Karnataka High Court
Mrs Uma Suresh vs State Of Karnataka on 22 September, 2023
Bench: Chief Justice, Krishna S Dixit
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WA No. 906 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT APPEAL NO. 906 OF 2023 (GM-RES)
BETWEEN:
1. MRS. UMA SURESH,
W/O SURESH G,
AGED ABOUT 65 YEARS,
R/O #212, 5TH MAIN, 10TH CROSS,
NGEF LAYOUT, NAGARABHAVI,
BANGALORE -560 072.
2. MR SURESH G
S/O LATE GANESH NAIG,
AGED ABOUT 68 YEARS,
R/O #212, 5TH MAIN, 10TH CROSS,
NGEF LAYOUT, NAGARABHAVI,
Digitally signed
by SHARADA BANGALORE -560 072.
VANI B
Location: HIGH ...APPELLANTS
COURT OF
KARNATAKA
(BY SRI. JAYAKUMAR S PATIL., SENIOR ADVOCATE FOR
SMT. SHALINI A. HASINAL.,ADVOCATE)
AND:
1. STATE OF KARNATAKA,
DEPARTMENT OF LAND REVENUE,
VIDHANA SOUDHA,
BANGALORE -560 001.
REPRESENTED BY ITS SECRETARY.
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WA No. 906 of 2023
2. THE DEPUTY COMMISSIONER
BENGALURU DISTRICT,
KANDAYA BHAVAN, K G ROAD,
BENGALURU - 560 009.
3. DEPUTY THASILDAR,
BENGALURU SOUTH TALUK,
KHANDAYA BHAVAN , 4TH FLOOR,
K G ROAD,
BANGALURU -560 009.
4. MANIRAMA MURTHY,
AGED ABOUT MAJOR,
FATHER NAME NOT KNOWN,
R/O # 249, 2ND A MAIN, 2ND BLOCK,
4TH STAGE, VINAYAKA LAYOUT,
NAGARABHAVI, BANGALORE -560 072.
...RESPONDENTS
(BY SMT.NILOUFER AKBAR., ADDL GOVERNMENT ADVOCATE
FOR R1 TO R3;
SRI. MANIRAMA MURTHY., RESPONDENT FOR
R4-IN- PERSON)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961 PRAYING TO ALLOW THE
WRIT APPEAL AND SET ASIDE THE ORDER OF THE LEARNED
SINGLE JUDGE DATED 28.06.2023 IN WP No.18116/2022 (GM-
RES) AND ii) CONSEQUENTLY GRANT THE PRAYERS AS PRAYED
FOR IN THE WRIT PETITION IN FAVOUR OF THE APPELLANTS.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
CHIEF JUSTICE DELIVERED THE FOLLOWING:
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JUDGMENT
This intra court appeal seeks to call in question a
learned Single Judge's order dated 28.06.2023 whereby
appellants W.P.No.18116/2022 has been negatived. In
the said petition they had laid a challenge to the
Endorsement dated 24.08.2022 issued by the Respondent-
Tahsildar whereby the subject property was scheduled to
be auctioned interalia for recovering Rs.2,53,500/-
payable to the 4th Respondent-Munirama Murthy. They
had also sought for a Writ of Mandamus presumably to
Respondent Nos. 2 & 3 to consider their representations
dated 14.07.2021, 10.12.2021, 29.06.2022 & 01.09.2022
to the effect that their case in Execution should be taken
up along with that of the 4th Respondent in respect of the
very same property so that the sale proceeds can be
apportioned on the doctrine of rateable distribution.
However as already said, their petition was not favoured.
2. Learned Sr. Advocate appearing for the petitioners
submits that: The appellants having secured several
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orders passed in their Consumer Complaints had put the
same in Execution; similarly, the 4th Respondent herein
too having secured an order for compensation at the
hands of the same Consumer Forum had put the same in
Execution, seeking auctioning of the very same property;
where there are multiple decreetal debts sought to be
recovered from the same Judgment Debtors by proceeding
against the only property, it has been a settled position of
law that all such Execution Petitions need to be clubbed
together and the sale proceeds of the property should be
apportioned between the Decree Holders on the principle
of rateable distribution. According to the counsel, the
impugned order of the learned Single Judge offends this
principle and therefore needs to be voided.
3. Learned Additional Government Advocate appears
for the official respondents; the 4th Respondent-Party-in-
person present in the court at once and in all fairness
submits that he does not have any objection for the
invocation of rateable distribution principle and that the
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appeal be disposed off on the basis of that arrangement.
