Karnataka High Court
Sri. R. Raghu vs Sri. G. M. Krishna on 17 August, 2023
Bench: R. Nataraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
CIVIL REVISION PETITION NO.539 OF 2015
BETWEEN:
SRI. R. RAGHU
S/O RAJANNA AVADHANI
AGED ABOUT 44 YEARS
TRUSTEE
VED VIGNAN MAHA VIDYA PEETH,
UDAYAPURA, 21ST K.M.,
KANAKAPURA ROAD,
BENGALURU SOUTH TALUK,
BENGALURU - 560062.
...PETITIONER
(BY SRI. S.S.NAGANANDA, SENIOR COUNSEL FOR
SMT. SUMANA NAGANAND, ADVOCATE)
AND:
1. SRI. G.M. KRISHNA
S/O LATE MARIGANGAIAH,
AGED ABOUT 60 YEARS,
RESIDING AT NO.7700,
TREYMANE PLACE, NO.101,
MCLEAN, VIRGINIA, 22102
UNITED STATES OF AMERICA
ALSO AT
STERLING RESIDENCY, NO.403-A,
A BLOCK, 5TH MAIN, 7TH CROSS,
RAJMAHAL 2ND STAGE,
BENGALURU - 560094
2
2. M/S KARNATAKA STATE FINANCE CORPORATION
A STATUTORY CORPORATION
INCORPORATED UNDER
THE PROVISIONS OF STATE FINANCIAL
CORPORATIONS ACT, 1951
HAVING ITS OFFICE AT
NO.1/1, THIMAIAH ROAD,
NEAR CANTONEMENT RAILWAY STATION,
BENGALURU - 560052.
...RESPONDENTS
(BY SRI. BRIJESH M. SINGH, ADVOCATE FOR RESPONDENT
NO.1;
SRI. BIPIN HEGDE, ADVOCATE FOR RESPONDENT NO.2)
THIS CRP IS FILED UNDER SECTION 115 OF THE CODE
OF CIVIL PROCEDURE, 1908 AGAINST THE ORDER DATED
28.09.2015 PASSED IN MISC NO.157/2014 ON THE FILE OF
THE I ADDL. DISTRICT JUDGE, BENGALURU RURAL DISTRICT,
BENGLAURU, ALLOWING THE PETITION FILED UNDER SECTION
47 OF CPC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER ON 26.07.2023 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
This revision petition is filed challenging an order
dated 28.09.2015 passed by the I Additional District
Judge, Bengaluru Rural District, Bengaluru (henceforth
referred to as 'District Court') in Misc.No.157/2014, by
which it set aside the auction sale of an immovable
agricultural land in Sy.No.67 of Agara village, Kengeri
Hobli, Bengaluru South Taluk, on the ground that the
auction purchaser had played fraud upon the Court.
2. The facts are though short and simple but the
proceedings are long drawn and elaborate. Thus, to avoid
undue verbosity, the facts collated from concluded
proceedings are sewn and summed up as follows:
3. An execution petition in Execution Petition
No.33/2000 was filed by Karnataka State Financial
Corporation (henceforth referred to as 'KSFC') to execute
an order in Misc.No.52/1996 to recover a sum of
Rs.2,61,28,017-57. An agricultural land measuring 5 ½
acres in Sy.No.67 of Agara village, being one of the
properties shown in the schedule to the execution petition,
was brought for sale. A sale at the spot was purportedly
held, where the bid of an individual (Petitioner) was the
highest at Rs.15,05,000-00. The Court felt the bid to be
very less having regard to the potentiality of the land as it
lay very close to Bengaluru City. A sale in the Court was
held soon thereafter and the individual at the spot sale
(petitioner) was the only bidder. When the Court
expressed the inadequacy of the price, he offered to
enhance his bid by a sum of Rs.3,00,000-00, which was
accepted and the sale was declared. The petitioner
deposited 25% of the bid on 19.04.2003 and the
remaining 75% on 27.05.2003. An application was filed in
the execution petition by "Ved Vignan Maha Vidyapeeth
Charitable Trust" (henceforth referred to as "Trust") for
issuance of a sale certificate and the affidavit was sworn to
by the petitioner himself, who claimed that the Trust had
purchased the land. The executing Court allowed the
application and a sale certificate was issued in favour of
the petitioner on 09.09.2005. The judgment debtor
(respondent No.1 herein) filed an application for setting
aside the sale on various grounds, which was rejected by
the executing Court on 16.01.2006 and confirmed by this
Court in MFA No.7981/2006 on 18.04.2007 and Special
Leave to Appeal (Civil) Nos.15832-15834/2007 were
dismissed on 14.09.2007. In the meanwhile, the judgment
debtor (respondent No.1 herein) conveyed land in a few
other survey numbers to his wife Smt.Arathi Krishna, in
terms of a gift deed dated 28.01.2006. Later, he initiated
proceedings for survey and identification of those lands on
the ground that the boundaries mentioned in the sale
certificate issued by the executing Court comprised of not
only Sy.No.67 that was sold in execution but also other
survey numbers namely Sy.No.71/2A, 179 that were not
sold. The attempt at survey of Sy.No.67 was spurned but
the survey of other survey numbers was kept open in
W.P.No.2173/2006. Later an attempt to survey
Sy.No.71/2A met with initial success, in as much as the
surveyor found that boundaries mentioned in the auction
sale certificate encompassed not only Sy.No.67 but also
Sy.No.71/2A and the Tahsildar directed the petitioner to
handover 4-34 acres of land to the respondent No.1 and
his wife. This was challenged by the petitioner in
W.P.No.52691/2014 and W.P.No.54468/2014 and this
Court directed the parties to approach the Civil Court,
which was confirmed by the Division Bench in
W.A.Nos.1094/2015, 1096/2015 and 2175/2015.
4. Later, the judgment debtor (respondent No.1
herein) filed a petition (Misc.No.157/2014) under Section
47 of CPC before the District Court contending that (i) the
actual purchaser was not the petitioner but the Trust which
played fraud on the Court, by propping up the petitioner to
purchase at the Court auction to avoid the prohibition
contained in Sections 79A, 80 of the Karnataka Land
Reforms Act, 1961 (henceforth referred to as Act, 1961),
which prohibited it from buying agricultural land (ii) that
the records in the execution petition disclosed that the
property to be auctioned was never identified and
therefore, sale of such unidentified property was illegal.
The District Court, found the contentions urged by the
judgment debtor (respondent No.1 herein) to be true and
consequently passed the impugned order setting aside the
sale and the confirmation of the sale as well as the sale
certificate.
5. Being aggrieved by the impugned order, the
petitioner has filed this Revision Petition on the following
grounds.
(i) That the Presiding Officer has passed the
impugned order on 28.09.2015 after receiving
the order of transfer dated 28.09.2015 which
came into force with immediate effect. Thus, he
contended that the impugned order is highly
suspicious and questionable and being one
without jurisdiction is liable to be set aside.
(ii) That questions raised by the respondent No.1 in
the Miscellaneous Petition were urged and
decided against him in the earlier rounds of
litigation, which culminated in the dismissal of
the Special Leave Petitions on 14.09.2007.
Therefore, he contended that the confirmation of
the sale in the name of the petitioner as a
trustee of the Trust was upheld by the executing
Court and confirmed by this Court. Therefore, he
contended that the principles of res judicata is
applicable and respondent No.1 cannot re-
agitate the same issue in the Miscellaneous
Petition. He contended that the principles of res
judicata are applicable to execution proceedings
and therefore, the District Court could not have
gone into the questions that were already
considered.
(iii) That in view of the findings in Execution Petition
No.33/2000, the respondent No.1 is estopped
from re-agitating the issue.
(iv) That the finding recorded by the District Court
that the petitioner had played fraud was not
based on any evidence but based on surmises
and conjectures. He contended that the sale
certificate was issued in the name of the
petitioner as trustee of the Trust. He contended
that the settled position of law is, the Trust is
not a legal entity and has no legal status but it
has to act through its trustees. He contends that
the petitioner being an agriculturist, is entitled
to hold agricultural property in his name on
behalf of the Trust. He contended that this
Court in an earlier round of litigation had gone
into the said contention and had rejected it on
the ground that the bar under Sections 79A and
79B of the Act, 1961 cannot be gone into by the
Civil Court and therefore, the District Court
committed an act of judicial impropriety in
rendering a finding contrary to the finding
already recorded.
(v) That the Miscellaneous Petition was highly
belated as the period of limitation for an
application under Section 47 of CPC is 3 years
from the date of dispossession. That the sale in
favour of the petitioner was confirmed on
27.08.2005 and the sale certificate was issued
on 09.09.2005 and hence, the petition filed in
the year 2014 was hopelessly barred by the law
of limitation.
(vi) That the relief sought for in the Miscellaneous
Petition is traceable to Article 127 of the
Limitation Act, 1963 and the period prescribed is
60 days from the date of sale and hence, the
Miscellaneous Petition is belated.
(vii) That the District Court committed an error in
glossing over the settled position of law that a
Trust is an obligation annexed to the ownership
of the property and the trustee is a legal owner
of the property belonging to the Trust.
Therefore, he contended that the petitioner was
entitled to purchase the property as a trustee of
the Trust.
(viii) That the finding of the District Court that Rule
138 of the Karnataka Civil Rules of Practice was
violated, was contrary to the records as Rule
138 concerned the conduct of the spot sale. He
contended that the spot sale took place on
08.04.2003 and the Court sale was held on
19.04.2003 and therefore, there was no
violation of the Rule 138 of the Karnataka Civil
Rules of Practice. He contended that the Court
without noticing this had mixed up the issues
regarding the spot sale and proclamation and
erroneously declared the sale as null and void.
