Karnataka High Court
J Deepa Muppaiah Math vs Badrinarayana Ladda S/O. Nand Kishor ... on 15 December, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RFA No. 4123 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 15TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO.4123/2013(PAR/POS)
BETWEEN:
SMT. J. DEEPA MUPPAIAH MATH
W/O. JITENDRA MUPAIAH MATH,
AGED ABOUT: 35 YEARS,
OCC:HOUSEHOLD WORK,
R/O: 2ND CROSS, NEAR LALBAHUDUR
SHASTRI NAGAR, BIJAPUR.
...APPELLANT
(BY SRI RAVI S. BALIKAI, ADVOCATE)
AND:
1. BADRINARAYANA LADDA
S/O. NAND KISHOR LADDA,
AGED ABOUT 39 YEARS,
Digitally
signed by OCC: BUSINESS,
SUJATA
SUBHASH PROPRIETOR OF M/S. SREENIDHI ROAD
PAMMAR LINES NO. 345, KIRAN NIVAS,
WARD NO. XXXV,
OPP: TO AKASHAVANI,
HOSPET - 583 201, DIST: BELLARY.
2. NADEESH S/O. CHANDRASHEKARAIAH,
SINCE DECEASED BY HIS LRS.
2A. Y.M.SAHANA,
W/O. LATE NANDEESH B.C,
AGED ABOUT 28 YEARS,
OCC: HOUSEHOLD WORK,
R/O: 7TH WARD, NEAR APMC MARKET,
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RFA No. 4123 of 2013
BEHIND HO PETROL BANK,
KOTTUR ROAD,
HARAPANAHALLI - 583 131,
DIST: DAVANAGERI
2B. KUMAR GIRISH Y.M. S
/O. LATE NANDEESH B.C.,
AGED ABOUT 8 YEARS,
OCC: STUDENT, SINCE MINOR
REPRESENTED BY HIS MOTHER
AND NATUREAL GUARDIAN, Y.M.SHANA
W/O. LATE NANDEESH B.C.,
R/O: 7HT WARD, NEAR APMC MARKET,
BEHIND HO PETROL BUNK,
KOTTUR ROAD,
HARAPANAHALLI - 583 131,
DIST: DAVANAGERI.
3. SMT. CHANDRIKABAI
W/O. LATE LAXMAN NAIK,
AGE: 65 YEARS,
OCC: AGRICULTURE,
R/O: WARD NO.1, BAPUJINAGAR,
KUDLIGI - 583 135,
DST: BELLARY.
...RESPONDENT
(BY SRI S.A.SANDUR, ADVOCATE FOR
SRI K.L.PATIL, ADVOCATE FOR R1;
APPEAL AGAINST R2 STANDS ABATED;
SRI RAJASHEKHAR BURJI, ADVOCATE FOR R2(A AND B);
R3 - NOTICE TO HELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 104 OF CODE OF
CIVIL PROCEDURE, PRAYING TO SET ASIDE THE MODIFY THE
ORDER PASSED IN E.P.NO.36/2010 VIDE ORDER DATED ON
17.07.2012 THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND JMFC, HOSPET AND ETC.,
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 4123 of 2013
JUDGMENT
Present appeal is filed calling in question the order
passed in Execution Petition No.36/2011 (wrongly typed
as Ex.P No.36/2010) dated 17.07.2012 passed by the
Court of the Prl. Senior Civil Judge and JMFC., Hospete on
IA No.4 filed under Order 21 Rule 58 of CPC.
2. For the purpose of easy reference and convinience,
ranking of the parties is referred as per their rankings
before the Execution Court.
3. The decree holder has filed suit in OS No.30/2007
before the Prl. Senior Civil Judge and JMFC., Hospete for
recovery of money of Rs.35,42,000/- along with interest at
18 % p.a. from the date of suit till its realization against
the judgment debtor. The suit is partly decreed on
18.12.2010 thereby decreeing the suit for a sum of
Rs.22,00,000/- along with interest at the rate of 6% p.a.
from 01.04.2004 till realization. The said judgment and
decree attained finality.
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4. The decree holder being plaintiff has filed execution
petition No.36/2011 for executing the decree passed in the
said suit. Pending execution petition, the appellant herein
has filed an application in IA No.4 on 20.09.2011 under
Order 21 Rule 58 of CPC. But, the Executing court
immediately on the very same day has put the property of
the judgment debtor into sale in auction and the
respondent No.3 herein who is successful auction
purchaser by paying a sum of Rs.42,00,000/- by making
payment of Rs.42,00,000/- has purchased the suit
property. The Executing court has allowed the application
filed by the appellant in part that the appellant's right,
title and interest in the disputed property has been
determined to the extent of 1/3rd share and therefore,
appellant is entitled to get 1/3rd share in the sale
proceedings but not in the landed properties. The land
attached during execution proceedings are more than
eight acres of land in extent and this land was put into
auction by the court and it was purchased by the
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respondent No.3 herein being successful purchaser for just
a sum of Rs.42,00,000/-.
