Dismissed

Sri M Muninanja v. Sri N Changalarayan

Karnataka HC7 Apr 2022WP/1418/2022

Case brief

AI extract

What is this about?

This Court dismissed a writ petition filed under Article 227 of the Constitution challenging an order declining to set aside an auction sale. The Court held that the petitioner failed to comply with interim stay and deposit orders, rendering them ineligible for equitable relief, and saw no merit in the challenge to the sale procedure.

What did the court decide?

Writ Petition dismissed as devoid of merits due to non-compliance with interim orders and failure to establish injury from sale procedure.

Sri M Muninanja Vs Sri N Changalarayan — Execution and Attachment | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 07^TH DAY OF APRIL, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE E.S. INDIRESH

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WRIT PETITION NO.1418 OF 2022 (GM-CPC)

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BETWEEN:

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SRI M MUNINANJA S/O LATE MUTHAPPA AGED ABOUT 53 YEARS R/AT NO.47, ITC COLONY JEEVANAHALLI, COX TOWN BENGALURU-560 005.

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...PETITIONER

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(BY SMT. SRUTI C CHAGANTI, ADVOCATE)

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AND:

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SRI N CHANGALARAYAN S/O LATE MUNISWAMY AGED ABOUT 72 YEARS R/AT NO.48, ITC COLONY JEEVANAHALLI, COX TOWN BENGALURU-560 005.

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SMT. NEELAMMA W/O LATE M CHANDRA AGED ABOUT 59 YEARS.

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SMT. RANJINI D/O LATE M CHANDRA AGED ABOUT 34 YEARS

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SRI PRADEEP S/O LATE CHANDRA AGED ABOUT 29 YEARS

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RESPONDENT NOS. 2 TO 4 ARE R/AT NO. 47, ITC COLONY JEEVANAHALLI, COX TOWN BENGALURU-560 005.

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….RESPONDENTS

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(BY SRI V ANAND, ADVOCATE FOR R1; R2 TO 4 SERVED AND UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 08^TH APRIL, 2021 PASSED BY THE LEARNED LVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU (CCH-58) ON IA.NO.X FILED BY THE PETITIONER IN EX.NO.25007 OF 2017 PRODUCED HEREWITH AS ANNEXURE-N AND ETC.,

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IN THIS WRIT PETITION ARGUMENTS BEING HEARD, JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This Writ Petition is filed by the judgment debtor No.1 in Execution Petition No.25007 of 2017 on the file of the LVII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru, challenging the order dated 08^th April, 2021.

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The relevant facts for adjudication of this Writ Petition are that, that the respondents/Decree holders have filed

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suit in Original Suit No.25614 of 2011 on the file of the trial Court seeking relief of specific performance of agreement dated 26^th March, 2010. The said suit came to be decreed in part, wherein the trial Court declined to grant decree for the suit for specific performance of sale agreement dated 26^th March, 2010, however, directed defendants 1 and 3 to refund Rs.6,00,000/with interest at the rate of 6% per annum from 26^th March, 2013 till the date of realisation. Since the defendant/judgment debtor has not deposited the amount as directed by the trial Court, the plaintiff has filed Execution Petition No.25007 of 2017 before the trial Court, seeking issuance of sale proclamation of the suit schedule property and attachment on sale of suit schedule immovable property. The judgment debtor entered appearance and has filed application in IA.X under Order XXI Rule 89 read with Section 151 of Code of Civil Procedure, seeking setting aside of the auction sale to be conducted in respect of the suit schedule property. The said application was contested by the Decree holder. The trial Court, after considering the material on record, by order dated 08^th April, 2021, dismissed the application

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filed by the judgment debtor No.1. Feeling aggrieved by the same, judgment debtor has presented this Writ Petition.

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I have heard Smt. Sruti C. Chaganti, learned counsel appearing for the petitioner and Sri V. Anand, learned counsel appearing for the respondents.

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Smt. Sruti V. Chaganti, learned counsel appearing for the petitioner, argued that drawing of attachment warrant and sale warrant by the trial Court to an extent of one-third share of suit schedule property is unsustainable in law. She further contended that the portion of undivided property cannot be attached and put into sale. It is further contended that the trial Court has not considered the fact that notice has not been served to the petitioners herein in terms of Order XXI Rule 89 of Code of Civil Procedure and therefore, the impugned order passed by the trial Court requires interference in this Writ Petition.

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Per contra, Sri V. Anand Learned counsel appearing for the respondent sought to justify the impugned order passed by this court and he also invited the attention of the court to the

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order sheet of this court dated 31^st January, 2022 and argued that the petitioner has not complied with the said order and therefore, not entitled for the equitable relief under Article 227 of the Constitution of India.

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In the light of the submission made by the learned counsel appearing for the parties, careful consideration of the writ papers would indicate that the respondent herein has filed Original Suit No. No.25614 of 2016 against the defendants/ judgment debtors seeking relief of specific performance of the agreement dated 26^th March 2010 and the said suit came to be allowed in part, after contest by the parties. Operative portion of the order reads as under:

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“ The suit of the plaintiff is disposed as follows:

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Prayer of the plaintiff for the relief of specific performance of sale agreement dated 26.03.2010 and for joint possession of the suit property is rejected.