He contended that the proclamation of sale was
caused by tom-tom on 21.03.2003 and a brief
note regarding the order of sale proclamation
and sale warrant was published in the Hindu
Newspaper and therefore, the finding of the
District Court that the bailiff was unable to
execute the proclamation as he could not
identify the property is erroneous and contrary
to the records.
(ix) That in view of the explanation to Order XXI
Rule 90 of CPC, any irregularity in the
attachment or proclamation does not vitiate a
sale.
(x) That the respondent No.1 had earlier invoked
Order XXI Rule 90 and Sections 47 and 151 of
CPC for setting aside the sale. Therefore, he
cannot file a second application under Section
47 of CPC but the District Court committed an
error in holding that the respondent No.1 had
approached the Court under Section 47 of CPC
after exhausting his remedy under Order XXI
Rule 90 of CPC by erroneously relying upon a
judgment of the Kerala High Court in G.
Rajarethna Naikkan vs. P. Parameswara
Kurup [AIR 1997 Kerala 361].
(xi) That the District Court failed to notice the
unreported judgment of a Co-ordinate Bench of
this Court dated 09.04.2012 where it was held
that the grounds urged in the affidavit should be
examined to ascertain whether such grounds lie
within the scope of Order XX1 Rule 90 of CPC or
falls exclusively under Section 47 of CPC.
(xii) That though the respondent No.1 styled the
application as one under Section 47 of CPC but
yet, he had raised grounds falling under Order
XXI Rule 90 of CPC.
(xiii) That the order accepting the bid of the petitioner
dated 19.04.2003, the confirmation of the sale
dated 27.08.2005 and the issuance of sale
certificate dated 09.09.2005 were challenged by
the respondent No.1 which was rejected by the
executing Court by order dated 16.01.2006
which was confirmed by this Court on
18.04.2007 and by the Hon'ble Apex Court on
14.09.2007. Therefore, the order dated
16.01.2006 has merged in the order of the
Hon'ble Apex Court. Consequently, the
respondent No.1 was not entitled to raise a
ground in a Miscellaneous Petition though such
ground had ceased to exist.
(xiv) That Miscellaneous Petition was therefore, a
clear abuse of the process of law and against
settled principles that there must be an end to
litigation.
(xv) That the District Court committed an error in
holding that the sale was illegal for want of
compliance with the provisions of Order XXI
Rules 66(1) and 66(2) of CPC and contended
that this ground was urged by the respondent
No.1 in the application filed under Order XXI
Rule 90 of CPC and the executing Court, this
Court as well as the Hon'ble Apex Court had
rejected it. Therefore, the District Court
committed an error in overreaching the orders
passed by it, by this Court and the Hon'ble Apex
Court.
(xvi) That the District Court committed an error in
holding that the petitioner was unable to prove
that he owned any agricultural lands. He
contended that the issue was not regarding the
petitioner holding agricultural land but the issue
was that the petitioner had fraudulently claimed
that he was an individual who had purchased.
He therefore contended that the District Court
had mixed up the issue and without proper
application of mind has passed the impugned
order.
(xvii) That the District Court had gone out of its way
to protect the interest of the respondent No.1 by
giving him another opportunity to make the
payment due to KSFC. He contended that the
District Court has not considered the rights that
had accrued in favour of the petitioner
consequent to the dismissal of the application
under Order XXI Rule 90 of CPC which was
confirmed by the Hon'ble Apex Court.
6. Per contra, the respondent No.1 stated in his
objections as follows:
(i) Though the property was purchased in Court
auction by the Trust out of the Trust funds, the
petitioner consistently took a false stand in
Execution Petition No.33/2000 and proceedings
arising therefrom that the auction purchaser is
an individual and not Trust. The executing
Court, accepting the false stand of the
petitioner dismissed I.A.No.IV filed by the
respondent No.1 for setting aside the sale on
that ground. That in the application filed for
confirmation of sale, the auction purchaser was
shown as a Trust represented by the petitioner
as trustee but the averments of the affidavit in
support of I.A.No.III were ambiguous without
clearly stating whether the auction purchaser
was a Trust or individual. However, in
W.P.No.47527/2014, the petitioner himself
conceded that the auction purchaser was a
Trust. It is therefore, contended that the
petitioner played fraud on the Court.
(ii) The insinuation against the Presiding Officer
that he had passed the impugned order after
receiving the transfer orders were uncalled for.
The impugned order was neither passed in
haste or hurry as the petitioner entered
appearance on 17.01.2015 and after taking
repeated adjournments, objections were filed
on 04.04.2015. After recording that there is
no oral evidence, arguments were heard and
by 29.07.2015, the arguments were concluded
in full. At the request of the petitioner, the
case was adjourned to 06.08.2015. However,
on that day an application under Order VII
Rule 11 of CPC was filed. The Court heard
arguments on both the application as well as
on the main petition till 17.08.2015 and on
conclusion of arguments, it was posted to
19.08.2015 for orders. However, at the
request of the petitioner, the case was
deferred to enable him to furnish citations.
Thereafter on 21.08.2015 and 25.08.2015, the
arguments of the petitioner were heard and
the case was posted to 27.08.2015 for further
arguments. At that stage, the petitioner who
had filed W.P.No.36169/2015 challenging the
action on the part of the Court in not
considering the application for rejection prior
to considering the petition on merits submitted
that the proceedings were stayed.
Consequently, the case was adjourned from
time to time awaiting orders of this Court. This
Court dismissed the petition on 23.09.2015
which was brought to the notice of the District
Court on the next hearing date i.e.,
26.09.2015. The petitioner submitted his
arguments once again and after conclusion,
the case was posted for orders on 28.09.2015.
He contended that once the case was reserved
for orders, then it was prerogative of the Court
to pronounce it on any date.
(iii) That the contention that the petition is barred
by res judicata and issue estoppel, is
misconceived as the question of fraud played
on the Court was never subject matter of the
earlier proceedings but such fraud came to
light only in the year 2014 when the petitioner
admitted in W.P.No.47527/2014 that the
auction purchaser was the Trust and that he
was only a name giver. In any event, fraud
unravels everything and notwithstanding the
dismissal of an application under Order XXI
Rule 90 of CPC, a petition under Section 47 of
CPC would still lie for a declaration that the
sale is null and void on the ground of fraud.
(iv) That the contention that the Trust is not a legal
entity but has to act through its trustees and
therefore, the purchase of the property by the
Trust in the name of the trustees is neither
unlawful nor illegal, is an afterthought which
does not efface false statement made by the
petitioner.
(v) That the period of limitation for filing a petition
under Section 47 of CPC is 3 years from the
date of knowledge of the fraud committed and
therefore, the petition is not barred.
vi) That the proceedings under Section 47 of CPC
are summary in nature and do not require
recording of evidence. When the allegation of
fraud is based on undisputed Court records,
the question of leading oral evidence to
establish the fraud does not arise.
vii) That the contention that there was no violation
of Rule 138 of the Karnataka Civil Rules of
Practice is misconceived as the Court bailiff,
who was entrusted with the execution of an
attachment warrant in respect of the subject
property, had returned it unexecuted with an
endorsement that the property could not be
identified without surveyor making
measurement and sketch. Likewise, the
Registry of the executing Court had recorded
on 30.09.2000 as "As per shara of Bailiff, P.O.
unexecuted for want of identity of property
which was not possible by Dhr." No steps were
taken for identification of the property, which
was to be brought for sale and therefore, sale
of an unidentified property is inconceivable in
law and the sale is void and nullity.
viii) That the petitioner had encroached into the
adjacent Sy.Nos.179, 71/2A and 70/1st Block
under the guise of false boundaries mentioned
in the sale certificate.
7. Elaborating on the grounds urged in support of
the petition, the learned Senior Counsel representing the
petitioner submitted that,
(a) The respondent No.1 is attempting to resuscitate
issues that are decided in earlier proceedings and as
principles of res judicata are applicable to execution
proceedings, the respondent No.1 is strictly barred from
again raising the same issues. He relied upon the following
judgments in support of his contentions:-
(i) Mohanlal Goenka vs. Benoy Krishna
Mukherjee and others [AIR 1953 SC 65]
(ii) Habibur Rahman vs. Vijay Charan Abhay
Charan Dubey and Bros. [AIR 1959 Pat 31]
(iii) Jambu Anna vs. Shri. Bapu [AIR 1972 Bom
141].
(b) He contended that in view of the findings
recorded in Execution Petition No.33/2000 on the grounds
urged in the Miscellaneous Petition now filed, the
respondent No.1 is estopped from re-agitating the issues.
In this regard, he relied upon the following judgments:-
(i) Siddagangaiah (Dead) Through legal
representatives vs. N.K.Giriraja Shetty
(Dead) Through legal representatives
[(2018) 7 SCC 278]
(ii) Hope Plantations Ltd. v. Taluk Land
Board, Peermade and another [(1999) 5
SCC 590]
(c) He contended that the instant Miscellaneous
Petition is a gross abuse of process of Court in as much as
the auction sale that was brought about on 19.04.2003
was though unsuccessfully challenged before the executing
Court and this Court as well as the Hon'ble Apex Court, the
respondent No.1 has now raised a similar contentions
which is a clear abuse of process of law. In this regard, he
relied upon the following judgment:
(i) In Re: Smt. Roma Roy Chowdhury
(1996) 2 Calcutta L.J. 58
(d) He contended that an application under Section
47 of CPC can be filed only once and the respondent No.1
having already exhausted it by filing an application under
Order XXI Rule 90 read with Section 47 of CPC cannot now
file a petition under Section 47 of CPC. In this regard, he
relied upon the following judgment:-
(i) R.P.A. Valliammal vs. R. Palanichami Nadar
[AIR 1997 SC 1996]
(e) He contended that the order of the executing
Court rejecting the application filed by the respondent No.1
for setting aside the auction sale has merged in the
judgment of the Hon'ble Apex Court in SLP (Civil)
Nos.15832-15834/2007 and therefore, the impugned order
passed by the District Court runs contrary to the earlier
judgments, which is impermissible. In this regard, he
relied upon the following judgment.