At this stage, learned Sr. Advocate appearing for the
appellants draws our attention to the application filed by
his clients wherein the order dated 14.07.2021 made by a
Co-ordinate Bench of this court in W.A.No.466/2021 is
sought to be recalled on the ground that certain
observations which have the effect of excluding the claim
of the appellants from proceeding against the subject
property have been made. Of course, that application is
not posted before us today.
4. We would have straightaway disposed off the writ
appeal on the basis of the fair concession shown by the
4th Respondent- party appearing in person before us.
However, certain intricacies of facts & law involved in the
appeal compel us to treat certain aspects of the matter as
under:
(a) It is not in dispute that the appellants and the
4th Respondent have obtained compensation orders at the
hands of the District Consumer Forum in independent
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proceedings against the same opponent and they have
put the said orders in Execution Proceedings, denoting one
single property belonging to the opponent, namely M/s.
KRK Properties Pvt. Ltd.,. The same property having
been auctioned for an inadequate price, the dispute landed
in W.P.No.7580/2020 filed by the appellants herein and
the said auction came to be set aside by the learned
Single Judge vide order dated 17.12.2020.
(b) The above order of the learned Single Judge
made in W.P.No.7580/2020 was taken up in
W.A.No.466/2021 filed by the 4th Respondent herein and
a Co-ordinate Bench of this court vide order dated
14.07.2021 disposed off the same with the following
observations occurring at para 4 thereof:
"Resultantly, the Deputy Commissioner is
directed to cancel the auction by passing the
appropriate order. The same has not been
done within 15 days from today and thereafter
within three months process of auction shall be
concluded and the amount shall be paid to Sri
Murthy in accordance with law. With the
aforesaid, the writ appeal stands disposed of".
sic
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The purport of the above order is: the subject property
which was auctioned for a song should be re-auctioned and
the claim of 4th Respondent should be satisfied from the
appropriating the sale proceeds thereof. It is precisely
because of these observations, the learned Single Judge
has made the impugned order, which we would not have
otherwise interfered with. That being said, there is force
in the submission of learned Sr. Advocate Mr. Patil that the
Co-ordinate Bench had disposed off 4th Respondent's Writ
Appeal No.466/2021 at the admission stage and thus
obviously sans notice to his clients. That is the reason, the
appellants have moved a separate recalling application in
the said Writ Appeal. We may not repeat that the said
application is not posted before us this day. Be that as it
may.
(c) Learned Sr. Advocate Mr. Patil draws our
attention to the principle enacted in Sec.73 of CPC, 1908.
This section provides for rateable distribution of proceeds
of execution among multiple Decree Holders in VITHAL
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DAS vs. NAND KISHORE, (1901) ILR 23 ALL 106 at 110
succinctly states the legal position as under:
"The object of the section is two-fold. The
first object is to prevent unnecessary
multiplicity of execution proceedings, to
obviate, in a case where there are many
decree-holders, each competent to execute his
decree by attachment and sale of a particular
property, the necessity of each and every one
separately attaching and separately selling that
property. The other object is to secure an
equitable administration of the property by
placing all the decree holders in the position I
have described, upon the same footing, and
making the property rateably divisible among
them, instead of allowing one to exclude all the
others merely because he happened to be the
first who had attached and sold the property."
(d) The 4th Respondent- party- in-person with
appreciable measure of fairness agreed to the proposal of
the appellants that all the Execution Cases be clubbed and
processed against the subject common property and the
auction proceeds thereof be appropriated to the
satisfaction of compensation orders independently secured
by the parties at the hands of the District Consumer
Forum, and this be done on the principle of rateable
distribution as enacted in Sec.73 of the Civil Procedure
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Code, 1908, which provides that where two or more
persons have obtained decrees for the payment of money
against the same Judgment Debtor and they have put
those decrees in enforcement, the auction proceeds of his
property should be shared by all such Decree Holders in
proportion to their decreetal amounts. However, the
question of rateable distribution would crop up only if the
auction proceeds of the subject property is insufficient to
satisfy all the decreetal debts and not otherwise. Much
elaboration is not needed, in view of a fair kind of
settlement arrived at between the appellants on the one
hand and 4th Respondent on the other, who happen to
be the only stakeholders in the matter. Justice of the
case warrants that this appeal be disposed off accordingly,
so that the fruits of the legal battles reach the hands of the
victorious parties.
In the above circumstances, this writ appeal is
disposed off with a direction that the Execution Cases filed
by the appellants be taken up with the Execution Case filed
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by the 4th Respondent herein for disposal together, on the
principle of rateable distribution of properties concerned,
as expeditiously as possible.
In view of the above, the appellants application filed
in 4th Respondent's Writ Appeal No.466/2021, pales into
insignificance and accordingly is disposed off.
Costs made easy.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
cbc
