Dismissed

M Ranjit @ Rankit Makkal v. Sri B Prashanth

Karnataka HC17 Nov 2021WP/14806/2021

Case brief

AI extract

What is this about?

High Court of Karnataka rejected the writ petition seeking to quash the trial court's order rejecting the petitioner's application for stay on sale of mortgaged property during execution proceedings. The court held that the petitioner could not sustain grounds to invalidate the execution of the decree. The writ petition was dismissed.

What did the court decide?

The writ petition seeking to quash the impugned order rejecting the application for stay on sale of property was rejected.

M Ranjit @ Rankit Makkal Vs Sri B Prashanth — Execution and Attachment | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF NOVEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.14806/2021 (GM-CPC)

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BETWEEN :

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M RANJIT @ RANKIT MAKKAL S/O LATE M.APPUKURRAN AGED 59 YEARS, R/AT NO.4, 2^ND MAIN ROAD, GANGANAGAR BENGALURU - 560 032.

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... PETITIONER

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(BY SRI OMKAR BASAVA PRABHU, ADVOCATE)

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AND :

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SRI B. PRASHANTH S/O LATE N.BHASKARAN AGED 52 YEARS, R/AT NO.15, 3^RD CROSS, KRISHNAMMA GARDEN, J.C.NAGAR, BENGALURU - 560 006.

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... RESPONDENT

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(BY SRI.RAVIKUMAR T.S., ADVOCATE FOR C/R)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 17.04.2021 ON I.A.NO.10 FILED BY THE PETITIONER UNDER ORDER 34 RULE 14 R/W SEC 151 OF THE CIVIL PROCEDURE CODE ON THE

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FILE OF THE CITY CIVIL AND SESSIONS JUDGE (CCH-62), AT BANGALORE, IN FDP NO.105/2018 AT ANNEXURE-A.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-

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O R D E R

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The petitioner, who has suffered a decree on the original side and has agreed to pay the decreetal amount according to the terms of the compromise petition filed before this Court in RFA No.1173/2018 filed by him impugning the decree dated 31.03.2018 in O.S. No.3339/2016 on the file of the LXI Additional City civil and Sessions Judge Bengaluru, has impugned the order dated 17.04.2021 rejecting his application [I.A. No.10] under Order XXXIV Rule 14 read with Section 151 of the Code of Civil Procedure, 1908 [for short, ‘ the CPC' ] in FDP No.105/2018 on the file of the LXI Additional City Civil and Sessions Judge, Bengaluru [for short, ' the trial Court '].

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The petitioner's rejected application is for stay of sale of the subject property in the proceedings in FDP No.105/2018. The learned counsel for the petitioner argues in support of the petition relying upon the following two fold submissions:

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[a] The respondent has filed the application in

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FDP No.105/2018 under Order XXXIV of CPC for final decree to realize the decreetal amount by the sale of the property mortgaged [the subject property]. However, such application cannot be maintained unless a suit for foreclosure is filed and a preliminary decree is drawn. The respondent has only filed a suit simpliciter for recovery of money which is decreed and the petitioner has accepted the liability in terms of the compromise petition filed before this Court. As such, the proceedings under Order XXXIV of CPC cannot be sustained and if the proceedings cannot be sustained, there cannot be a sale of the subject property in the final decree proceedings.

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[b] If the respondent could claim any remedy because of the decree in O.S. No.3339/2016 which stands merged with the compromise decree drawn by this Court in RFA No.1173/2018, the respondent would necessarily have to file an application under Order XXI of CPC.

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The merits of these two fold submissions are examined in the light of these uncontroverted facts and circumstances. The respondent, even before the petitioner filed his appeal before this Court in RFA No.1173/2018, had filed the proceedings under Order XXXIV of the CPC with the prayer which reads as under:

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"Wherefore, this Hon'ble Court may be pleased to pass Final Decree for the sale of the mortgaged suit schedule property and the proceeds of the sale are directed to be paid to the petitioner against the claim of Rs.50,00,000/- being principal amount, with

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interest @ 2% per month on Rs.50,00,000/- in respect of registered Mortgage Deed [without possession] dated 11.08.2014 as amounting to Rs.70,00,000/and further directed the respondent to pay future interest at 2% per month on Rs.50,00,000/- from the period from 07.04.2016 to 22.04.2016 as amounting to Rs.50,000/- and the further interest @ 2% per month to be calculated from 22.04.2016 till the date of realization along with the cost of this proceedings."

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However, after the compromise decree by this Court in RFA No.1173/2018, the respondent has filed an application under Order VI Rule 17 read with Section 151 of CPC detailing the circumstances leading to the compromise decree by this Court and for permission to execute Judgment and decree passed by this Court for the entire amount by the decree dated 31.03.2018. The respondent's application is allowed by order dated 1.3.2019 and the petitioner has not challenged this order. The parties, thereafter have participated in the

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proceedings before the final decree Court invoking different provisions of Order XXI of the CPC.

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This Court must therefore refer to the

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following proceedings in this regard. The petitioner, after the order dated 1.3.2019 by which the respondent is permitted to prosecute the proceedings for recovery of the decreetal amount in terms of the decree dated 31.03.2018 in O.S. No.3339/2016, has filed an application under Order XXI Rule 58 of CPC. This application is rejected on 17.10.2020. After the disposal of this application, the subject application is filed by the petitioner which is disposed of by the final decree Court by order dated 17.04.2021. After this impugned order, the petitioner has filed another application under Order XXI Rule 83 of CPC for postponement of the sale by ninety days. This application has been allowed by the final decree Court on 9.8.2021.

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Subsequently, the petitioner has filed

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another application and this time under Order XXVI Rule 10[a] of CPC. It is stated that this application is pending consideration and the petitioner's request is for demarcation of a portion of the property in the premise that the demarcated portion would be sufficient for ensuring recovery of the decreetal amount. The compromise decree in RFA No.1173/2018 is that the petitioner shall pay the amount assured therein by the cheques as mentioned in the decree and if these cheques are dishonoured, the respondent would be at liberty to proceed with the execution of the decree in O.S. No.3339/2016.

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This Court, in the circumstances as

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aforesaid, is of the considered view that neither of the grounds urged on behalf of the petitioner can be sustained. There can be no doubt that though the respondent has filed the application under Order XXXIV

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of CPC, but with the subsequent order on his application on 1.3.2019, the proceedings are continued for enforcement of the decree for money under Order XXI of CPC. As such, there is no reason for interference.

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The petition stands rejected.

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SD/JUDGE

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AN/-

M Ranjit @ Rankit Makkal v. Sri B Prashanth

Case brief

What is this about?

What did the court decide?

M Ranjit @ Rankit Makkal v. Sri B Prashanth

Case brief

What is this about?

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