(i) M/s Gojer Brothers (Pvt) Ltd. vs Shri
Ratan Lal Singh [(1974) 2 SCC] 453
(f) He contended that the Miscellaneous Petition was
filed on the basis of alleged fraud and the Court was bound
to record oral and documentary evidence, without which
the Court could not have rendered a finding. In support of
this contention, he referred to the following judgments:-
(i) A.C.Anantha Swamy and others. vs.
Boraiah (dead) by LRs [(2004) 8 SCC
588]
(ii) Gayatri Devi and others vs. Shashi Pal
Singh [(2005) 5 SCC 527]
(g) He contended that the Miscellaneous Petition is
clear abuse of process of law and Court as the respondent
No.1 was trying the resuscitate the questions which are
concluded and decided. In support of this contention, he
relied upon the following judgments.
(i) Ravinder Kaur vs. Ashok Kumar and
another [(2003) 8 SCC 289]
(ii) Ramrameshwari Devi and others vs.
Nirmala Devi and others [(2011) 8 SCC
249]
(h) He contended that judicial discipline and comity
requires the Court to follow the earlier decisions passed
inter-partes concerning the same subject matter. He
contended that the question whether there were other
survey numbers lying within the boundaries mentioned in
the sale certificate were the subject matter of
W.P.Nos.2173/2006, 52691/2014 and 54468/2014 and
therefore, the executing Court could not have rendered
any contra finding. In support of this contention, he relied
upon the following judgments:
(i) Safiya Bee vs. Mohd. Vajahath Hussain
Alias Fasi [(2011) 2 SCC 94]
(ii) U.P. Gram Panchayat Adhikari Sangh and
others vs. Daya Ram Saroj and others
[(2007) 2 SCC 138]
(i) He further contended that even if a wrong
decision is handed down by the Courts, the same are
binding upon the parties and they cannot wriggle out of it.
In support of this contention, he relied upon the following
judgment:-
(i) Vaijinath s/o Yeshwanta Jadhav
deceased by legal representatives and
others vs Afsar Begum w/o Nadimuddin,
deceased by legal representatives and
others [(2020) 15 SCC 128]
(j) The learned Senior counsel contended that
principles of constructive res judicata are applicable in the
present case and the respondent No.1 having given up his
claim in respect of the auction property which was noticed
by the Division Bench of this Court in W.A.Nos.1025/2007
and 3763/2011, cannot now renew the challenge on
precisely the same grounds which were urged in the earlier
rounds of litigations. He drew support from the following
judgment:-
(i) State of U.P. Vs. Nawab Hussain [(1977) 2
SCC 806]
(k) He contended that the respondent No.1 could not
have raised similar contentions that were already decided
and that this Court under Section 115 of CPC is entitled to
undo the mistake committed by the Lower Court. In this
regard, he relied upon the following judgments:-
(i) Food Corporation of India and Another
vs Yadav Engineer & Contractor
[(1982) 2 SCC 499]
(ii) Madan Mohan Kotal vs Gobinda Kotal
and another [(2002) 9 SCC 457]
(l) He contended that the possession of the property
in Sy.No.67 lying within the boundaries mentioned in the
sale certificate dated 09.09.2005 was handed over to the
petitioner and therefore, the boundaries prevail over the
survey number and the extent. Therefore, the respondent
No.1 cannot now contend that there were other survey
numbers lying within the boundaries mentioned in the sale
certificate. In support of this contention, he relied upon
the following judgment:-
(i) Subbayya Chakkiliyan vs. Maniam
Muthaiah Goundan and another [AIR
1924 MADRAS 493]
(ii) Palestine Kupat AM Bank Co-operative
Society Ltd., vs. Government of Palestine
[AIR 1948 PC 207]
(iii) Dr. Jayasheela Venu and another vs
A.J.F.D'souza, represented by Lrs and
Others [(2021) SCC Online KAR 165]
(m) He claimed that the grounds that are available
for setting aside an auction sale are unavailable in a
petition under Section 47 of CPC. He contended that the
claim of the respondent No.1 that the auctioned property
was not identified before it was sold, was the ground
available for setting aside the sale and not in a petition
under Section 47 of CPC. In support of this contention, he
relied upon the following judgments:-
(i) S.A.Sundararajan vs A.P.V.Rajendran [(1981)
1 SCC 719]
(ii) K. Jayarajan and others vs Sambasivan
[(2022) 1 KLJ 789]
8. He relied upon an order passed by the Division
bench of this Court in W.A.Nos.1094/2015, 1096/2015 and
2175/2015, wherein the respondent No.1 and his wife had
challenged the order dated 03.02.2015 passed by the
learned Single judge of this Court in W.P.Nos.52691/2014,
54468/2014 and contended that the issue that petitioner is
in possession of larger extent of land was considered by
this Court and therefore, this Court should not again go
into questions which are settled.
9. Per contra, the learned counsel for respondent
No.1 contended that in response to the application filed by
respondent No.1 under Order XXI Rule 90 of CPC, which
contained a ground namely that the property was
purchased by the Trust and not the petitioner, the
petitioner replied,
"The allegation that the auction purchaser is
a public Trust is once again an irresponsible
statement without verifying the fact. The auction
purchaser is an individual by name R. Raghu, who
is an agriculturist and the sale certificate is also
issued in the name of an individual named Sri. R.
Raghu."
He contended that based on the above, the District
Court in terms of the order dated 16.01.2006 held,
"Thus, as already discussed supra, as the
auction purchaser is an individual and not a Trust,
as the sale deed is also issued in favour of the
individual, I.A.No.IV and VIII are liable to be
dismissed."
He contended that when the above order was
challenged in MFA No.7981/2006, where the Trust was
arrayed as a party, the petitioner filed an application to
implead himself as a respondent in his individual capacity
and sworn to an affidavit where he claimed,
"The three Annexures produced by me
categorically manifest that, I am of the Auction
Purchaser, the Sale Certificate having been issued
in my favour and I.A.No.VII filed by me is allowed
and I have taken possession of the property. The
Ved Vignan Maha Vidya Peeth, the second
respondent in the above writ petition is nothing to
do with the property as I have purchased in my
individual name and I am the Trustee of the said
Organization. The petitioner has not made me the
party even though I am the necessary and property
party in the writ petition".
He further claimed that on the date of acceptance of
the bid i.e., on 19.04.2003, the petitioner represented
before the executing Court as a purchaser in his individual
capacity and the same is evident from the order dated
19.04.2003, which is extracted below:-
"Sale is held in open Court. There is no other
bidder before the court except the highest bidder at
the spot by name Sri. R. Raghu who claims to be
agriculturist and a trustee of Ved Vignan Maha Vidya
Peeth, Bengaluru. When the Court expressed that
the sale price bid by him may be insufficient, the
said bidder Sri. R. Raghu expressed that he is
prepared to bid for a higher price of Rs.18,50,000/-.
The learned counsel for bidder Sri. Rajashekar
Kanavi, who files a vakalath also for the bidder
submits that the valuation of the market price for the
State Government for the purpose of registration in
Bangalore Urban District is Rs.2.5 lakhs per acre of
agricultural land in Agara Village.
In the circumstances of the case, the highest
bid of Rs.18.5 lakhs for 5 acres of land brought for
sale is accepted subject to deferring the confirmation
of sale till the claim petition of State Bank of Mysore
is decided.
The sale is declared in favour of Sri. R. Raghu
in open court for a sum of Rs.18.5 lakhs in respect of
the properties brought for sale. The deposit shall be
made in accordance with law. Confirmation of the
sale is deferred till the decision of the claim petition
under Order 21 Rule 58 CPC in Misc.Petition
No.23/2003."
He contended that contrary to the above,
W.P.No.47527/2014 was filed by the petitioner challenging
a survey notice dated 01.10.2014, where he pleaded as:
"The Trust had purchased agricultural land
bearing Survey No.67, situated at Agara village,
Kengeri Hobli, Bangalore South Taluk in a court
auction held on 19.04.2003. The court auction was
conducted in Execution Case No.33/2000 filed by
the Karnataka State Financial Corporation against
one G.M. Krishna".
Further, he contended that even in the objection filed
by the petitioner to the present petition, it was stated,
"In the instant case, it is relevant to mention
herein that the property has been purchased by the
Trust from out of the Trust funds in the name of its
trustee and it is evident from the sale certificate in
favour of the respondent No.2 and the application
made by respondent No.2 for confirmation of sale".
