Disposed

Smt H P Vanajakshi v. the Chief Executive Officer

Karnataka HC6 Mar 2024WP/4000/2024

Case brief

AI extract

What is this about?

Legal representatives of deceased judgment debtors challenged an executing court order bringing their separately partitioned properties to auction in execution of a cooperative bank award. The Bank undertook to proceed only against the debtor's share. The High Court set aside the orders and restricted execution to those properties.

What did the court decide?

Impugned orders set aside; execution confined to A and B schedule properties; Bank barred from proceeding against C and D schedule properties.

Smt H P Vanajakshi Vs the Chief Executive Officer — Execution and Attachment | Karnataka HC (2024)

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NC: 2024:KHC:9353 WP No. 4000 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 4000 OF 2024 (GM-CPC)

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BETWEEN:

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SMT H P VANAJAKSHI

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W/O LATE A S ESHWARE GOWDA, AGED ABOUT 60 YEARS, R/AT HOSAHALLI,

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AVATHI VILLAGE AND POST, CHIKKAMAGALORE TALUK AND DISTRICT-577 101.

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MR A E PRUTHVIS S/O LATE A S ESHWARE GOWDA AGED ABOUT 27 YEARS, R/AT HOSAHALLI,

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AVATHI VILLAGE AND POST,

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CHIKKAMAGALORE TALUK AND DISTRICT-577 101.

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Digitally signed by VANDANA S Location: High Court of Karnataka

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SMT VEDHA W/O LATE A S RAGHU, AGED ABOUT 54 YEARS, R/AT HOSAHALLI,

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AVATHI VILLAGE AND POST, CHIKKAMAGALORE TALUK AND DISTRICT-577 101.

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SRI A R CHIRANJEEVI S/O LATE A S RAGHU, AGED ABOUT 23 YEARS, R/AT HOSAHALLI,

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AVATHI VILLAGE AND POST,

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CHIKKAMAGALORE TALUK AND DISTRICT-577 101. …PETITIONERS (BY SRI. G. BALAKRISHNA SHASTRY., ADVOCATE FOR SRI. DHARMAPAL.,ADVOCATE)

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NC: 2024:KHC:9353 WP No. 4000 of 2024

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AND:

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THE CHIEF EXECUTIVE OFFICER PRIMARY AGRICULTURE CO OPERATIVE SOCEITY LTD, AVATHI, CHAIKMAGALORE

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TQ AND DISTRICT-577101 REPT BY ITS CEO K. B NAGARAJ, S/O BEEME GOWDA, AGED ABOUT 58 YEARS.

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SRI A S KRISHNE GOWDA EX SECRETARY S/O LATE SIDDE GOWDA, AGED ABOUT 67 YEARS, R/AT AVATHI VILLAGE AND POST, CHIKAMAGALORE TALUK AND CHIKAMAGALORE DISTRICT-577 101.

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SMT H S JAYANTHI W/O A S KRISHE GOWDA, AGED ABOUT 60 YEARS, R/AT AVATHI VILLAGE AND POST, CHIKAMAGALORE TALUK AND CHIKAMAGALORE DISTRICT-577 101.

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SRI ABINANDAN S/O A S KRISHNE GOWDA, AGED ABOUT 29 YEARS, R/AT AVATHI VILLAGE AND POST, CHIKAMAGALORE TALUK AND

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CHIKAMAGALORE DISTRICT-577 101.

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SRI A U MAHENDRA ALIAS A.U MAHENDRA GOWDA AGED ABOUT 65 YEARS, R/AT AVATHI VILLAGE AND POST, CHIKAMAGALORE TALUK AND CHIKAMAGALORE DISTRICT-577 101.

