitioner-judgment
debtor No.1.
4. The main ground on which the petitioner assails
the impugned order is that the procedure prescribed under
Order XXI Rules 64 to 66 of CPC has not been followed and
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the same would render the impugned order illegal.
Reliance is placed upon the judgment of the Apex Court in
the case of Ambati Narasayya Vs. M.Subba Rao and
Another1, which has been followed by this Court in the
case of Adinath Vs. The Branch Manager, Karnataka Vikasa
Grammena Bank (W.P. No.62017/2012, disposed of
07.02.2014) to contend that without verifying the actual
value of the property and ascertaining as to whether the
entire property was required to be sold for the purpose of
satisfying the decree, it was impermissible for the
Executing Court to direct the sale of entire attached
property.
5. In this context, a perusal of the impugned order
will indicate that the procedure as prescribed under Order
XXI Rules 64 to 66 of CPC as well as the judgment of the
Apex Court and of this Court have not been followed by the
Executing Court and consequently, the impugned order
passed by the Executing Court deserves to be set aside
AIR 1990 SC 119
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and the matter requires to be remitted to the Executing
Court for reconsideration afresh in accordance with law.
6. In the result, I pass the following:
ORDER
i) The petition is hereby allowed.
ii) The impugned order dated 15.02.2016
passed on I.A. No.2 in Execution Case
No.16/2014 is hereby set aside.
iii) The matter is remitted to the Executing Court
for reconsideration of I.A. No.2 afresh in
accordance with law after providing a
reasonable and sufficient opportunity to the
parties.
iv) All rival contentions on all aspects of the
matter are kept open and no opinion is
expressed on the same.
Sd/-
JUDGE
KMS
Ct:vh