He therefore, contends that the aforesaid made it
more than clear that the property was purchased by the
Trust out of its funds and therefore, the auction purchaser
was the Trust and not the petitioner. He submits that if
only the petitioner had participated in the auction as the
trustee of the Trust, the Court would not have accepted
the bid as the Court cannot be a party to violation of
Section 80 of the Act, 1961. He submitted that the
allegations made against the Presiding Officer were
uncalled for. He contended that though the petitioner
entered appearance in Miscellaneous Petition No.157/2014
on 17.01.2015 but objections were filed on 04.04.2015. He
contended that the Court held that there is no oral
evidence and called upon the parties to address arguments
and by 29.07.2015, the arguments of the petitioner and
respondents were concluded. However, at the request of
the petitioner, the case was adjourned to 06.08.2015 on
which day, the application under Order VII Rule 11 of CPC
was filed. He contended that thereafter the arguments
were heard on the main petition as well as application till
17.08.2015 and the case was posted to 19.08.2015 for
orders on the application and the main petition. Though
the case was posted for orders, it was deferred so as to
enable the petitioner to furnish citations in support of the
case and the case was heard on 21.08.2015 and
25.08.2015 and posted for further arguments on
27.08.2015. The petitioner thereafter furnished copy of an
order in W.P.No.36169/2015 and the case was adjourned
awaiting the orders of this Court. He submitted that
W.P.No.36169/2015 was dismissed on 23.09.2015 which
was brought to the notice of the District Court on
26.09.2015. He contended that the learned counsel for
the petitioner addressed arguments once again and the
case was posted on 28.09.2015 on which date, the
impugned order was passed. He contended that this Court
in W.P.No.36169/2015 has noticed the dilatory tactics
indulged in by the petitioner and imposed cost of
Rs.25,000/-. He contended that the question of res
judicata or issue of estoppel do not arise as fraud played
on the Court gives raise to a cause of action to challenge
any order or proceeding even in collateral proceeding. He
submitted that the fraud played by the petitioner came to
the knowledge of respondent No.1 only in the year 2014
when an assertion was made in W.P.No.47527/2014 and
therefore, the petition could not be dismissed on the
ground of limitation. He submitted that the order sheet in
Execution Petition No.33/2000 disclosed that the bailiff
could not identify the property at the time of sale
proclamation and no effort was made to identify the
properties even on the date of declaration of sale namely,
19.04.2003. He therefore, contended that the sale of an
unidentified property in Court auction is inconceivable in
law and hence, the sale dated 19.04.2003 is null hence,
void. He submitted that unless the sale proclamation was
made, no spot sale could be held at the property. He
submitted that this Court in Madappa vs. Lingappa
[1986 (2) Kar.LJ 52] had held that the act of affixing the
sale proclamation and attaching the property and holding a
spot sale at the spot are mandatory and any absence
would render the sale void. He submitted that the
respondent No.1 after exhausting his remedy for setting
aside the sale was entitled to file an application under
Section 47 of CPC and mere mentioning of the provision of
law as Section 47 read with Order XXI Rule 90 of CPC does
not take away the right of the respondent No.1. He
therefore, contended that the grounds urged in support of
the revision petition are superfluous and are liable to be
rejected.
10. The learned counsel for the respondent No.1
relied upon the following judgments:-
(a) Finality of litigation cannot be pressed to the
extent of such an absurdity that it becomes an engine of
fraud in the hands of dishonest litigants.
(i) S.P.Chengalvaraya Naidu (Dead) by LRS vs
Jagannath (Dead) by LRS and another
[(1994) 1 SCC 1]
(ii) Hamza Haji vs State of Kerala and another
[(2006) 7 SCC 416]
(iii) A.V.Papayya Sastry and others vs Govt. of
A.P. and others [(2007) 4 SCC 221]
(iv) Meghmala and others vs G. Narasimha
Reddy and others [(2010) 8 SCC 383]
(v) Arun Lal and others vs Union of India and
others [(2010) 14 SCC 384]
(vi) Narayan Bhimji Vadangale and another vs
Hukumchand Chunilal Thole and another
[(1992) 1 SCC 497]
(vii) Mannem Peda Narisi Reddi vs.
Maddivenkayya died and others [AIR 1977
AP 234]
(viii) Narayan Bhimji Vadangale and another vs.
Hukumchan Chunilal Thole and another [AIR
1992 SC 503]
(b) That Rule 138 of the Karnataka Civil Rules of
Practice is inviolable and mandatory and non-compliance
should result in invalidation of sale.
(i) Channabasappa vs Nanjundappa [ILR 1986
KAR 3536]
(c) That a party who has received a benefit under
an erroneous order of the Court must restore it to the
other party.
(i) Kavita Trehal and another vs. Valsara
Hygiene Products Ltd., [AIR 1995 SC 441]
(ii) T. Ramachandra and others vs. N.
Ranganatha Chettiar [2003 4 Kant.LJ 467]
(d) That the admission made in pleadings is the
best proof and in the present case, the petitioner had
himself stated in W.P.No.47257/2014 that the Trust was
the purchaser. He therefore contends that there was no
need for any oral evidence. In this regard, he relied upon
the following judgments:
i) Nagindas Ramdas vs. Dalpatram
Iocharam [AIR 1974 SC 471]
ii) Ajodhya Prasad Bhargava vs. Bhawani
Shanker Bhargava and another [AIR
1957 ALL 1]
11. At the conclusion of the hearing, this Court
queried the learned Senior counsel for the petitioner
whether the three portions measuring 36 guntas, 1-24
acre and 3 acres in Sy.No.67 of Agara village, which were
the subject matter of the execution petition, lay adjacent
to each other and whether the area of land lying within the
boundaries mentioned in the sale certificate was 5-20
acres or more?
12. The learned Senior counsel submitted that the
petitioner is in possession of entire extent of land lying
within the boundaries mentioned in the sale certificate.
Even after being repeatedly asked whether the area in
possession of petitioner is 5-20 acres or more, he stoically
claimed that he was not in a position to answer whether
the extent of land was 5-20 acres of land or more but
claimed that the petitioner is in possession of land lying
within the boundaries mentioned in the sale certificate.
Therefore, this Court felt that the learned Senior counsel
was unwilling to answer a pertinent question and
deliberately failed to assist the Court. The petition was
then reserved for "Orders".
13. In order to get a grip of the facts, the records
in Misc.No.52/1996 and Execution Petition No.33/2000 and
Misc.No.157/2014 were secured. On going through the
records in Execution Petition No.33/2000, it was found that
the petitioner herein had failed to deposit 75% of the sale
price within 15 days as mandated under Order XXI Rule 85
of CPC and in view of the Judgment of the Hon'ble Apex
Court in the case of Manilal Mohanlal Shah and others
vs. Sardar Sayed Ahmed Sayed Mahmad and another
[AIR 1954 SC 349], where it was held,
"If the payment is not made within the
period of fifteen days, the Court has the discretion
to forfeit the deposit and there the discretion ends;
but the obligation of the Court to resell the
property is imperative. A further consequence of
non-payment is that the defaulting purchaser
forfeits all claim to the property."
14. Likewise, in the case of Sardara Singh
(dead) By Lrs and another vs. Sardara Singh (dead)
and others [(1990) 4 SCC 90], the Hon'ble Apex Court
held,
"It is clear from the above observations that
this Court came to the conclusion that both the
initial deposit and the subsequent payment of the
purchase money within the time allowed are
mandatory under Rules 84 and 85 of Order XXI
CPC and the Court is bound to re-sell the property
in the event of there being a default as the sale is
non-est. Where there is no sale in the eye of law,
there can be no question of applying for setting
aside the sale on the ground of material
irregularity. Non-payment of the balance amount
had the effect of rendering the entire sale null and
void."
15. This is also the law declared by the Hon'ble
Apex Court in Balram, S/o Bhasa Ram vs. Ilam Singh
and others [AIR 1996 SC 2781], Shilpa Shares and
Securities and others vs. National Cooperative Bank
Ltd., and others [(2007) 12 SCC 165] and Nirmal Singh
by Lrs. vs. Bhatia Safe Works and another [(2016) 6
SCC 397].
16. In a judgment reported in ILR 20 Bombay
745 in the case of Motiram Raghunath by LRs. and
others vs. Bhivraj Valad Khevraj, it was held,
"Now the question to be determined in the
case is whether the annual vacation to the Court
can be considered as a holiday under Section 307
of the Code of Civil Procedure?"
"We agree with the Subordinate Judge that
the time during which a Court is closed for the
vacation is not a holiday within the meaning of
Section 307, Code of Civil Procedure. Days on
which the office is open and the purchase money
could have been paid are office days."
17. The learned Senior counsel contended that the
Court sale was held on 19.04.2003, which was the last
working day for the Court as it closed from 20.04.2003 for
Summer Vacation and the balance 75% was deposited on
27.05.2003 after the re-opening of the Court, which was
permitted by the executing Court. He contended that this
question was already considered by the executing Court in
Execution Petition No.33/2000 and this Court in MFA
No.7981/2006 and therefore, this Court cannot take a
contrary opinion.
18. Per contra, the learned counsel for the
judgment debtor (respondent No.1 herein) contended that
the executing Court had no discretion to extend the time
and the office of the Court is not closed and the petitioner
could have deposited the balance 75% within 15 days. He
contended that the sale is void and cannot be resurrected.
19. I have given by anxious consideration to the
contentions urged by the learned Senior counsel for the
petitioner as well as the learned counsel for the
respondent No.1. I have also perused the records in
Misc.No.52/1996 as well as Execution Petition No.33/2000
as well the impugned order passed by the District Court.
20. Before, I consider the case on merits, it is
appropriate to first consider the allegation made against
the District Court that the Presiding Officer even after
receiving the order of his transfer on 28.09.2015 had
passed the impugned order on the same day and
therefore, it was suspicious and questionable.
