Dismissed

Sri. Sadashivayya v. Smt. Pavithra P Prabhu

Karnataka HC13 Feb 2024WP/3429/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition challenging an auction order in execution proceedings. The judgment debtor failed to object at any stage despite appearing with counsel. The Court held that since statutory remedies under Order 21 CPC were available but ignored, and lack of objection precludes later challenges, the writ petition under Article 227 was not entertained.

What did the court decide?

The writ petition was dismissed holding that the judgment debtor failed to exhaust alternative statutory remedies and did not object during the execution proceedings.

Sri. Sadashivayya Vs Smt. Pavithra P Prabhu — Execution and Attachment | Karnataka HC (2024)

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1 - NC: 2024:KHC:6034 WP No. 3429 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA WRIT PETITION NO. 3429 OF 2018 (GM-CPC)

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BETWEEN:

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SRI. SADASHIVAYYA AGED ABOUT 84 YEARS S/O. LATE M. K. VISHWANATHAYYA R/AT NO. 204, PIONEER COMPLEX NELLIKAI BUNDER ROAD MANGALORE-575 001 D.K. DISTRICT BENEFIT OF SENIOR CITIZENSHIP NOT CLAIMED

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Digitally signed by PAVITHRA N Location: high court of karnataka

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(BY SRI. RAMA BHAT K.,ADVOCATE)

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AND:

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…PETITIONER

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SMT. PAVITHRA P PRABHU AGED ABOUT 46 YEARS W/O. MR. PAWAN M. PRABHU R/AT NEAR SHIRUR PARK VIDYANAGAR, HUBLI PIN-580 031

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SMT USHA S RAO W/O SRI SURESH RAO AGED ABOUT 48 YEARS RESIDING NEAR BAJILAKERI HANUMAN TEMPLE MANGALORE - 575 006 D.K. DISTRICT

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…RESPONDENTS (BY SRI. R BHADRINATH (NOC).,ADVOCATE FOR R1 SRI. B N PRAKASH .,ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 25.10.2017 AND ALL SUBSEQUENT PROCEEDINGS IN EX.CASE NO.80/2014 (O.S.NO.100/2012) ON THE FILE OF HON'BLE SENIOR CIVIL JUDGE, MANGALORE, D.K. VIDE ANNEXURE-A AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B-GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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The judgment debtor in Ex.case No.80 of 2014 on the file of the learned Senior Civil Judge, Mangalore, DK, is impugning the order dated 25.10.2017 holding the final bid and accepting the highest bid to sell the schedule property.

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Heard Sri. Rama Bhat K, learned counsel for the petitioner, Sri. R Bhadrinath, learned counsel for respondent No.1 and Sri. B N Prakash, learned counsel for respondent No.2. Perused the materials on record.

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Learned counsel for the petitioner - judgment debtor submitted that respondent No.1 as decree holder obtained a decree and filed execution case seeking recovery of the amount. The judgment debtor could not contest the

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execution case for his own reasons. The Trial Court proceeded to attach the property belonging to the judgment debtor, which is measuring 7 cents of land with 1000 sq.ft of residential building. Even though, the decree is only for Rs.10,00,000/with interest, the entire 7 cents of land with residential building was auctioned without any basis. Under Order 21 Rule 64 of CPC, the Court is bound to consider as to which portion of the property is required to be sold to satisfy the claim of the decree holder. The same was not done by the Executing Court, but proceeded to auction the entire property belonging to the judgment debtor. Thereby, the judgment debtor has left with no alternative and he will loose the entire property.

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Learned counsel submitted that invoking the writ jurisdiction of this Court for grant of writ of certiorari without exhausting the other efficacious remedies is not barred. He places reliance on the decision of this Court in S.K.Joshi And Anr. v/s Vidyavardhaka Sangh, Bijapur And Ors¹ and M/s Godrej Sara Lee Ltd. v/s The Excise and Taxation Officer Cum-Assessing Authority & Ors.² to contend that under writ

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1 ILR 2003KAR1896

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2 AIR 2023 SC 781

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jurisdiction, the Trial Court is empowered to grant the relief in favour of the petitioner.

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Learned counsel submitted that Order 21 Rule 90 of CPC is not the remedy available to the judgment debtor. Therefore, the only alternative for the petitioner - judgment debtor is to seek remedy before this Court. Hence, he prays for allowing the petition.