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SRI A U POORNESH S/O H R NAGAPPA GOWDA, MAJOR, R/AT AVATHI VILLAGE AND POST, CHIKAMAGALORE TALUK AND CHIKAMAGALORE DISTRICT-577 101

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…RESPONDENTS

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(BY SRI.B.E. SHREEDHAR., ADVOCATE FOR C/R-1 NOTICE TO R-5 & R-6 ARE D/W VIDE ORDER DATED: 08.02.2024)

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3 - NC: 2024:KHC:9353 WP No. 4000 of 2024

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THIS W.P IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD 16.12.23 FOR HAVING REJECTED THE IA NO. 2 FILED BY THE 1ST PETITIONER UNDER SECTION 47 OF C.P.C PASSED BY THE LEARNED II ADDL. SENIOR CIVIL JUDGE AND JMFC, AT CHIKAMAGALUR ISSUING THE SALE PROCLAMATION ORDER DTD 21.12.2013 IN EX. NO. 109/2021, WHICH IS THE COPY PRODUCED AT ANNEXURE-K.

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

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ORDER

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This petition by the legal representatives of deceased judgment debtor Nos.4 and 5 in Ex.No.109/2021 on the file of the II Addl. Senior Civil Judge and JMFC, Chikamagalur is directed against the impugned order dated 16.12.2023 whereby the application I.A.No.2 filed by the petitioners under Section 47, CPC was rejected by the Executing Court which proceeded to issue sale proclamation on 21.12.2023 which is also assailed in the present petition.

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Heard learned counsel for the petitioners and learned counsel for the respondents and perused the material on record.

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4 - NC: 2024:KHC:9353 WP No. 4000 of 2024

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A perusal of the material on record will indicate that the first respondent No.1-Bank obtained award against respondent No.2 – A.S.Krishne Gowda who is the husband of respondent No.3 on 08.11.2021. The said award obtained by the respondent No.1Bank against Krishne Gowda was put into the instant execution proceedings in which the petitioners who are the wife and children of Krishne Gowda’s brothers, late A.S.Eshware Gowda and late A.S.Raghu were arrayed as the legal representatives of Judgment Debtor Nos.4 and 5. In the said execution proceedings, apart from the properties that fell to the share of Krishne Gowda and his children in the registered partition deed dated 26.09.2000, the properties that fell to the share of Eshware Gowda (‘C’ schedule properties) and Raghu (‘D’ schedule properties) were also included in the execution proceedings and the same is sought to be brought to the public auction by the respondent No.1-Bank-decree holder. It is the grievance of the petitioners that much prior to passing the impugned award by the ARCS, the C schedule properties and D schedule properties had already been allotted to the share of Eshware Gowda and Raghu which could not have been made subject matter of execution proceedings, much less brought to sale by the Executing Court and consequently the impugned order

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NC: 2024:KHC:9353 WP No. 4000 of 2024

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passed by the Trial Court rejecting I.A.No.2 and bringing the properties of petitioners also to sale deserves to be set aside.

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Per contra, learned counsel for the respondent No.1Bank on instructions submits that the respondent No.1-Bank would proceed only/solely against the properties allotted to Krishne Gowda and his children which are described as A schedule and B schedule properties in the registered partition Deed dated 26.09.2000 and not against the ‘C’ & ‘D’ schedule properties allotted to the share of Eshware Gowda & Raghu.

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In view of the aforesaid facts and circumstances and submissions made by both sides, I deem it just and appropriate to set aside the impugned orders and direct the executing Court to proceed only against the properties allotted to the share of Krishne Gowda and his children described as A schedule properties and B schedule properties in the registered partition Deed dated 26.09.2000. It is further directed that the respondent No.1-Bank shall not be entitled to proceed against the properties of the petitioners which were allotted to the share of Eshware Gowda and Raghu and described as C schedule properties and D schedule properties to the partition Deed dated 26.09.2000.

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NC: 2024:KHC:9353 WP No. 4000 of 2024

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Subject to the aforesaid modification to the impugned

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order and directions, the petition stands disposed of.

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SD/JUDGE

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DHA List No.: 1 Sl No.: 21

Smt H P Vanajakshi v. the Chief Executive Officer

Case brief

What is this about?

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Smt H P Vanajakshi v. the Chief Executive Officer

Case brief

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