21. The records in Miscellaneous Petition
No.157/2014 disclose that the respondent No.1 was a
resident in the United States of America. It further
discloses that after objections were filed, the respondent
No.1 stated that he had no oral evidence and hence, the
case was listed for arguments. The respondent No.1
claimed that he was leaving India on 30.03.2015 and that
he was suffering from cancer and therefore requested that
the case be heard on day today basis (refer order sheet
dated 26-03-2015). Nonetheless, the District Court posted
the case on 04.04.2015. The case was first listed for
arguments on 15.04.2015 on which date, written
submissions were submitted by the counsel for respondent
No.1. At the request of the counsel for petitioner, the case
was adjourned to 18.04.2015 on which day too,
adjournment was sought for and the case stood posted to
22.04.2015. Again on 22.04.2015, time was sought by
petitioner which was objected by respondent No.1 who had
come down from Washington. The case was adjourned to
24.04.2015 on which day too, adjournment was sought for
and the case was adjourned to 09.06.2015. This continued
on 12.06.2015, 17.06.2015, 26.06.2015, 15.07.2015,
27.07.2015. The counsel for petitioner therein (respondent
No.1 herein) was heard and the case was adjourned to
hear the respondent No.2 therein (petitioner herein) to
06.08.2015. On that day, the respondent No.2 therein,
who had already concluded his arguments, mischievously
filed an application under Order VII Rule 11 of CPC to
reject the petition. The Court heard the application and
posted the case to 13.08.2015 for further arguments and
on the said date, arguments were heard and the case was
adjourned to 17.08.2015 for reply of respondent No.2
therein. On 17.08.2015, the case was heard in full and was
posted for orders on the main petition as well as on the
application on 19.08.2015. On the request of the counsel
for respondent No.2 therein, passing "orders", was
deferred till 21.08.2015. Taking advantage of this, the
counsel for respondent No.2 therein addressed arguments
and the case was listed on 25.08.2015 to hear the
respondent No.2 therein. Again on 25.08.2015, the
counsel for respondent No.2 therein addressed arguments
and the case was adjourned to 27.08.2015. On
27.08.2015, the counsel for respondent No.2 therein filed
a memo stating that the proceedings were stayed by this
Court in W.P.No.36169/2015. The District Court posted
the case on 08.09.2015, 14.09.2015, 19.09.2015,
26.09.2015 awaiting further orders from this Court. On
26.09.2015, it was reported that W.P.No.36169/2015 was
dismissed with exemplary cost of Rs.25,000-00. This Court
had castigated the respondent No.2 therein (petitioner
herein) for not only delaying the proceedings but also for
not bringing to the notice of the District Court about the
filing of W.P.No.36169/2015 and hence, imposed
exemplary cost and directed the District Court to conclude
the hearing within seven days and to dispose off the case
by 17.10.2015. Accordingly, the further arguments were
heard and the case was posted on 28.09.2015 for "orders".
No doubt, the Presiding Officer was transferred with effect
from 28.09.2015 but by that time, the "orders", which
perhaps was ready, as pronounced on that day. There is
nothing to show that the order transferring the Presiding
Officer was intimated to him before he passed the
impugned order. Therefore, the allegation made against
the Presiding Officer is extremely uncharitable and hence
the contention of the learned Senior counsel that the
District Court committed an error in passing the impugned
order is liable to be rejected.
22. The contentions urged by the learned Senior
counsel for the petitioner and the counsel for the
respondent No.1 throws up the following questions, which
need to be answered:
(i) Whether, the actual purchaser of the land
was "Ved Vignan Maha Vidya Peeth" and
not the petitioner? If yes, whether this
amounted to playing fraud on the Court ?
Whether this question was urged, argued
before the Courts in the earlier rounds of
litigation and answered and therefore the
respondent No.1 is barred from re-
agitating it ? Whether the petition under
Section 47 of CPC was not maintainable
and whether it was barred by the law of
limitation?
(ii) What would be the consequences in view
of the claim of the petitioner that "Ved
Vignan Maha Vidya Peeth" and not he, was
the purchaser of the land in question ?
(iii) Whether the sale in favour of the
petitioner for non-deposit of 75% of the
auction price within 15 days, was void by
virtue of Order XXI Rule 86 of CPC ?
(iv) Whether, the executing Court committed
an error in not getting the boundaries of
the land fixed, even after the Court Bailiff
and Decree Holder reported that the
property could not be identified and
whether the executing Court fell in error in
not considering an application filed by
Decree Holder for appointment of
"Cadastral Surveyor" as a Commissioner
to identify the property before further
steps were taken to bring the property for
sale ?
(v) Whether, the Courts are empowered to
correct the mistakes committed by it or
whether the Courts can put a party at peril
due to a mistake committed by it ?
23. Before answering the aforesaid questions, it
is imminent to first underscore the fact that this Court is
conscious that the challenge to the auction sale held by the
Court was turned down by the executing Court by an order
dated 16.01.2006 which was upheld by this Court in MFA
No.7981/2006 in terms of the order dated 18.04.2007 and
a petition for Special leave filed before the Hon'ble Apex
Court in SLP (Civil) Nos.15832-15834/2007 were
dismissed on 14.09.2007. Therefore, there cannot be any
doubt that the respondent No.1 cannot raise the same
questions that were concluded in the earlier round of
litigation. To that extent, the contention of the learned
Senior counsel for the petitioner that the principles of res
judicata are applicable even in execution proceedings
deserves to be accepted, subject of course to the caveat,
that the Court always retains the power in that proceeding
or in any collateral proceeding to undo any order obtained
fraudulently by any party to the proceeding. The Judgment
of the Hon'ble Apex Court in A.V.Papayya Shastry,
supra, is apposite and the relevant paragraphs are
extracted below:-
"21. Now, it is well-settled principle of law
that if any judgment or order is obtained by fraud,
it cannot be said to be a judgment or order in law.
Before three centuries, Chief Justice Edward Coke
proclaimed;
"Fraud avoids all judicial acts, ecclesiastical
or temporal".
22. It is thus settled proposition of law
that a judgment, decree or order obtained by
playing fraud on the court, tribunal or authority is a
nullity and non-est in the eye of law. Such a
judgment, decree or order - by the first Court or by
the final Court - has to be treated as nullity by
every court, superior or inferior. It can be
challenged in any court, at any time, in appeal,
revision, writ or even in collateral proceedings."
24. Similarly in S.P. Chengalvaraya Naidu,
supra, the Hon'ble Apex Court held as follows:-
"The principle of "finality of litigation" cannot
be pressed to the extent of such an absurdity that
it becomes an engine of fraud in the hands of
dishonest litigants. The courts of law are meant for
imparting justice between the parties. One who
comes to the court, must come with clean hands.
We are constrained to say that more often than
not, process of the court is being abused. Property-
grabbers, tax-evaders, bank-loan-dodgers and
other unscrupulous persons from all walks of life
find the court-process a convenient lever to retain
the illegal gains indefinitely. We have no hesitation
to say that a person, who's case is based on
falsehood, has no right to approach the court. He
can be summarily thrown out at any stage of the
litigation."
25. In Meghmala, supra, the Hon'ble Apex Court
summed up the power of Court to undo fraudulent acts,
where it held as follows:
"28. It is settled proposition of law that
where an applicant gets an order/office by making
misrepresentation or playing fraud upon the
competent authority, such order cannot be
sustained in the eyes of law. "Fraud avoids all
judicial acts, ecclesiastical or temporal." (Vide S.P.
Chengalvaraya Naidu (dead) by L.Rs. Vs.
Jagannath (dead) by L.Rs. & Ors. AIR 1994 SC
853). In Lazarus Estate Ltd. Vs. Besalay (1956) 1
All ER 349(CA)), the Court observed without
equivocation that (QB p.712) "No judgment of a
court, no order of a Minister, can be allowed to
stand if it has been obtained by fraud. Fraud
unravels everything."
26. The learned Senior Counsel for the petitioner
did not dispute these settled principles of law but
contended that there was no fraud committed by the
petitioner warranting setting aside the auction sale and the
consequent sale certificate. However, this contention would
be dealt with while answering with the first question.
27. Now coming to the first question, the
proceedings in Execution Petition No.33/2000 disclose that
the petitioner was the auction purchaser at the spot and in
the Court. After the sale was declared by the Court in
favour of the petitioner, an application under Order XXI
Rule 94 of CPC was filed on 21.03.2005 in Execution
Petition No.33/2000, by "Ved Vignan Maha Vidya Peeth" to
be impleaded in the case and it sought the issuance of a
sale certificate confirming the sale of Sy.No.67. In the
affidavit accompanying this application, the petitioner
herein himself claimed,
"1. That I am representing the impleading
institution in my official capacity as one of its
Trustees and also being an agriculturist, am
intending buyer and being conversant with the
facts of the case I am deposing hereto.
2. That the petition schedule properties are the
adjacent landed properties of the Ashram, which is
proposing to enter herein as a intending purchaser
of the schedule properties put up for sale.
3. That on 19-04-2003, we were declared as
the highest bidders to the schedule land for
Rs.18,50,000-00"
28. This application filed by "Ved Vignan Maha
Vidya Peeth" was allowed and the auction was confirmed
on 27.08.2005 and a sale certificate dated 09.09.2005 was
issued in favour of the petitioner. The respondent No.1 in
his application for setting aside the sale under Order 21
Rule 90 of CPC claimed that the auction purchaser was a
Trust and not the petitioner and therefore, the petitioner
had played fraud to overcome Sections 79A and 80 of the
Act, 1961. In the objections filed by the petitioner to this
application, he claimed that he was a trustee of the Trust
but did not disclose that the purchase was made for the
Trust or on its behalf but contrarily claimed as follows:
"The allegation that the Auction Purchaser is
a Public Trust is once again an irresponsible
statement without verifying the facts. The Auction
Purchaser is an individual by name Sri.R.Raghu
who is an agriculturist and the Sale Certificate is
also issued in the name of the individual
Sri.R.Raghu".
29. The executing Court rejected the application
filed by the respondent No.1 in terms of the order dated
16.01.2006 and inter alia held that the auction sale was
not in favour of any Trust but was in favour of the
petitioner, who was an individual and an agriculturist. It
held that the sale certificate was also issued in favour of
the petitioner. It held that any irregularity in attachment
was not a ground for setting aside the sale. This was
challenged before this Court in MFA No.7981/2006. This
Court, with all humility and utmost respect to my learned
predecessors, instead of answering the contention raised,
held that any violation of Sections 79A, 80 of the Act,
1961, would be examined by the authorities concerned
under the Act, 1961 and the Civil Court has no jurisdiction
to deal with it.