5. When the appellant has filed application under Order
21 Rule 58 of CPC, then, the Executing court ought to
have offered the decree holder to file objection and hear
on the said application, but without doing so has passed
order to put the property into auction sale. Thus,
determined the appellant's share as 1/3rd in the sale
proceedings, but not in the landed properties. Here, when
the application is filed by the appellant, an opportunity of
being heard ought to have been given to both the parties.
But, in a hasty manner, the Executing court proceeded
with the case. The Executing court has observed that the
appellant is residing in her husband's house at Bijapura.
Therefore, she is not in a position to come to Hospete and
cultivate the said land. Therefore, the application filed
appears to be collusive nature to defeat execution of the
decree. Therefore, while disposing of the appeal ordered
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that appellant is entitled for 1/3rd share in the sale
proceeds but not in the landed properties.
6. In the appeal, the auction purchaser has filed
application for impleading herself as respondent and it was
allowed and made her as respondent No.3. Advocate for
respondent No.3 passed away and then court notice issued
to the respondent No.3 is served through process of the
court but respondent No.3 remained absent.
7. As per Order 21 Rule 64 of CPC, the court must
enquire whether sale consideration of the property is
sufficient to satisfy the decree and if so put only that
portion to sale but not exceeding the decreetal amount.
When an application is filed under Order 21 Rule 58 of
CPC, then it is incumbent upon the Executing court to
hold an enquiry whether the property for sale is sufficient
as part of it to satisfy the decreetal amount or whole
property to put into sale. Without conducting this enquiry
as mandated under Order 21 Rule 64 of CPC, that too
when an application is filed under Order 21 Rule 58 of
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CPC, without considering the same, putting entire property
into auction is not correct. Further more, the observation
made by the Execution court that appellant is residing
along with her husband at Bijapura and she is not in a
position to come to Hospete and cultivate the land. This
observation of the Executing court is unwarranted. It is up
to the wisdom of the appellant whether to come to
Hospete personally and cultivate the land or not. The
Executing court could not go into the mind of the appellant
and make decision on behalf of her. Therefore, this
observation of the Executing court is not correct.
Therefore, for the aforesaid reasons, the impugned order
in the appeal is liable to be set aside.
8. In order to protect interest of parties involved in the
appeal, some observations are to be made. The suit is
decreed for Rs.22,00,000/- with interest at 6% p.a. from
01.04.2004 till realization. When the judgment debtor has
failed to honour the decree, then, the properties of the
judgment debtor and appellant were put into sale by way
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of auction and respondent No.3 herein has purchased the
property for total sum of Rs.42,00,000/-. Now, the
appellant wants to protect her right over the lands on the
reason that eight acres of land was sold for just for sum of
Rs.42,00,000/-.
9. The learned counsel for the appellant submitted that
the appellant is ready to reimburse the sale proceeds of
Rs.42,00,000/- to the respondent No.3-auction purchaser
with interest thereon at 6% per annum from the date of
sale till realization. Accordingly, ordered the appellant to
reimburse Rs.42,00,000/- to respondent No.3. The decree
holder has realized his money of Rs.26,04,715/- before
Executing court court, still a sum of Rs.14,57,785/- is
lying before the Executing court. Therefore, the decree
holder is still entitled for balance amount with interest
which can be realized from the amount lying in deposit
before the Executing court. In this way, interest of decree
holder is protected. After complete realization of amount
by the decree holder, whatever remaining balance amount
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would be available, the same shall be reimbursed to the
appellant. In this way, the interest of the decree holder is
protected.
10. The appellant shall pay a sum of Rs.42,00,000/- with
interest at 6% to the auction purchaser from the date of
sale till deposit/realization. The appellant shall get landed
property in her possession subject to conditions, terms as
per law. The sale certificate issued to the respondent No.3
is hereby required to be set aside and set aside.
11. Hence, I proceed to pass the following:
ORDER
i) Regular First appeal is allowed.
ii)The impugned order passed in
Ex.P.No.36/2011 dated 17.07.2012 by Prl.
Senior Civil Judge and JMFC., Hosapete is hereby
set aside.
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iii) All the parties shall comply with the
observations and order as discussed above at
paragraph Nos.8 and 9.
iv) The appellant shall deposit a sum of
Rs.42,00,000/- with 6% interest thereon from
01.04.2011 till deposit to the Executing court
within a period of six weeks from today.
v) The sale certificate issued in favour of
respondent No.3 is hereby set aside.
vi) No orders as to costs.
vii) Draw decree accordingly.
viii) Draw decree accordingly.
SD/-
JUDGE
HMB
CT-ASC
