Karnataka High Court
Basavanth Shivanagouda Patil vs The State Of Karnataka on 13 June, 2023
Bench: S.Vishwajith Shetty
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WP NO.72947/2012
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO. 72947/2012 (CS-DAS)
BETWEEN:
BASAVANTH SHIVANAGOUDA PATIL,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: YALLATTI, TQ: JAMAKHANDI,
DIST: BAGALKOT.
... PETITIONER
(BY SRI. PRASHANT HOSAMANI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF CO-OPERATION,
BY ITS SECRETARY, M.S. BUILDING,
DR. AMBEDKAR VEEDHI,
BENGALURU-560001.
RAKESH S 2. THE DEPUTY REGISTRAR OF CO-OPERATIVE
SOCIETITES, BAGALKOT, DIST: BAGALKOT.
HARIHAR
Digitally signed by 3. THE ASSISTANT REGISTRAR OF CO-OPERATIVE
RAKESH S HARIHAR
Location: High Court of
SOCIETITES AND THE RECOVERY OFFICER,
Karnataka, Dharwad
Date: 2023.06.14 14:28:07
JAMAKHANDI, DIST: BAGALKOT.
+0530
4. THE SALES OFFICER,
ATTACHED TO THE OFFICE OF THE A.R.C.S.,
JAMAKHANDI, DIST: BAGALKOT.
5. THE SECRETARY,
THE VYAVASAYA SEVA SAHAKARI SANGHA LTD.,
YALLATTI, TQ: JAMAKHANDI, DIST: BAGALKOT.
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WP NO.72947/2012
6. SRI. CHANDRAKANT MALLAPPA NADAGOUDAR,
AGE: MAJOR, OCC: NOT KNOWN.
R/O. YALLATTI, TQ: JAMAKHANDI,
DIST: BAGALKOT.
7. SMT. SAROINI D/O MALLAPPA NADAGOUDA,
AGE: 30 YEARS, OCC: HOUSEHOLD WORK.
R/O. NEAR KAILAS HOTEL, JAMAKHANDI,
TQ: JAMAKHANDI, DIST: BAGALKOT.
8. SHRI. GOPAL S/O SHIVAPPA JOGI,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O. TERDAL, TQ: JAMAKHANDI,
DIST: BAGALKOT.
... RESPONDENTS
(BY SRI. VINAYAK S KULKARNI, AGA FOR R1-R4;
SRI. M C HUKKERI, ADVOCATE FOR R5;
SRI. JAYAKUMAR S PATIL, SR. COUNSEL FOR
SRI. SHIVARAJ P MUDHOL, ADVOCATE FOR R6;
SRI. P N HATTI, ADVOCATE FOR R7;
SRI. S L MATTI, ADVOCATE FOR R8)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT, ORDER
OR DIRECTION QUASHING THE ORDER DATED 26-05-2012
PASSED IN DRBGK/ABN/APPEAL/03.2011-12 BY THE 2ND
RESPONDENT CONFIRMING THE AUCTION DATED 27.04.1998
IN FAVOUR OF THE 6TH RESPONDENT CONDUCTED BY THE
RESPONDENT NO.4, AS PER ANNEXURE-A AND ANNEXURE-E.
THIS PETITION, HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 05.06.2023, THIS DAY, THE COURT MADE
THE FOLLOWING:
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WP NO.72947/2012
ORDER
1. This writ petition under Articles 226 and 227 of
the Constitution of India is filed assailing the order dated
26.05.2012 passed in proceedings bearing
No.DRBGK/ABN/APPEAL/03.2011-12 by the respondent
No.2 confirming the sale confirmation order dated
27.04.1998.
2. Heard the learned counsel for the parties and
also perused the material available on record.