30. It is rather unfortunate that the executing
Court at that stage itself, must have applied its mind to
the question whether the judicial process was misused to
overcome a prohibition in law that a Trust cannot own or
possess agricultural land. The executing Court as well as
this Court were oblivious of the fact that the respondent
No.1 was not requesting them to initiate any action against
purchase of the property by a Trust but on the contrary
was attempting to contend that the petitioner had
compelled the Court to violate a prohibition contained in
law. If the purchaser at the auction had disclosed that he
was representing a public Charitable Trust, the executing
Court obviously would not have finalized the auction sale
but on the contrary would have taken further steps to
issue a fresh sale proclamation as there was only one
buyer, namely the petitioner who was a front man of the
Trust. Therefore, the question is whether the conduct of
the petitioner in lending his name to the Trust to purchase
the property and thereby avoid the consequences of
Section 80 of Act, 1961 amounted to fraud. Unfortunately,
with due respect to my learned predecessors, none of the
Courts have gone into this question as at all times, the
Courts were under the impression that the purchaser was
not the Trust but it was the petitioner in his individual
capacity.
31. The petitioner perhaps apprehending that his
subtle claim in the application under Order XXI Rule 94 of
CPC in the Execution Petition that "the Ashram was the
intending purchaser of the land", could result in serious
consequences backtracked from his statement, when he
filed an application in W.P.No.1723/2006 and MFA
No.7981/2006 to come on record, where he stated as
follows:-
"The Three Annexures produced by me
categorically manifest that, I am the Auction
Purchaser, the Sale Certificate having been issued
in my favour and I.A.No.VII filed by me is allowed
and I have taken possession of the property. The
Ved Vignan Maha Vidya Peeth, the second
respondent in the above writ petition is nothing to
do with the property as I have purchased in my
individual name and I am only the Trustee of the
said organization".
32. However, the petitioner acknowledged the fact
that the Trust was the purchaser and not him, when he
filed W.P.No.47527/2014 to challenge a survey notice
dated 01.10.2014, where he claimed,
"Ved Vignan Maha Vidya Peeth", a Public Charitable
Trust founded by His Holiness Sri. Sri. Ravishankar Guruji
had purchased the agricultural land bearing Sy.No.67
situate at Agara Village, Kengeri Hobli, Bengaluru South
Taluk in a court auction held on 19.04.2003."
33. It was in the backdrop of this categorical
assertion in W.P.No.47527/2014, that a petition
(Misc.No.157/2014) was filed by the respondent No.1
contending that (i) the auction purchaser was not the
petitioner but it was the Trust and therefore, they had
played fraud on the Court (ii) that he found from the
records of the executing Court that the auctioned
property was not even identified in view of the report of
the bailiff that the property was not identifiable.
34. In reply to this, the petitioner herein
contended as follows:
"The respondent No.2 has in all the
proceedings before the courts maintained the
stand that he has purchased the said property in
his individual name and in his capacity as a
trustee of Ved Vignan Maha Vidya Peeth. The sale
certificate issued by this Hon'ble Court
categorically shows that the Schedule A property
stands in the name of the respondent No.2 as a
trustee of Ved Vignan Maha Vidya Peeth."
35. The District Court held that the petitioner had
indeed played fraud on the Court and also held that the
auctioned property was not identified and consequently set
aside the auction, confirmation of sale and the sale
certificate.
36. Even in the present Revision petition, it is
averred as,
"In the said auction, the petitioner purchased
the above property as Trustee of Ved Vignan Maha
Vidya Peeth. The Petitioner, as a trustee of the
Trust filed an application in the said proceedings for
issuance of a sale certificate confirming the sale
under Order XXI Rule 92 of CPC"
37. It is therefore writ large on the face of the
record that the Trust, in order to purchase the land
propped up the petitioner to be a purchaser, which is
obviously to avoid the prohibition contained in Section 80
of the Act, 1961, which reads as follows:
"80. Transfers to non-agriculturists barred.-- 1(a)
No sale (including sales in execution of a decree of a civil
court or for recovery of arrears of land revenue or for sums
recoverable as arrears of land revenue), gift or exchange or
lease of any land or interest therein, or
(b) no mortgage of any land or interest
therein, in which the possession of the
mortgaged property is delivered to the
mortgagee,
shall be lawful in favour of a person,--
(i) who is not an agriculturist, or
(ii) who being an agriculturist holds as
owner or tenant or partly as owner and
partly as tenant land which exceeds the
limits specified in section 63 or 64; or
(iii) who is not an agricultural labourer; or
(iv) who is disentitled under Section 79-A
or section 79-B to acquire or hold any land:
Provided that the Deputy Commissioner
having jurisdiction over the area or any officer not
below the rank of an the Deputy Commissioner
authorised by the State Government in this behalf
in respect of any area may grant permission for
such sale, gift, or exchange, to enable a person
other than a person disentitled to acquire or hold
land under Section 79-A or Section 79-B who bona
fide intend taking up agriculture to acquire land on
such conditions as may be prescribed in addition to
the following conditions, namely:--
(i) that the transferee takes up
agriculture within one year from the date of
acquisition of land, and
(ii) that if the transferee gives up
agriculture within five years, the land shall
vest in the State Government subject to
payment to him of an amount equal to eight
times the net annual income of the land or
where the land has been purchased, the
price paid for the land, if such price is less
than eight times the net annual income of
the land.
(2) Nothing in sub-section (1) shall apply to
lands granted under section 77."
38. Therefore, the Trust played fraud on the Court
by setting up its trustee, who until the sale was declared,
claimed that he was the purchaser but later he claimed
that the Trust was the purchaser. The contention of the
learned Senior counsel that a Trust has no legal existence
and is represented by its trustees and therefore, it could
purchase the land in the name of its trustees is thoroughly
misplaced, as a Trust could neither purchase agricultural
properties in its name nor in the name of its trustees in
view of the prohibition in law. In the present case, the
admission in the pleadings on record, as extracted above,
categorically indicate that the Trust had purchased the
property from its funds but not in its name but in the name
of the petitioner. Therefore, if the property was purchased
not by the petitioner but was purchased by the Trust itself,
the petitioner did play fraud upon the Court and the Court
was unknowingly made a party to an illegality and to a
benami transaction. A Court cannot be a party to any
illegal act, howsoever miniscule it is and every act of every
party in misleading the Court to commit such illegal act
has to be viewed and dealt with seriously. Though, it was
pointed out that Section 80 of the Act, 1961 is deleted with
effect from 01.03.1974, and therefore the question is now
purely academic, the learned counsel for the respondent
No.1, rightly contended the date on which the fraud was
committed was relevant and not the aftermath events.
39. The consequence of such fraudulent act
depends upon the magnitude of the fraud, the prejudice
caused to the affected person and the mitigating
circumstances if any. In assessing the magnitude of fraud,
this Court cannot totally ignore the fact that the auctioned
property lay adjacent to the Ashram of the Trust, as
claimed in W.P.No.47527/2014 and the desperation to
cling on to this property is palpable. A peek into
proceedings in the execution petition throws up lot of
procedural irregularities, the narration of which is avoided,
in view of the earlier finding of the executing court, this
Court and the Hon'ble Supreme Court upholding the
auction sale. Though, there is nothing to show that the
petitioner or the Trust had any role in the irregularities,
yet since there are no details in the execution petition
indicating the buyers at the spot, their bid etc and the
petitioner was the only bidder in the Court sale, all give an
impression that the Trust wanted to annex the property
into its fold without facing any competition from any
bidders and the Executing Court was unwittingly made a
party to such fraud. In so far as the prejudice caused to
the respondent No.1, it is relevant to note that except the
Trust, there was no one else who had participated in the
auction and therefore, if the executing Court knew about
the fraud played, it would have re-initiated the auction
process. As the executing Court itself had noticed, the
auctioned property lay very close to Bengaluru City and
presumably in the vicinity of an internationally reputed
meditation center known as "Art of Living" established by
His Holiness Sri Sri Ravishankar. Therefore, the possibility
of the respondent No.1 garnering a better price, than a
sum of Rs.3,36,363-00 per acre in the auction sale at
hand, cannot be ruled out. The entire execution file does
not disclose who was the sale officer, who were the bidders
at the spot, what was their bid, etc., It only indicates that
the petitioner was the highest bidder at the spot at a sum
of Rs.15,05,000-00 for 5 ½ acres of land. In the auction
before the Court, the petitioner was the only bidder and
the Court strangely negotiated the price with the petitioner
and settled the price at a sum of Rs.18,50,000-00 for 5 ½
acres of land.
40. In so far as the mitigating circumstances are
concerned, this Court cannot ignore the conduct of the
respondent No.1, who did not choose to pay up a farthing
to KSFC under the order for recovery in Misc.No.52/1996.
He neither availed the benefit of Order XXI Rule 83 of CPC
nor did he deposit the auction price along with 5% penalty
to the auction purchaser as provided under Order XXI Rule
89 of CPC. On the contrary, he waited till the auction was
confirmed and a sale certificate was issued and belatedly
filed an application to set aside the sale. As a matter of
fact, a statement was made by the learned counsel for
respondent No.1 which was recorded by a Division Bench
of this Court in W.A.Nos.1025/2007 and 3763/2011 where
he stated,
"The learned counsel appearing for the
appellant (respondent No.1 herein) submits that in
so far as Sy.No.67 measuring 5 acres 20 guntas is
concerned, which is the subject matter of Court
auction in favour of petitioner is concerned, they
have no claim whatsoever. Their claim is in respect
of other survey numbers."
41. The other circumstance is that Section 80 of
the Act, 1961 was deleted with effect from 01-03-1974 by
Karnataka Land Reforms (Amendment) Act, 2020.
Therefore, even if it is considered that the petitioner had
played fraud, which must ordinarily result in setting aside
the auction sale and re-auctioning the property but having
regard to the fact that valuable right has accrued to the
Trust, equity could be worked out by saving the auction
sale and the sale certificate and at the same time suitably
compensating the respondent no.1 by directing the
petitioner to pay a sum of Rs.25,00,000-00 (Rupees
Twenty Five lakh only) per acre in view of the steep
increase in the present market value of the auctioned
property, which in the opinion of this Court is not less
than Rs.1,00,00,000-00 to Rs.1,50,00,000-00 per acre as
a Google search indicates the price of a plot measuring 30'
x 40' at Rs.2500-3000 per square feet.
