Shankar Ramachandra Desai vs The Karwar Urban
2023 Latest Caselaw 1074 Kant

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                                   WP No. 104440 of 2016


IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

       DATED THIS THE 19TH DAY OF JANUARY, 2023

                         BEFORE
     THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
     WRIT PETITION NO. 104440 OF 2016 (GM-CPC)
BETWEEN:

1.   SHANKAR RAMACHANDRA DESAI,
     AGE: 75 YEARS, OCC: COOLIE,
     R/O: ASHRAMA ROAD,
     KARWAR, DIST: KARWAR.

2.   RAJENDRA SHANKAR DESAI,
     AGE: 45 YEARS, OCC: COOLIE,
     R/O: ASHRAMA ROAD,
     KARWAR, DIST: KARWAR.

3.   SMT.SHARADHA SHANKAR DESAI,
     DIED,
     PETITIONERS NO.1 AND 2 ARE THE
     LEGAL REPRESENTATIVE OF PETITIONER
     NO.3.
                                           ...PETITIONERS
(BY SRI. S.S.YADRAMI, SENIOR COUNSEL FOR
 SRI. S.V.YAJI, ADVOCATE)

AND:

1.   THE KARWAR URBAN CO-OPERATIVE BANK LTD.,
     REPRESENTED BY ITS JUNIOR ASSISTANT
     SHRI DATTARAM NAGESH BANDEKAR,
     AGE: 60 YEARS, OCC: BANK EMPLOYEE,
     R/O: KARWAR, DIST KARWAR.

2.   SURESH SHIVA NAIK,
     AGE: 45 YEARS, OCC: BUSINESS,
     R/O: NEAR UJVALAXMI HALL NH-17,
     POST: KODIBAG,
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                                      WP No. 104440 of 2016


    TQ: KARWAR,
    DIST: KARWAR.
                                               ...RESPONDENTS
(BY SRI. SHIVA SHIRUR, ADVOCATE FOR R1;
 SRI. SHIVARAJ S.BALLOLI AND
 SRI. RAMESH I.ZIRALI, ADVOCATES FOR R2)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO:
QUASH THE IMPUGNED ORDER DATED 31.03.2016, PASSED BY
THE PRINCIPAL SENIOR CIVIL JUDGE, KARWAR IN
E.P.NO.82/2011 PERMITTING THE RESPONDENT NO.2 TO
DEPOSIT THE REMAINING BID AMOUNT VIDE ANNEXURE-G TO
THE WRIT PETITION AS ILLEGAL AND UNCONSTITUTIONAL.
CONSEQUENTLY THIS HON'BLE COURT MAY KINDLY BE
PLEASED TO QUASH THE ENTIRE SALE PROCEEDINGS IN
EXECUTION CASE NO.82/2011, PENDING BEFORE THE
PRINCIPAL SENIOR CIVIL JUDGE, KARWAR AS THE
PROCEDURE ADOPTED BY THE COURT BELOW IN ATTACHING
THE PROPERTY AND CONDUCTING THE SALE AS ILLEGAL.

     THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:

                           ORDER

This petition is directed against the impugned order dated

31.03.2016 whereby the request of respondent No.2 to deposit

money before the Executing Court in Execution Petition

No.82/2011 was permitted by the trial Court.

2. Heard learned counsel for the petitioners and

learned counsel for the respondents and perused the material

on record.

WP No. 104440 of 2016

3. The material on record discloses that respondent

No.1/Bank instituted the aforesaid suit proceedings in

Execution Petition No.82/2011 against the petitioners/judgment

debtors. Pursuant to respondent No.1/decree holder taking

steps for attachment and sale of the schedule property, the

trial Court conducted a sale on 14.03.2016, subsequent to

which respondent No.2/auction purchaser filed a memo on

31.03.2016 seeking permission to deposit the balance sale

consideration in terms of Order XXI Rule 84 and 85 C.P.C. The

said memo filed by respondent No.2/auction purchaser was

accepted by the Executing Court by passing the impugned

order which is assailed by the petitioners/judgment debtors in

the present petition.

4. A perusal of the impugned order will indicate that

the Executing Court has not adverted to any of the rival

contentions between the petitioners and respondents and all

that the Executing Court has done is to permit respondent No.2

to deposit the balance sale consideration. The question as to

whether respondent No.2 would be entitled to deposit the

balance sale consideration in terms of the Order XXI Rule 84

and 85 C.P.C., whether attachment and sale of the schedule

WP No. 104440 of 2016

property is in accordance with the provisions of Order XXI Rule

84 and 85 C.P.C. etc., are questions to be decided by the

Executing Court after hearing all parties. Under these

circumstances, without expressing any opinion on the

merits/demerits of the rival contentions in the present petition,

I deem it just and appropriate to dispose off this petition

without interfering with the impugned order and by directing

the Executing Court to hear all parties and decide all the

contentions urged by them in accordance with law as

expeditiously as possible.

5. Subject to the aforesaid direction, petition stands

disposed off. All rival contentions between the parties on all

aspects of the matter are kept open and no opinion is

expressed on the same.

SD/-

JUDGE

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