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Per contra, learned counsel for respondent No.1 being the decree holder submitted that he filed the suit for specific performance of the contract in OS No.100 of 2012. The Trial Court rejected the prayer for specific performance of the contract. However, the Court decreed the suit for refund of the earnest amount with interest as per judgment and decree dated 03.05.2014. When the judgment debtor had not repaid the amount, the decree holder filed Ex.case No. 80 of 2014. Even though the judgment debtor appeared before the Executing Court represented by his advocate, he never objected the execution at any stage of the proceedings. The property was attached, and thereafter it was auctioned. Final bid was held and the highest bid was accepted on 25.10.2017.

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The auction purchaser has already deposited the amount in its entirety. The decree holder has sought permission from this Court seeking to withdraw the decreetal amount. The said prayer was considered by this Court and the decree holder was permitted to file necessary application to withdraw the decreetal amount. Accordingly, the application was filed before the Executing Court and decreetal amount is already withdrawn.

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Learned counsel submitted that when the judgment debtor has not raised any objection during the entire proceedings of the execution case, he is not permitted to raise any objection at this stage. He has not filed any application to seek setting aside the same on any ground as stated under Order 21 Rule 90 of CPC. Even if such a ground was raised, the judgment debtor is not entitled to any relief in view of sub Rule 3 of Rule 90 of CPC. Therefore, he submitted that there is no merit in the contention taken by the petitioner and prays for dismissal of the petition.

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Learned counsel for respondent No.2 being the auction purchaser opposed the petition contending that there is

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no irregularity in holding the auction sale by the Executing Court. Sufficient opportunity was given to the judgment debtor either to pay the decreetal amount, but the same was not availed by him and no objection was raised at any point of time by the judgment debtor. The proviso to Rule 66 of Order 21 of CPC makes it clear that nothing in this Rule shall be construed as requiring the Court to enter in the proclamation of sale its only estimate of the value of the property. When no objection was raised by the judgment debtor, the Trial Court proceeded with the auction of the property.

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Learned counsel submitted that even the judgment debtor has not invoked the provision of Order 21 Rule 90 of CPC to seek setting aside the same. He directly approached this Court without raising any objection before the Executing Court. The decree holder has already withdrawn the decreetal amount and the balance amount is lying in the Executing Court. Under such circumstances, the petitioner cannot get any relief in this Court.

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Learned counsel places reliance on the decision of the Hon'ble Apex Court in Jagan Singh & Co v/s Ludhiana

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Improvement Trust and Ors³ in support of his contention that when none of the conditions mentioned in Order 21 Rule 90 (3) of CPC are satisfied, the petitioner is not entitled for any relief by this Court. Moreover, he has not exhausted his remedy before the Executing Court. Therefore, the petition is liable to be dismissed. Accordingly, he prays for passing appropriate orders.

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The facts of the case are not in dispute. Initially, respondent No.1 filed suit OS No.100 of 2012 seeking specific performance of the contract and got the decree for refund of the earnest amount of Rs.10,00,000/- with interest @ 12% per annum. When the judgment debtor has not repaid the amount, Ex.case No. 80 of 2014 came to be filed. It is not in dispute that the judgment debtor has not raised any objections at any stage of the proceedings. The attachment of the property in question was ordered by the Trial Court and thereafter, its auction was also ordered. The final bid was held on 25.10.2017 and respondent No.2 was declared as the highest bidder, accordingly, she deposited the bid amount. It is also not in dispute that the decree holder - respondent No.1 has already

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3 2022 SCC OnLine SC 1144

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withdrawn the decreetal amount as per the permission granted by this Court by filing necessary application before the Executing Court. It is at this stage, the judgment debtor has approached this Court.

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The only ground raised by learned counsel for the petitioner is that, even though the decreetal amount is Rs. 10,00,000/- with interest @ 12% per annum, the Executing Court held the auction of entire 7 cents of land with 1000 sq. ft. of residential building. Of course, learned counsel for the petitioner fairly conceded that the building in question may not fetch any value, but it is the land measuring 7 cents was worth lacks of rupees. According to the learned counsel for the petitioner, the Trial Court could have auctioned only a portion of the land which was sufficient to satisfy the decreetal amount with interest and cost. But nothing has been placed before this Court to substantiate his contention that the property in question was valued in lakhs and only a portion of it was sufficient to satisfy the decreetal amount, with interest and the cost.