42. The contention of the learned Senior counsel
for the petitioner that this issue was considered by the
executing Court by its order dated 16.01.2006 and this
Court in MFA No.7981/2006, is evidently false as none of
the Courts ever recorded a finding that the Trust was the
purchaser but had always held that the petitioner was the
purchaser. Therefore, the reliance placed on the
judgments by the learned Senior counsel for the petitioner
about the applicability of the principles of res-judicata and
issue estoppel are inapplicable to the facts of this case. On
the contrary, the judgments relied upon by the respondent
No.1 that fraud unravels every act and the Courts are
entitled to undo such fraud even in collateral proceedings
are squarely applicable.
43. The other contention urged by the learned
Senior counsel for the petitioner that the respondent No.1
having once invoked Section 47 of CPC when he filed the
application for setting aside the sale cannot again file
another petition under Section 47 of CPC is liable to be
rejected since the application filed for setting aside sale is
relatable to Order XXI Rule 90 of CPC and mere
mentioning Section 47 along with the application does not
mean that the respondent No.1 had invoked the power of
the Court under Section 47 of CPC. The present
Miscellaneous Petition is filed under Section 47 of CPC on
the ground that the petitioner had played fraud and
therefore, the respondent No.1 was entitled to file a
petition under Section 47 of CPC.
44. As regards the contention that the petition filed
by the respondent No.1 before the District Court was
belated is concerned, as rightly claimed by the respondent
No.1, the cause of action arose when the petitioner for the
first time categorically claimed in W.P.No.47527/2014 that
the Trust was the purchaser of the auctioned property.
The instant petition being filed in the year 2014 cannot be
held to be belated in view of Article 137 of the Limitation
Act, 1963 which prescribes that when no time limit is
prescribed, three years is the time within which an action
could be brought. Therefore, this contention of the learned
Senior Counsel is liable to be rejected.
45. In so far as the second question is concerned,
if the Trust and not the petitioner was a purchaser then, all
proceedings initiated by the petitioner namely, W.P.
No.2173/2006, W.P.No.47527/2014, W.P.No.52691/2014
connected with W.P.No.54468/2014 and the suit filed by
him in O.S.No.1414/2006 would all have to be construed
as not maintainable and the orders passed therein would
be unenforceable as the Trust was not a party to those
proceedings and the petitioner alone could not have
represented the Trust in view of the law laid down by the
Hon'ble Apex Court in L. Janakirama Iyer and others
vs. P.M. Nilakanta Iyer and others [1962 AIR 633].
Therefore, any finding recorded in the aforesaid writ
petitions would be unenforceable.
46. In so far as the third question is concerned,
the executing Court did examine this question and relying
on the judgment of a Co-ordinate Bench of this Court in
K.Harnatharao vs. Smt. Parvathamma and others
[1999 1 Kar.LJ 288] held that if the Court or the office is
closed on the last day of the prescribed period and if it is
done on the reopening day, by virtue of Section 10 of the
General Clauses Act, it would still be valid. This Court too
in MFA No.7981/2006 relied upon the judgment in
K.Harnatharao, supra and held that the deposit of 75%
of the auction price in the present case is valid. Strictly
speaking, the office of the Court is not closed and under
the Bangalore City Civil Courts Act, the Courts are closed
only for the purpose of Section 11 of the Limitation Act.
The petitioner was required to deposit the balance sale
price which did not require any intervention by the court
and the petitioner must have done so within 15 days.
Though the Court reopened after vacation on 26.05.2003,
the deposit was not made on 26th but it was made on 27th
and the Court permitted to do so unmindful of the position
of law that the Court has no discretion to extend the time
for deposit of the balance sale price and the discretion is
only limited to the question whether the price already
deposited was to be forfeited or not. In this regard, it is
apposite to refer to the judgments of the Hon'ble Apex
Court in Manilal Mohanlal Shah, supra and Sardara
Singh (dead) By Lrs, supra where it was held that if the
amount is not deposited within 15 days, the sale is invalid
and void. However, since the respondent No.1 had earlier
raised this ground but failed in his attempt and as this
Court has now worked out equities, this Court cannot now
hold that the auction sale was rendered invalid for non
deposit of 75% of the sale price within 15 days from the
date of declaration of sale.
47. While answering the fourth question, it is a
matter of ordinary common sense that in any conveyance
of any immovable property, there should be certainty of
the person selling, the person buying, about the property
sold and the consideration. If any one of these is lacking or
uncertain, the same is susceptible to be challenged on
various grounds. When it comes to an auction sale by a
court, the Judgment Debtor is always informed of the
proceedings leading to the auction sale of his property and
is given enormous opportunity to raise the decree amount
through private treaty and liquidate the liability. Even after
the auction sale, he is granted an opportunity to pay up
the purchase price along with 5% to the auction purchaser
and the balance decree amount to the Decree Holder.
When all these are not availed, a final opportunity is
granted to the Judgment Debtor to seek setting aside the
sale on the ground of a material irregularity or fraud in
publishing or conducting the sale, which caused substantial
injury to him. It is only after, such an application is
rejected that the sale becomes absolute. Thus once a sale
certificate is issued, all contentions of the Judgment debtor
is liquidated and a seal of certainty is attached to it.
48. In so far as the present case is concerned,
there are no records in Misc.No.52/1996 to indicate that
when KSFC initiated proceedings for recovery, it had the
details and boundaries of the property of the respondent
No.1. It was only when an execution petition was filed that
KSFC gave the boundaries of the property to be proceeded
against for recovery of the money decreed. There is
nothing to indicate the basis of the boundaries mentioned
in the execution petition. In the execution proceedings, an
application was filed by KSFC under Order XXI Rule 54 to
restrain the respondent No.1 from encumbering the
property and to attach it. The executing Court in terms of
the order dated 10.04.2000 allowed the application and
directed attachment of the property. In so far as the
subject property is concerned, when the Court bailiff and
an official of KSFC visited the land, they could not identify
the property and hence the attachment warrant was
returned by the bailiff with the following endorsement:-
"Fixed on 29.5.2000
Sd/- 26.5.
(B.T.Sathish)
Dy. Manager
KSFC, HO.
F DqÀðgï£À°è PÀAqÀ ±ÉqÀÆå¯ï ¸ÀévÀÛ£ÀÄß mÁªÀiï mÁªÀiï ªÀÄÆ®PÀ d¦Û
ªÀiÁqÀ®Ä ªÁ¢AiÀiÁzÀ £Á£ÀÄ ªÀÄvÀÄÛ ¥ÀAZÁAiÀÄvÀgÀÄ, PÉÆÃmïð D«ÄãÀgÀ
¸ÀªÉÄÃvÀ F ±ÉqÀÆå¯ï£ÀÄß CdªÀiÁ¬Ä¹ £ÉÆÃqÀ¯ÁV F ±ÉqÀÆå¯ï£À°è
vÉÆÃj¹gÀĪÀAvÉ MlÄÖ 6 JPÀgÉ EzÀÄÝ 5 JPÀgÉ 20 UÀÄAmÉ mÁªÀiï mÁªÀiï
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¸ÁzsÀåªÁUÀzÉ EgÀĪÀÅzÀjAzÀ ¸ÀªÉÃðAiÀÄgï ªÀÄÆ®PÀ C¼ÀvÉ ªÀiÁr¹
£ÀPÉëAiÉÆA¢UÉ ªÀÄvÀÄÛ j¥ÉÆÃmïð£ÉÆA¢UÉ d¦Û ªÀiÁr¸À®Ä DzÉò¸À¨ÉÃPÁV
¥ÁæxÀð£É.
Sd/- 29.5.2000
(B.T.Sathish)
Dy. Manager, R-II,
KSFC, HO,
Bangalore-52
1. ¸À»/-
PÉ.J¸ï.J¥sï.¹.
¨ÉAUÀ¼ÀÆgÀÄ-52
2. Sd/- 29.5.
Krishnappa
S/o Balanappa P.P.
Saladoddi,
Tatagoni Post,
Bangalore.
3. Sd/-
Ramesh Nayak V
S/o Venkatanayak,
Saladoddi (Vi)
Tatgoni (PO)
Uttarahalli (HO)
B'lore (S.Tl)-62
ªÀgÀ¢: ºÀÄPÀÄÌA ¥ÀæPÁgÀ F ¥ÉÆæèÉÃlj CzÉà ¤£ÀUÉ ¢£ÁAR 29.5.2000
gÀAzÀÄ EzÉà ªÁ¢AiÀĪÀgÉÆA¢UÉ HjAiÀĪÀgÀÄ vÉÆÃj¹zÀ ¹ÜgÀ µÉqÀÆ宣ÀÄß
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µÉqÀÆå¯ïUÀÆ vÁ¼ÉAiÀiÁUÀzÉ EzÀÄÝzÀjAzÀ ªÉÄîÌAqÀ DHR gÀªÀjUÀÆ F
d«ÄãÀ£ÀÄß mÁA mÁA ªÀÄÆ®PÀ d¦Û ªÀiÁqÀ®Ä ¸ÀgïªÉÃAiÀÄgÀ£ÀÄß
C¥ÁAiÀiïAmï ªÀiÁr £ÀPÁ±ÉAiÉÆA¢UÉ C¼ÀvÉ ªÀiÁr j¥ÉÆÃmïð ¤ÃqÀ®Ä
ªÁ¢AiÀĪÀgÀ EzÀgÀ ªÉÄîÌAqÀ µÀgÀzÀÝAvÉ ªÁ¥À¸ï ªÀiÁrgÀÄvÉÛãÉ.
