Karnataka High Court
H Narasimha Naik vs Shekar Poojary on 11 November, 2024
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NC: 2024:KHC:45533
WP No. 22176 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 22176 OF 2022 (GM-CPC)
BETWEEN:
H. NARASIMHA NAIK
S/O. NARAYANA NAIK,
53 YEARS,
KALAVINAHBAGILU,
HAKLADI VILLAGE AND POST,
KUNDAPURA TALUK,
UDUPI DISTRICT-576201
...PETITIONER
(BY SMT. NEERAJA KARANTH, ADVOCATE FOR
SRI. K. SHRIHARI, ADVOCATE)
AND:
SHEKAR POOJARY
S/O. LATE NARAYANA POOJARY,
AGRICULTURIST,
NANDANAVANA, NO.11,
ULLOR VILLAGE,
Digitally signed BYNDOOR TALUK,
by
MARKONAHALLI UDUPI DISTRICT-576201
RAMU PRIYA
...RESPONDENT
Location: HIGH
COURT OF
KARNATAKA (BY SRI. CHANDRANATH ARIGA K., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
14.10.2022 FILED AS ANNEXURE-A IN EXECUTION CASE NUMBER 24
OF 2021 ON THE FILE OF SENIOR CIVIL JUDGE AT KUNDAPURA.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
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NC: 2024:KHC:45533
WP No. 22176 of 2022
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The judgment debtor in E.P.No.24/2021 on the file of
Senior Civil Judge, Kundapura, Udupi is before this Court
challenging an order dated 14.10.2022 issuing a sale warrant
and proclamation directing the Court to bailiff to conduct a spot
sale on 10.11.2022 so that the Court sale could be conducted
on 28.11.2022.
2. The respondent herein filed a suit for specific
performance of an agreement of sale. The Trial Court decreed
the suit in part and directed the petitioner herein to refund a
sum of Rs.19,00,000/- along with costs and interest at 12%
per annum, from the date of agreement till 29.10.2021. The
respondent took out execution of the aforesaid decree for
recovery of a sum of Rs.39,10,603/-. The Trial Court which
had attached the property which was the subject matter of the
agreement, issued a sale proclamation and directed the Court
bailiff to conduct spot sale on 10.11.2022 and report the
proceedings of the spot sale, so that a Court sale could be
conducted on 28.11.2022.
NC: 2024:KHC:45533
3. The petitioner aggrieved by the said order has filed
this petition.
4. Learned counsel for the petitioner contended that
the procedure contemplated under Rules 138 and 139 of the
Karnataka Civil Rules of Practice was not complied with while
issuing the sale proclamation and in conduct of spot sale. She
contends that there was no proper publication of the
advertisement. She also contended that the reserve price of the
property was not fixed in accordance with law and therefore,
the whole proceeding was vitiated.
5. Per contra, the learned counsel for the
respondent/decree holder contended that the decree holder
made a categorical statement, which was recorded by this
Court on 28.11.2023 as follows:
"Learned counsel Sri. K.Shrihari for the
petitioner would submit that the petitioner is ready
to settle the matter by paying the entire amount
due as of today in terms of the decree. Further, the
learned counsel would submit that within two days
he would get instructions as to the mode of
payment."
NC: 2024:KHC:45533
He therefore, contends that the petitioner is playing truant with
the Court. He further contends that the petitioner without filing
a regular first appeal had made a false statement before this
Court that he had filed a regular first appeal. He contends that
regular first appeal was later filed belatedly and an application
for condonation of delay is still pending consideration. He
therefore contends that the conduct of the petitioner, does not
warrant any intervention by this Court.
6. The Court has issued a sale proclamation and a sale
warrant to sell the attached property at the spot. If the
petitioner is aggrieved by the sale confirmation, the petitioner
is bound to follow the course provided under law. So long as
there is an enforceable decree in favour of the respondent, the
same has to be executed without any exception. Therefore, the
petitioner cannot challenge the mere issuance of a sale
proclamation and a sale warrant to sell the attached property in
the spot sale. If the executing Court is not satisfied with the
price which the attached property fetched at the spot sale, it
may proceed in accordance with law.
NC: 2024:KHC:45533
The writ petition is disposed off subject to the above
observation.
Sd/-
(R. NATARAJ)
JUDGE
HJ
