Karnataka High Court
Sri P.S. Nagarajasetty vs Sri P.V. Narayanappa on 26 June, 2023
Bench: Ravi V Hosmani
-1-
NC: 2023:KHC:22005
WP No. 28249 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
WRIT PETITION NO. 28249 OF 2015 (GM-CPC)
BETWEEN:
1. SRI P.S. NAGARAJASETTY,
S/O P. SEETHARAMA SETTY,
AGED BOUT 65 YEARS,
2. SMT. KALAVATHI,
W/O P. NAGARAJA SETTY,
AGED ABOUT 62 YEARS,
BOTH ARE R/AT KARIASAVESWARA
PROVISION STORES, HOLALKERE ROAD,
CHITRADURGA - 577 501.
...PETITIONERS
[BY SRI. K.N.RAVI KUMAR, ADVOCATE (PH)]
AND:
1. SRI P.V. NARAYANAPPA,
S/O GOVINDAPPA,
AGED ABOUT 75 YEARS,
NEAR SANTHE MAIDANA,
Digitally signed by NEAR BUS STAND, CHITRADURGA,
GEETHAKUMARI R/O SRINIVASA NILAYA,
PARLATTAYA S
OPP:RAVI NURSING HOME,
Location: High Court of
Karnataka HOLALKERE ROAD,
CHITRADURGA - 577 501.
2. SMT. ALIYAMMA THOMAS, DISMISSED V/O
W/O M.D. BABU, DATED 03.03.2022
PROPRIETOR EAGLE RUBBER WORKS,
INDUSTRIAL DEVELOPMENT AREA,
KANJI KODE, PUDUSSERY,
PALLAKAD TALUK,
PALLADKAD DISTRICT,
KERALA STATE - 678 001.
3. SRI JAYACHANDRA,
S/O OBALESHAPPA,
AGEDA BOUT 40 YEARS,
-2-
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WP No. 28249 of 2015
R/AT NITUVALLI, HOSA BADAVANE,
DAVANAGERE - 577 223.
...RESPONDENTS
(BY SRI. JAGADEESH P., ADVOCATE FOR R1 (PH);
SRI. M.G.KATHARAJAPPA, ADVOCATE FOR R2 (PH);
SRI. B.S. MURALI, ADVOCATE FOR R3 (PH)]
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE
RECORDS OF EX.NO.156/2009 AND MISC. NO. 6/2013 FROM THE
FILE OF PRINCIPAL CIVIL JUDGE, SENIOR DIVISION JMFC AND
MACT-III AT CHITRADURGA EXAMINE THE RECORDS, QUASH THE
ORDER PASSED IN MISC. NO. 6/2013 IN EX. NO. 156/2009 ON THE
FILES OF THE PRINCIPAL CIVIL JUDGE [SENIOR DIVISION] CJM AND
MACT III AT CHITRADURGA DATED 6.6.2015 VIDE ANNEXURE-F
THEREBY ALLOWING THE MISC. 6/2013 BY CANCELING THE
AUCTION SALE OF CONFIRMATION OF SALE DEED PASSED IN
EX.NO. 156/2009 AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
B-GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Challenging impugned order dated 06.06.2015
(Annexure-F) passed by Prl. Civil Judge (Sr.Dn.) & CJM and
MACT, Chiradurga, on Misc.no.6/2013 filed in Ex.no.156/2009,
this writ petition is filed.
2. Sri. K.N. Ravikumar, learned counsel for
petitioners submitted that Execution case no.156/2009 was
filed for executing decree passed in O.S.no.35/2001 for
recovery of Rs.3,77,565/-. It was submitted that since property
was situated at Chitradurga, decree was transferred to
jurisdictional Court at Chitradurga, for execution.