3. Facts leading to filing of this writ petition
narrated briefly are; the petitioner was working as a
secretary of respondent No.5-Society. He was dismissed
from services on 18.04.1991 by the respondent No.5-
Society on the allegation of misappropriation. A dispute
thereafter was raised by the Society before the respondent
No.3 which was allowed and an award was passed for
recovery of Rs.6,52,944/- from the petitioner. The said
order was challenged by the petitioner in Appeal
No.116/1995, which was allowed by the Karnataka
Appellate Tribunal on 22.01.1996 and the matter was
WP NO.72947/2012
remanded to respondent No.3. After remand, respondent
No.3 passed an award dated 13.09.1996 for recovery of a
sum of Rs.4,20,613/- with 18% interest from the
petitioner from the date of award till recovery. Pursuant to
the same, in execution of the award, the landed properties
of the petitioner were brought for sale in an auction that
was held on 25.03.1998 and the said sale was confirmed
on 27.04.1998. Challenging the award dated 13.09.1996,
the petitioner belatedly filed Appeal No.208/1998 before
the Karnataka Appellate Tribunal, which was allowed on
12.04.2000 and the matter was once again remanded to
respondent No.3 for fresh consideration. Challenging the
said order passed in Appeal No.208/1998, respondent
No.6 herein who is the auction purchaser had filed WP
No.18218/2000, which was dismissed as withdrawn with
an observation that the petitioner herein was at liberty to
work out his rights to get back possession of the
properties, which was sold for inadequate consideration.
Though WP No.18218/2000 was disposed of by this Court
on 12.07.2004, challenging the sale confirmation order
dated 27.04.1998, the petitioner belatedly filed an Appeal
WP NO.72947/2012
before respondent No.2 herein in the year 2012, and the
said Appeal was dismissed on the ground of delay and
latches. Assailing the said order passed by respondent
No.2 dated 26.05.2012, the petitioner is before this Court.
4. Learned counsel for the petitioner submits that,
in the recovery proceedings initiated by the Society, he
has paid the entire due amount and by recording the
same, on 17.05.2014, respondent No.3 had closed the
recovery proceedings. He submits that since there is no
award against the petitioner, the Society is not justified in
bringing his properties for sale and therefore, respondent
No.2 ought not have dismissed his Appeal. He submits
that even if it is considered that respondent No.6 is a
bonafide purchaser, his interest cannot be protected
having regard to the fact that there is no award against
the petitioner.
5. In support of his contentions, he has placed
reliance on the judgment of the Hon'ble Supreme Court in
the case of B.S.Sheshagiri Setty and others Vs.State
WP NO.72947/2012
of Karnataka and others reported in (2016) 2 SCC
123.
6. Per contra, learned counsel for respondent No.6
submits that notwithstanding the fact that there is no
award passed against the petitioner, the auction sale held
and the confirmation of the said sale is required to be
protected. He submits that as on the date of sale, there
was an award which was operating against the petitioner.
In support of his contentions, he has placed reliance on
the judgments of the Hon'ble Supreme Court in the case of
Janak Raj Vs.Gurdial Singh and another reported in
(1967) 2 SCR 77 and also in the case of Sardar
Govindrao Mahadik and another Vs.Devi Sahai and
others reported in (1982) 1 SCC 237.
7. Learned counsel for respondent No.5-Society
submits that, the dispute raised by the Society was closed
as settled since the petitioner came forward to pay
balance amount due to the Society and it is under these
circumstances a specific observation was made in the
order passed by respondent No.3 while closing the dispute
WP NO.72947/2012
that the said order passed therein would not effect the
sale made in favour of respondent No.6.
8. The material on record would go to show that
after respondent No.3 had passed an award against the
petitioner on 13.09.1996 for recovery of a sum of
Rs.4,20,613/- with 18% interest from the date of order till
recovery, the properties of the petitioner was brought for
sale, in the auction that was held on 25.03.1998.
Respondent No.6 is the successful bidder in the said
auction and the sale confirmation order was issued on
27.04.1998. As on the said date, the award dated
13.09.1996 passed by respondent No.3 was in force
against the petitioner. The said award was belatedly
challenged by the petitioner in Appeal No.208/1998 which
was allowed by the Karnataka Appellate Tribunal on
12.04.2000 and the matter was remitted to the
respondent No.3 for fresh consideration. In the writ
petition filed by the respondent No.6 challenging the order
dated 12.04.2000 passed by the Karnataka Appellate
Tribunal in Appeal No.208/1998, the petitioner herein was
WP NO.72947/2012
granted liberty to work out his rights to get back
possession of his properties, which was sold in the year
1998. Though such a liberty was reserved by the Court in
WP No.18218/2000 vide order dated 12.07.2004, the
petitioner has not chosen to take any steps to challenge
the order of confirmation of sale dated 27.04.1998.