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Plaintiff is entitled for the refund of Rs.6,00,000/(Rupees six lakhs only) from the defendants 1 and 3 with interest at the rate of 6% per annum from 26^th March, 2013 till the date of realisation.

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The defendants No.1 and 3 are directed to refund the aforesaid amount to the plaintiff within three months from the date of this order, failing which, the plaintiff is entitled for future interest on the said amount at the rate of 8% per annum till the date of realisation.

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The plaintiff on receipt of the aforesaid amount, is directed to return exhibit P2 the original sale deed dated 27^th December, 2001 executed by the Karnataka Housing Board in favour of the defendants, to defendant No.1.

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The plaintiff is also entitled to costs.

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Draw up decree accordingly ”

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In view of the failure on the part of the judgment debtor to fulfill the direction passed by the trial Court, the plaintiff has filed Execution petition No.25007 of 2017. In the said Execution Petition, defendant No.1 has filed application under Order XX1 Rule 89 and 90 of Code of Civil Procedure to set aside the auction sale. This Court, by order dated 31^st January, 2022 granted interim stay subject to depositing entire decretal amount with interest. This Court also held that, in the event, the judgment debtor failed to deposit the entire decretal amount with interest, the interim order granted stands

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automatically vacated. Thereafter, Writ Petition was listed before this Court on 29^th March, 2022 and in order to provide last opportunity to the petitioner to deposit the amount, this Court granted interim order to deposit the amount of Rs.4,68,000/- before the trial Court. Undisputably, these two orders are not followed/complied with by the petitioner herein. In that view of the matter, in view of the law declared by the Hon'ble Apex Court in the case of PRESTIGE LIGHTS LIMITED v. STATE BANK OF INDIA reported in (2007)8 SCC 449, wherein it is held that, “an order passed by a competent court – interim or final – has to be obeyed without any reservation and in case of non-compliance, the court may refuse the party violating such order to hear him on merits”. In that view of the matter, petitioner is not entitled for relief in the Writ Petition.

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That apart, I have carefully considered the finding recorded by the trial Court. Perusal of the order sheet maintained by trial Court in Execution Petition would indicate that the petitioners herein have not made any attempt to make payment to the Decree holder. Suit is filed in the year 2011 and

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the judgment and decree passed by the trial Court is during 2016. However, the Decree holder is not able to enjoy the fruits of the decree even after six years. In that view of the matter, I do not find any substance in the submission made by the learned counsel appearing for the petitioner. Perusal of the writ papers would further indicate the fact that the Court Commissioner has been appointed for auction of the suit schedule property and the property was auctioned for sum of Rs.16,10,000/- on 27^th July, 2019 and the sale is yet to be confirmed by the trial Court. It is also forthcoming from the writ papers that the judgment and decree dated 05^th October, 2016 in Original Suit No.25614 of 2011 has reached finality as the judgment debtors/petitioners have not challenged the judgment and decree produced at Annexure-A to the Writ Petition. Though the learned counsel appearing of the petitioner made an attempt to argue that the impugned order passed by the trial Court is contrary to Order XXI Rule 89 and 90 of the Code of Civil Procedure, as well referred to the amendment made by the High Court of Madras, however, in view of the fact that the immoveable property has been sold in auction and the judgment debtors are not able to

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pay the sale consideration amount as directed by the trial Court in the year 2016, I am of the view that the petitioners herein have not made out a case for interference in this Writ Petition.

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It is well established principle that, under Rule 90 of Order XXI of Code of Civil Procedure, mere illegality or irregularity in conduct of sale is not enough, the applicant must also show having suffered substantial injury on account of such irregularity or illegality (see AIR 1991 SC 770). In the case of SUKUMAR DE v. BIMALA AUDDY reported in (2014)1 SCC 584, it is held by the Hon'ble Apex Court that the power of the Court to set aside sale on deposit of required amount by judgment debtor is discretionary in nature and such discretion is to be exercised properly. Applying the said principle to the case on hand, the judgment debtor/petitioner herein has not proved that he was able to satisfy the decretal amount nor even deposit the requisite amount, pursuant to the interim order passed by this Court, which would clearly establish the fact that the judgment debtor/petitioner has filed the impugned application without any basis and therefore, there is no merit in the writ petition. It is

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also useful to refer to the judgment of the Hon'ble Apex Court in the case of HUKUMCHAND v. BANSILAL AND OTHERS reported in AIR 1968 SC 86 and in the case of JANAKRAJ v. GURDIAL SINGH r eported in AIR 1967 SC 608 wherein it is held that if an application for setting aside sale is dismissed by the trial Court, then the higher court has no option but to confirm the same, if the judgment debtor fails to comply with the provisions contained under Order XXI Rule 89 and/or 90 of Code of Civil Procedure. In that view of the matter there is no perversity or illegality in the order impugned passed by the trial Court. In the result, writ petition is dismissed as devoid of merits.

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Sd/JUDGE

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lnn

Sri M Muninanja v. Sri N Changalarayan

Case brief

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Sri M Muninanja v. Sri N Changalarayan

Case brief

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