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WP No. 28249 of 2015
3. It was submitted that on 07.01.2012 executing
Court ordered for sale of item no.3 of suit property and for sale
warrant on 04.02.2012. It was contended that petitioners had
purchased item no.3 under two sale deeds dated 12.01.2006
and 06.10.2006 from Judgment Debtor (for short 'J.Dr.') prior
to date of decree, which was on 14.08.2007. It was submitted
that sale was ordered and conducted in violation of mandatory
procedure stipulated on Order 21 Rule 66 of CPC. It was
submitted that there was Decree holder (for short 'D.Hr.') had
not filed verified statement with particulars as contemplated in
sub-rule (2) of Rule 66 and therefore, sale was contrary to law
and fraudulent. It was submitted that D.Hr. failed to produce
encumbrance certificate and value of bid was far lower than
market value. Despite same, when petitioner filed Misc. petition
no.6/2013 under Order 21 Rule 90 of CPC read with Section
144 and 145 of CPC for setting aside of auction sale,
confirmation of sale and cancellation of sale deed dated
03.04.2012, trial Court dismissed same under impugned order.
3. It was submitted that reason assigned by
Executing Court was that J.Dr.no.1 had not objected and order
of attachment before judgment was obtained in respect of
some other property and subsequently amended in respect of
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WP No. 28249 of 2015
property purchased by petitioners prior to decree. Hence, there
was material irregularity and if not interfered with would lead to
miscarriage of justice. It was submitted that observation that
petitioners were subsequent purchasers and therefore, had no
right to question sale and after confirmation of sale, petition
was not maintainable was contrary to law and sought for
allowing writ petition.
4. On other hand, Sri. Jagadeesh P., learned
counsel for respondent no.1 (J.Dr.), Sri. M.G.Kantharajappa,
learned counsel for respondent no.2 (D.Hr.) and Sri. B.S.
Murali, learned counsel for respondent no.3 (Auction-
Purchaser), supported impugned order and opposed writ
petition. It was submitted that after sale proclamation, no
objections were received and in due compliance with procedure
provided, there was sale of item no.3 of suit property. It was
submitted that since, there already was confirmation of sale by
issuance of sale certificate, there could be no challenge to it, by
referring to decision of Hon'ble Supreme Court in H.S.
Goutham vs. Rama Murthy & Anr.1. It was further submitted
that, even before decree and prior to alleged purchase of suit
(2021) 5 SCC 241
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property by petitioners, D.Hr. had obtained order for
attachment before judgment. Therefore, petition was not
bonafide and rightfully dismissed.
5. Heard learned counsel and perused writ petition
and records.
6. From above submission, it is seen that petitioners
claiming to be purchasers of suit property prior to decree, filed
Misc. petition no.6/2013 under Sections 144 and 145 read with
Order XXI rule 90 of CPC. Main ground urged therein was that
without following procedure for proclamation and sale, auction
sale of item no.3 of suit properties, which was purchased by
them was sold. Executing Court failed to consider that D.Hr.
had not filed verified statement along with encumbrance etc.,
for proper description and identification of property to be put to
sale and it erred in failing to notice that bid amount was grossly
insufficient. It was also contended that there was collusion
between D.Hr. and J.Dr.no.1.
7. On verification of records, it is seen that by order
dated 07.01.2012, Executing Court ordered for sale of item
no.3 of suit property. Said order was passed after taking note
of Verified statement filed by D.Hr. with full particulars
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WP No. 28249 of 2015
sufficient for identification of suit property. That apart, notice
was issued to J.Dr.no.1 and sale warrant was ordered
executable by 04.02.2012. In pursuance of same, item no.3 of
suit property was put to auction. Bid of respondent no.3 being
highest was accepted by J.Dr.no.1. Therefore, there is no
substance in contention of petitioner that procedure
contemplated in Order XXI rule 66 of CPC was not complied.
8. Further, by order dated 24.01.2013, Executing
Court confirmed sale and ordered issuance of sale certificate.
Thus, sale having become absolute, would not be available for
challenge in Execution proceedings as held in H.S. Gautham's
case (supra).
Thus, recourse to Order XXI rule 90 of CPC instead of
invoking appropriate remedy would be untenable. Hence, there
is no merit in writ petition and accordingly, it is dismissed.
Sd/-
JUDGE
psg*