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Learned counsel for the petitioner filed a memo along with a calculation sheet stated to be the guidance value of the property, which is said to have been obtained under Right to Information Act. There is absolutely nothing in this document to hold that this is the guidance value which was obtained by the petitioner under Right to Information Act. When there is absolutely no materials placed before the Court to contend that only portion of the land would have satisfied the decreetal amount with interest and cost, the petitioner is not entitled for any such relief.

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Admittedly, the petitioner being the judgment debtor has not filed his objections in the execution case, when he was served with notice, in spite of he appearing before the Court represented by his advocate. Even when the property in question was sought to be attached, he has not filed any objections. Even when the property was sought to be sold in auction, no objection was raised. When the judgment debtor has taken part in the proceedings before the Executing Court without raising his little finger at any stage of the proceeding, he cannot be permitted to raise objections at a later stage, when the auction is completed and the auction purchaser has

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already deposited the amount. It is also pertinent to note that the judgment debtor has not invoked any of the provision of Order 21 of CPC to set aside the auction sale held by the Trial Court. There is no reason as to why no such application was filed before the Executing Court.

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Learned counsel places reliance on the decision in S.K.Joshi (supra). But the facts and circumstances of the present case is entirely different. The co-ordinate Bench has categorically held that the rule requiring the exhaustion of statutory remedies before the writ will be granted as a rule of policy, convenience and discretion, even though it is not a rule of law. The Court has also held that it is left to the discretion of the Court either to entertain such petition under Articles 226 and 227 of the Constitution of India or to reject the same at the threshold where there are alternative remedies.

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Learned counsel for respondent No.2 places reliance on the decision in Jagan Singh (supra) , where the Hon'ble Apex Court considered the fact which is similar to the present case and held in paragraphs 35, 36, 38 and 39 as under:

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" 35. The Executing Court and the First Appellant Court duly supported the reasoning based on various failures of the Judgment Debtor : (a) did not file objections at the time of presentation of execution petition; (b) did not file any objections at the time of order of attachment; (c) no objections filed when proclamation under Order XXI Rule 66 of the said Code was made; (d) no objections filed even at the time of public auction being actually conducted.

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36. Learned senior counsel for the Appellant rightly drew the attention of this Court to Order XXI Rule 90(3) of the said Code to contend that it is clearly stated that no application to set aside a sale on grounds of irregularity or fraud under the Rule can be entertained on any ground which the applicant would have taken on or before the date on which the proclamation of sale was drawn up. The Explanation to the Rule further says that mere absence of or defect in attachment of the property sold should not by itself be a ground for setting aside the sale under this Rule. The Judgment Debtor/Respondent Trust failed to avail any of these opportunities at different stages.

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38. The mandatory nature of the twin conditions to be satisfied before an auction sale can be set aside as provided under Order XXI Rule 90(3) of the said Code which has been discussed by this Court in various judicial pronouncements. We may refer to two of them as under:

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i. In Saheb Kha n⁵ case, it was observed that satisfaction of only one of the two conditions was not sufficient. It was also observed that a charge of fraud or material irregularity must be specifically made with sufficient particulars and bald allegations would not do.

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ii. In Chilamkurti Bala Subrahmanyam v. Samanthapudi Vijaya Lakshm i⁶ , the aforesaid judgment was referred to with approval.

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39. We must note in the end that Order XXI of the said Code is exhaustive and in the nature of a complete Code as to how the execution proceedings should take place. This is the second stage after the success of the party in the civil proceedings. It is often said in our country that another legal battle, more prolonged, starts in execution proceedings defeating the right of the party which has succeeded in establishing its claim in civil proceedings. This is exactly what has happened in the present case. The various stages of Order XXI of the said Code when violated cannot given right to some extra indulgence merely because the Respondent Trust is an Improvement Trust. There cannot be a licence to prolong the litigation ad infinitum."

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Order 21 Rule 90 (3) of CPC makes it clear that no

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such application under the Rule could be entertained when the applicant could have taken such defence on or before the date on which the proclamation of sale was drawn. Admittedly, in

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the present case, the petitioner being the judgment debtor had not bothered to raise any such objections in the execution case. Much water has already flown under the bridge and at this stage the petitioner cannot be permitted to contend that auctioning the entire land measuring 7 cents will prejudice his right, that too with out any supporting materials. Therefore, I do not find any reason to entertain the petition.

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Hence, the writ petition is dismissed .

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Sd/JUDGE

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SPV List No.: 1 Sl No.: 3

Sri. Sadashivayya v. Smt. Pavithra P Prabhu

Case brief

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Sri. Sadashivayya v. Smt. Pavithra P Prabhu

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