Belatedly after 14 years, without assigning any
satisfactory reason for condonation of inordinate delay of
14 years, the petitioner had filed Appeal before the
respondent No.2 in the year 2012, challenging the sale
confirmation order dated 27.04.1998. The Statute
provides that such an Appeal should be filed within sixty
days from the date of order. Taking into consideration that
the petitioner had not offered any satisfactory explanation
for condonation of inordinate delay of 14 years in filing the
appeal, the respondent No.2 has dismissed the said
appeal. No fault can be found in the order passed by the
respondent No.2 having regard to the fact that the
petitioner had failed to assign satisfactory reasons for
condonation of inordinate delay of 14 years in filing the
appeal.
WP NO.72947/2012
9. In addition to the same, having regard to the
law laid down by the Hon'ble Supreme Court in the case of
Janal Raj (supra) and in the case of Sardar Govindrao
Mahadik and another (supra), it has to be held that
respondent No.6 is entitled for confirmation of sale
notwithstanding the fact that the recovery proceedings
initiated against the petitioner by the Society was closed
having regard to the settlement between the parties.
10. In the case of Janak Raj (supra) at paragraph
27, the Hon'ble Supreme Court has observed as follows:
"27. For the reasons already given and the decisions
noticed, it must be held that the appellant-auction-
purchaser was entitled to a confirmation of the sale
notwithstanding the fact that after the holding of the
sale the decree had been set aside. The policy of the
legislature seems to be that unless a stranger
auction-purchaser is protected against the
vicissitudes of the fortunes of the suit, sales in
execution would not attract customers and it would
be to the detriment of the interest of the borrower
and the creditor alike if sales were allowed to be
impugned merely because the decree was ultimately
set aside or modified. The Code of Civil Procedure of
1908 makes ample provision for the protection of the
interest of the judgment-debtor who feels that the
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WP NO.72947/2012
decree ought not to have been passed against him.
On the facts of this case, it is difficult to see why the
judgment-debtor did not take resort to the
provisions of Order 21 Rule 89. The decree was for a
small amount and he could have easily deposited the
decretal amount besides 5 per cent of the purchase
money and thus have the sale set aside. For reasons
which are not known to us he did not do so."
11. In the case of Sardar Govindrao Mahadik
and another (supra) at paragraph 60, the Hon'ble
Supreme Court has observed as follows:
"60. Ordinarily, if the auction-purchaser is an
outsider or a stranger and if the execution of the
decree was not stayed of which he may have assured
himself by appropriate enquiry, the court auction
held and sale confirmed and resultant sale certificate
having been issued would protect him even if the
decree in execution of which the auction-sale has
been held is set aside. This proceeds on the footing
that the equity in favour of the stranger should be
protected and the situation is occasionally reached
on account of default on the part of the judgment-
debtor not obtaining stay of the execution of the
decree during the pendency of the appeal."
12. The material on record would go to show that
the award was passed against the petitioner for recovery
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WP NO.72947/2012
of a sum of Rs.4,20,913/- with interest at 18% per annum
from the date of order till recovery. It is pursuant to this
award which was operating against the petitioner, auction
sale of his properties was held on 25.03.1998, in which
the respondent No.6 was the successful bidder and the
sale confirmation was made on 27.04.1998. From perusal
of the order dated 17.05.2014 passed by the respondent
No.3, which is produced along with the memo dated
24.11.2022 by the learned counsel for the petitioner, it is
seen that the petitioner had paid a sum of Rs.4,19,701.94
towards full and final settlement and accepting the same,
the respondent No.5-Society had agreed for closure of
recovery proceedings with a condition that the said
settlement would not effect the sale confirmation order
dated 27.04.1998. The said order dated 17.05.2014 has
not been questioned by the petitioner till date. Therefore it
is not open for the petitioner to now contend before this
Court that, since there is no award for recovery of any
amount, the sale of properties made in favour of
respondent No.6, requires to be set aside.
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WP NO.72947/2012
13. In the case of B.S.Sheshagiri Setty and
others (supra), the sale confirmation was made after the
principal loan amount was repaid by the debtor and it is
under these circumstances, it was held that the rights of
the auction purchaser cannot be permitted as he cannot
be said to be a bonafide purchaser.
14. However in the case on hand, much after the
confirmation of the sale, the amount due under the award
has been repaid by the petitioner. Therefore the judgment
in the case of B.S.Sheshagiri Setty and others (supra),
would not be applicable to the facts and circumstances of
the present case. Under these circumstances, I am of the
considered view that the writ petition does not merit
consideration and the interest of respondent No.6 who is a
bonafide purchaser is required to be protected.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE
KGK*/Ct:Bck
