Allowed

Shri Shankar S/O Maruti Jambagi v. Karnataka Co-Operative Society Ltd. Harugeri

Karnataka HC23 Mar 2023WP/100948/2023

Case brief

AI extract

What is this about?

Writ petition challenging the sale proclamation of attached property for recovery of a cooperative society loan was allowed. The impugned endorsement was set aside, and the execution court directed to reconsider the application after notifying the judgment debtor before issuing a fresh proclamation.

What did the court decide?

The impugned endorsement of sale proclamation is set aside. The executing court is directed to consider the application after hearing the judgment debtor on the next date of hearing.

Shri Shankar S/O Maruti Jambagi Vs Karnataka… — Execution and Attachment | Karnataka HC (2023)

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WP No. 100948 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 23^RD DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 100948 OF 2023 (GM-CPC)

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BETWEEN:

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SHRI SHANKAR S/O MARUTI JAMBAGI AGE. 47 YEARS, OCC. AGRIL. R/O. HARUGERI, TQ. RAIBAG, DIST. BELAGAVI 591220.

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…PETITIONER

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(BY SRI. KIRANKUMAR CHATTIMATH, ADVOCATE)

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AND:

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KARNATAKA CO-OPERATIVE SOCIETY LTD. HARUGERI REPRESENTED BY ITS ACCOUNTANT, SHRI SANTOSH S/O HANAMANT THAKKANNAVAR, AGE. 39 YEARS, OCC. SERVICE, R/O. HARUGERI, TQ. RAIBAG, DIST. BELAGAVI 591220

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Digitally signed by JAGADISH T R Location: High Court of Karnataka, Dharwad Date: 2023.03.24 11:57:44 +0530

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SMT. PREMA W/O MARUTI KUMBAR AGE. 43 YEARS, OCC. HOUSEHOLD, R/O. HARUGERI, TQ. RAIBAG, DIST. BELAGAVI. 591220

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SHRI KRISHNAPPA S/O IRAPPA RABAKAVI AGE. 27 YEARS, OCC. AGRIL, R/O. HARUGERI, TQ. RAIBAG, DIST. BELAGAVI. 591220

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…RESPONDENTS (BY SRI.LAXMAN T MANTAGANI, ADV. FOR R1) (R2 & R3-SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING ORDER PASSED BY THE PRL. CIVIL JUDGE AND JMFC, RAIBAG VIDE ANNEXURE-F IN EX.PETITION NO.21/2017 VIDE ANNEXURE-F DATED 20/08/2022 AS NULL AND VOID.

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WP No. 100948 of 2023

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THIS PETITION COMING ON FOR PRELIMNARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The captioned writ petition is filed by Judgment Debtor No.1 questioning the order relating to sale proclamation of attached property which was ordered to be held on 18.01.2023 and the proposed sale was resolved to be held on 20.02.2023.

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2. The contention of the petitioner is that sale proclamation attaching the property is issued without affording an opportunity to him.

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3. The petitioner claims that sale proclamation is issued in contravention of provisions under Order XXI Rule 66 of CPC. Firstly, he was never notified and notice of sale proclamation was never served on him. Respondent No.1 has initiated recovery proceedings seeking recovery of loan amount pursuant to the award passed by respondent No.1 holding that he is entitled to recover a sum of Rs.4,51,340/- with interest.

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WP No. 100948 of 2023

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4. The captioned writ petition is filed alleging that

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Executing Court has not verified as to whether sale proclamation notice was duly served on judgment debtors. Second limb of argument canvassed by the petitioner is that respondent No.1/Society has not made proper valuation of the property in question and there are other encumbrances over the suit schedule property and valuation of the property in question is not properly determined. Though sale proclamation should be settled only after notice to the judgment debtor, provisions of Rule 66 of Order XXI of CPC should not be understood as a

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notice to the judgment debtor intended to give the judgment debtor an opportunity to raise all kind of objections that he may have against proposed sale. Notice under Order XXI Rule 66(2) of CPC is more beneficial to the judgment debtor than decree holder, as it will give an opportunity to the judgment debtor to highlight features of the property to sell and secure fair and reasonable price to the said property under the gab of securing fair and reasonable price. The

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WP No. 100948 of 2023

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petitioner/judgment debtor cannot stall recovery proceedings. Proclamation of sale is made for information of intending purchaser and not of judgment debtor.

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5. Be that as it may, judgment debtor No.1 is

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present in the Court and if Executing Court is directed to issue fresh proclamation after notifying Judgment Debtor No.1 on the next date of hearing, no prejudice will be caused to respondent No.1/Society. Since Judgment Debtor No.1 is present before the Court, he shall appear before the Executing Court on 31.03.2023 . Application filed by respondent No.1/Society shall be dealt with by Executing Court bearing in mind procedure contemplated under Order XXI Rule 66 of CPC and thereafter shall expedite the matter as Decree Holder being a Society is entitled to recover in terms of Award which has attained finality..

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6. For the foregoing reasons, I proceed to pass the

following:

ORDER

WP No. 100948 of 2023

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a) Writ Petition stands allowed .

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b) The impugned endorsement of sale proclamation is set-aside.

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c) The Executing Court shall consider the application filed by respondent No.1/Society after hearing Judgment Debtor No.1 on the next date of hearing.

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d)It is made clear that based on the order passed by this Court, judgment debtor No.1 will not protract recovery proceedings by seeking unnecessary adjournments.

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e) Registry is directed to remit the deposit made by the petitioner to respondent No.1/Society to enable respondent No.1 to withdraw the amount.

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Pending applications, if any, do not survive for consideration and same stand disposed of.

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SD/-

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JUDGE

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JTR/List No.: 1 Sl No.: 19

Shri Shankar S/O Maruti Jambagi v. Karnataka Co-Operative Society Ltd. Harugeri

Case brief

What is this about?

What did the court decide?

Shri Shankar S/O Maruti Jambagi v. Karnataka Co-Operative Society Ltd. Harugeri

Case brief

What is this about?

What did the court decide?

What the court decided

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