Karnataka High Court
Shri Praveen S.O. Mahabaleshwar Hegde vs The General Manager (In-Charge) on 17 June, 2025
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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WP No. 103808 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 17TH DAY OF JUNE 2025
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 103808 OF 2025 (GM-CPC)
BETWEEN:
SHRI PRAVEEN S/O. MAHABALESHWAR HEGDE,
AGE: 50 YEARS, OCC: BUSINESS,
R/O. #212, PRAVEEN YALLAPUR ROAD,
VINAYAK COLONY, NEW MARKET YARD POST,
SIRSI, UTTARA KANNDA-581402.
...PETITIONER
(BY SRI. SOURABH HEGDE, ADVOCATE)
AND:
THE GENERAL MANAGER (IN-CHARGE),
THE TOTGARS' CO-OPERATIVE SALE SOCIETY LIMITED,
NEW MARKET YARD, SIRSI, UTTARA KANNADA-581402.
...RESPONDENT
(BY SRI. A.P. HEGDE, ADVOCATE FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
VIJAYALAKSHMI
M KANKUPPI OF THE CONSTITUTION OF INDIA PRAYING TO
Location: HIGH A. ISSUE A WRIT OF IN THE NATURE OF CERTIORARI QUASHING
COURT OF
KARNATAKA THE IMPUGNED ORDER PASSED BY THE LEARNED SENIOR
DHARWAD
BENCH CIVIL JUDGE AND PRL. J.M.F.C., SIRSI IN EXECUTION CASE
NO.32/2024 DATED 05.04.2025 VIDE ANNEXURE-A.
B. ISSUE A WRIT IN THE NATURE OF MANDAMUS DIRECTING
THE EXECUTING COURT TO TAKE-UP THE MATTER
IMMEDIATELY ON BOARD TO ENABLE THE PETITIONER TO
MAKE NECESSARY APPLICATIONS AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
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WP No. 103808 of 2025
HC-KAR
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR)
1. Heard learned counsel for the petitioner and the
learned counsel for the respondent.
2. With the consent of the parties, the matter is
taken up for disposal finally.
3. The petitioner is aggrieved by the order passed
by the learned Senior Civil Judge and Principal JMFC, Sirsi
in Execution Case No.32/2024. Without following due
process of law, a proclamation was issued. Hence, the
petitioner has approached this Court.
4. The petitioner has suffered a decree, and the
respondent has filed for execution. The decree has not
been stayed in Execution Case No. 32/2024. The
petitioner/JDR No.1 has filed statement of objections and
has contested the matter. However, this being the state
of affairs, another order came to be passed for
proclamation without following the procedure
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contemplated under Order XXI Rule 54 (1A), and Rule 66
of the CPC.
5. It is contended by the learned counsel for the
petitioner that, the valuation report has been filed, which
is extremely on the lower side and not authorised by the
proper valuator who assessed the valuation of the
property. The petitioner does not dispute the fact that he
suffered the decree for recovery of money, but all his
properties are worth much more than the valuation
assessed by the valuer and due amount to the respondent.
6. Under these circumstances, it is contended by
the learned counsel for the petitioner that, the Trial Court
ought to have followed the procedure as contemplated
under Order XXI Rule 54 (1A) and Rule 66 of the CPC.
Before proceeding to issue the proclamation, the Court
must hear the parties, obtain a proper valuation from an
approved valuer appointed from both parties, and so also
to consider if any alternative properties are furnished by
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the petitioner for satisfaction of the respondent's claim and
only thereafter decide in accordance with law. Without
following this procedure, the Court has proceeded further
to issue proclamation and has ordered for sale of the
property.
7. Per contra, learned counsel representing the
respondent vehemently contends that, there is no violation
or deviation from the procedure or rules, and that the Trial
Court, acting as the executing court, has followed the
procedure contemplated under the Civil Procedure Code.
The petitioner has appeared before the Executing Court
and filed statement of objections. The property was
valued by an approved valuer, who has given a report,
based on which the procedure is followed for issuance of
proclamation. Therefore, he sustains the order.
8. Having heard the submissions from both
parties, it is apparently clear that, Order XXI Rule 54(1A)
of CPC reads as under:
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54. Attachment of immovable property.
(1) Where the property is immovable, the
attachment shall be made by an order prohibiting
the judgment-debtor from transferring or
charging the property in any way, and all persons
from taking any benefit from such transfer or
charge.
(1A) The order shall also require the judgment-
debtor to attend Court on a specified date to take
notice of the date to be fixed for settling the
terms of the proclamation of sale.
So also, the procedure under Order XXI Rule 66
of CPC reads as under:
66. Proclamation of sales by public auction.
(1) Where any property is ordered to be sold by
public auction in execution of a decree, the Court
shall cause a proclamation of the intended sale to
be made in the language of such Court.
(2) Such proclamation shall be draw up after
notice to the decree-holder and the judgment-
debtor and shall state the time and place of sale,
and specify as fairly and accurately as possible-
(a) the property to be sold or, where a part of the
property would be sufficient to satisfy the decree,
such part;
(b) the revenue assessed upon the estate, where
the property to be sold is an interest in an estate
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or in part of an estate paying revenue to the
Government;
(c) any incumbrance to which the property is
liable;
(d) the amount for the recovery of which the sale
is ordered; and
(e) every other thing which the Court considers
material for a purchaser to know in order to judge
of the nature and value of the property:
Provided that where notice of the date for settling
the terms of the proclamation has been given to
the judgement-debtor by means of an order
under rule 54, it shall not be necessary to give
notice under this rule to the judgment-debtor
unless the Court otherwise directs:
Provided further that nothing in this rule shall be
construed as requiring the Court to enter in the
proclamation of sale its own estimate of the value
of the property, but the proclamation shall include
the estimate if any, given, by either or both of the
parties.
(3) Every application for an order for sale under
this rule shall be accompanied by a statement
signed and verified in the manner hereinbefore
prescribed for the signing and verification of
pleadings and containing, so far as they are
known to or can be ascertained by the person
making the verification, the matters required by
sub-rule (2) to be specified in the proclamation.
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(4) For the purpose of ascertaining the matters to
be specified in the proclamation, the Court may
summon any person whom it thinks necessary to
summon and may examine him in respect to any
such matters and require him to produce any
document in his possession or power relating
thereto.
9. In view of the above, the Trial Court is required
to follow the procedure as contemplated in the Code
strictly before proceeding further for the issuance of the
proclamation of sale. In case the petitioner is able to
satisfy the respondent's claim and furnish alternate
properties to the satisfaction of the Court, the same shall
be taken into consideration, and the current property shall
be released.
10. In light of the above, I pass the following:
ORDER
i. The Petition is disposed of.
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ii. Impugned order dated 05.04.2025, passed
by the Senior Civil Judge and Prl. JMFC, Sirsi,
in Execution Case No.32, is hereby set aside.
iii. The Trial Court/Executing Court is hereby
directed to proceed further in the matter
strictly in accordance with law and follow the
procedure as contemplated under the Code
of Civil Procedure, by providing an
opportunity of hearing to the petitioner/JDR
No.1.
iv. A proper valuation shall be ordered from a
Government approved valuer.
v. If an alternate property is given which meets
the satisfaction of the decree, the same shall
be accepted.
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
KGK/gab
CT-MCK