Sd/-
(Sarvottam)
Bailiff
30.5.2000
ªÁ¢AiÀĪÀgÀ µÀgÀzÀAvÉ ¸ÀgïªÉÃAiÀÄgï C¼ÀvÉAiÉÆA¢UÉ £ÀPÉë ¨ÉÃPÁVzÉ JAzÀÄ
µÀgÀ ªÀiÁrzÀÝjAzÀ ªÁ¥À¸ÀÄì.
R
As per shara of Bailiff P.O. unexecuted, for want of
identity of property which was not possible by DHR.
Sd/- 30.5.2000"
49. On 01.06.2000, the Registry of the executing
Court endorsed that the prohibitory order in respect of the
subject property was unexecuted for want of sketch. The
KSFC (DHR) therefore filed an application on 01.07.2000
under Section 32(8) of the State Financial Corporation Act,
1951 to appoint "Cadastral Surveyor" as a Commissioner
to survey and demarcate the subject property. In the
affidavit accompanying the application, it was stated as
follows:
"The bailiff of the Court could not attach the
property for want of proper
identification/boundaries being an agricultural
holding carved out of larger holdings. Further the
deponent has also been informed that a part of the
land has been acquired by the BWSSB. As such
survey of land by a surveyor of the Survey and
land department is necessary with the village map
and other documents available in the said
department. "
50. The executing Court though posted the case to
hear this application, did nothing from 15.07.2000 but
adjourned the case on 37 dates. On 22.08.2002, the
executing Court instead of hearing the application for
conducting survey and fixing the boundaries, passed an
order rejecting the objections filed by Judgment Debtor to
the execution petition and directed the Decree Holder to
take steps for sale of the subject property. Therefore, the
application filed by Decree Holder for appointment of
"Cadastral Surveyor" was never considered. However, the
proceedings continued in respect of an unidentified
property till it was sold at the spot and in the Court. A
certificate of boundaries issued by the Village Accountant
which is found in Execution Petition No.33/2000 discloses
that Sy.Nos.67 and 71/2A lay within the following
boundaries:-
East by :B.K. N. Anusuya singh land Rajamma,
W/o Narayandas land
West by : Government BWSSB road
North by: land of Miss. Asha
South by: land of Miss. Bhanumathi.
51. The above boundaries were the same as
mentioned in the Execution Petition. Therefore, it is
evident that what lay within the boundaries mentioned in
the Execution Petition was not just 5-20 acres that was
brought for sale but was a larger extent including another
survey number. The learned Senior counsel for the
petitioner deliberately refrained from informing the Court
whether the three bits of land in Sy.No.67 sold at the
auction, lay adjacent to each other and whether the extent
of land lying within the boundaries mentioned in the sale
certificate was 5-20 acres or more.
52. It appears that in a desperate bid to save his
other properties, the respondent No.1 gifted the land
bearing Sy.Nos.70, 71/2, 179 to his wife Smt.Arathi
Krishna, in terms of a gift deed dated 28.01.2006. The
petitioner challenged this alienation in O.S No.374/2006,
which is presently numbered as O.S.No.1414/2006 and
pending adjudication before the II Additional Senior Civil
Judge, Bengaluru Rural District. What followed this was an
avalanche of proceedings before the Department of Survey
to initially fix the boundaries of Sy.No.67 which was shot
down by the petitioner by challenging it before this Court
in W.P.No.2173/2006. This was challenged by the
respondent No.1 in W.A.Nos.1025/2007 and 3063/2011,
which were dismissed in terms of the order dated
02.11.2012. Though, this Court held in W.P.No.2173/2006,
"If the wife of the 5th respondent
(respondent No.1 herein) becomes the owner of
Sy.No.70, 71/2 and 179, the authorities may
survey only those three items of the land."
and an attempt to survey and fix the boundaries of
Sy.No.71/2 and 179 was made, which met with initial
success, in as much as the Tahsildar after receipt of the
survey report directed the petitioner to hand over
possession of 4 acres 37 guntas including kharab to the
respondent No.1. This too was shot down by the petitioner
by challenging it before this Court in W.P.No.52691/2014
and W.P.No.54468/2014. This Court held that the dispute
was not regarding the boundaries but related to the title of
the petitioner to Sy.No.67 and thus directed the
respondent No.1 and his wife to approach the Civil Court.
53. Therefore, it is evident that the petitioner and
the respondent No.1 are at a tug of war, in as much as
the respondent No.1 claims that there are other survey
numbers within the boundaries mentioned in the sale
certificate but the petitioner is non committal but claims
that he owns the entire extent lying within the boundaries
mentioned in the sale certificate. A statement made by the
respondent No.1 in W.A.Nos.1025/2007 and 3063/2011
that the respondent No.1 has no claim whatsoever in
respect of Sy.No.67 measuring 5-20 acres and that his
claim is in respect of other survey numbers, indicates in
sure terms that there is a larger extent of land lying within
the boundaries mentioned in the sale certificate. This
imbroglio could have been certainly avoided, if the
executing Court had acted with alacrity when the bailiff
and the Decree Holder reported that the property to be
attached was not identifiable. The executing Court also
committed a blunder in not considering an application filed
by the Decree Holder for survey and fixing the boundaries,
which would have put to rest the quagmire about the sale
of Sy.No.67.
54. The contention of the learned Senior counsel
that this was also one of the grounds urged in the
application filed for setting aside the auction sale and
therefore should not be re-visited now needs to be
considered. In the application filed by the respondent No.1
for setting aside the sale, no such ground was urged and
no finding was recorded. Similarly, this Court too in MFA
No.7981/2007 did not record any finding. The further
contention of the learned Senior counsel that the said issue
was put to rest in W.P.No.52691/2014 and
W.P.No.54468/2014 is liable to be rejected out rightly, on
two grounds (i) the records of the executing Court was
never perused by this Court (ii) the orders passed in
W.P.No.52691/2014 and W.P.No.54468/2014 were
unenforceable as they were filed not by "Ved Vignan Maha
Vidya Peeth", who purportedly was the purchaser and not
the petitioner. Therefore, it is evident that this ground
urged by the petitioner was not seriously considered by
this Court in earlier proceedings particularly in the light of
the lapses by the executing Court. If only, this was done
by the executing Court, the long drawn litigation and the
innumerable proceedings could have been avoided.
55. In view of the findings recorded on question
No.4, this Court is bound to undo a mistake committed by
it so that the parties are not put to peril. Courts are bound
by the principle of ex debito justitiae. The Hon'ble Apex
Court in A.R.Antulay vs. R.S. Nayak and another
[1988 AIR 1531] held,
"No man should suffer because of the
mistake of the court. No man should suffer a wrong
by technical procedure or irregularities. Rules or
procedures are hand-maids of justice and not the
mistress of the justice. If a man has been wronged
so long as the wrong lies within the human
machinery of administration of justice, that wrong
must be remedied".
56. There are abundant precedents rendered by
Courts in India in support of the view that injustice caused
due to mistake of Courts should be corrected by applying
the principle actus curiae neminem gravabit - an act of the
Court should prejudice no one. Similarly, the principle of
certainty of Court orders cannot be stretched to an extent
of causing injustice to a party to the proceedings and the
court is not devoid of the power to do justice to the
parties.
57. In the present case, if the Court had sold a
property in execution of a decree, it was bound to identify
it and not doing so has resulted in exposing respondent
No.1 to risk of losing all the other un-auctioned properties
allegedly lying within the boundaries mentioned in the sale
certificate.
58. The conduct of the learned Senior counsel for
the petitioner in dodging the question of the Court,
presents an acute desperation on the part of the petitioner
to cling on to a property, which it purportedly did not own.
This is understandable since the auctioned land in
Sy.No.67 lay adjacent to an Ashram established by His
Holiness Sri Sri Ravishankar, which is evident from an
application filed by "Ved Vignan Maha Vidya Peeth" under
Order XXI Rule 94 of CPC in the execution petition for a
sale certificate confirming the sale of Sy.No.67, where it
was stated as follows:-
"That the petition schedule properties are
the adjacent landed properties of the Ashram,
which is proposing to enter herein as a intending
purchaser of the schedule properties put up for
sale".
It was further claimed that,
"The subject property is suitable for
establishment of a college and an orphanage".
59. If the three bits of Sy.No.67 auctioned are
lying at different places in Sy.No.67 or if within the
boundaries mentioned in the sale certificate, there are
more than one survey number, the Ashram may not be in
a position to utilize it. Therefore, the desperation of the
petitioner to shoot down every attempt at a survey is
understandable.
60. Therefore, it is appropriate that the property
sold to the petitioner bearing Sy.No.67 of Agara village,
Kengeri Hobli, Bengaluru South Taluk, measuring 5½ acres
is identified through a revenue survey in accordance with
law.
61. In view of the above, the following order is
passed.
ORDER
The Petition is allowed in part. The
impugned order dated 28.09.2015 passed by
the I Additional District Judge, Bengaluru Rural
District, Bengaluru in Misc.No.157/2014 in so
far as it relates to setting aside the auction
sale dated 19.04.2003 and the consequent
confirmation of sale and the sale certificate
dated 09.09.2005 in respect of Sy.No.67 of
Agara village, Kengeri Hobli, Bengaluru South
Taluk is set aside. However, the Petitioner
shall pay a further sum of Rs.25,00,000-00
(Rupees Twenty Five Lakh only) per acre to the
respondent No.1 as additional sale price within
three months from the date of receipt of a
copy of this Order. The District Court is
directed to conduct a survey of the auctioned
property measuring 5 acres 20 guntas in
Sy.No.67 of Agara village, Kengeri Hobli,
Bengaluru South Taluk and fix its boundaries
and thereupon take steps to rectify the
boundaries mentioned in the sale certificate
dated 09.09.2005, if necessary. Until then, the
parties shall maintain status quo.
Sd/-
JUDGE
PMR
