Sri Sathish Shenoy Vs Smt. B Vijayalxmi Bhat

THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE CONFIRMATION OF SALE AS PER ANNEXURE-A DTD.24.1.2015 IN EX.13/09 BY USING WRIT OF CERTIORARI TO AN ENTIRE EXTENT OF LAND BEARING SY NO.183/P1 MEASURING 3 ACRES 22 CENTS AND RESTRICT THE SAME TO THE CLAIM AMOUNT MADE BY THE RESPONDENTS 1 AND 2 TO AN EXTENT OF 1 ACRE 04 CENTS ARE EQUIVALENT TO THE CLAIM AS CONTEMPLATED UNDER ORDER XXI RULE 64 AND 66 OF CPC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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The judgment-debtor is before this Court in this writ petition filed under Article 227 of the Constitution of India, seeking for the following reliefs:

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a) quash the confirmation of sale as per Annexure-'A' dt: 24.01.2015 in Ex.No.13/2009 by using writ of certiorari to an entire extent of land bearing Sy. No.183/P-1 measuring 3 acres 22 cents and restrict the same to the claim amount made by the respondents 1 and 2 to an extent of 1 acre 4 cents are equivalent to the claim as contemplated under Order XXI Rule 64 & 66 of CPC.

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b) Issue a writ in the nature of mandamus declaring that 3^rd respondent to re-delivery of portion of the remaining extent of 2 acres 18 cents or otherwise by demarcating the land to an extent he is entitled to.

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c) Issue such other appropriate writ or order of direction as this Hon'ble Court deems fit to grant under the circumstances of the case in the interest of justice and equity.

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Heard the learned Counsel for the parties.

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Respondent nos.1 & 2 herein who are the decree-holders in O.S.No.159/2000 had filed Execution Petition No.13/2009 before the Trial Court for recovery of Rs.10,19,743/- from the judgment-debtor, and in the execution petition, the property bearing Sy. No.183/P-1 of Kundapura village, Udupi Taluk, measuring 3 acres 22 cents was brought for public auction and respondent no.3 herein purchased the aforesaid item of land in the public auction for a bid amount of Rs.27,00,000/- which

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was deposited by him before the Trial Court and a sale deed was also executed in his favour. Challenging the order dated 24.01.2015 passed by the Executing Court, wherein respondent

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no.3 was declared as successful bidder in the public auction,

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the petitioner is before this Court.

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Learned Counsel for the petitioner having reiterated the grounds urged in the petition submits that, the amount recoverable by the decree-holders was only Rs.10,19,743/-, and for the said purpose, the entire property was not required to be brought for sale. He has placed reliance on the judgment of the Hon'ble Supreme Court in the case of BALAKRISHNAN

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VS MALAIYANDI KONAR - (2006)3 SCC 49 in support of his arguments, and accordingly prays to allow the petition.

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Per contra, learned Counsel for the respondents have argued in support of the order impugned and have prayed to dismiss the petition.

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Perusal of the material on record would go to show that challenging the very same order dated 24.01.2015 which is impugned in this writ petition, petitioner had earlier approached this Court in W.P.No.12895/2015 contending that the Executing Court had held the sale in contravention of Order XXI Rule 66 of CPC and the land in question which is a granted land was

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brought for sale within 15 years from the period of nonalienation, which was not permissible. This Court by order dated 28.07.2015, has dismissed W.P.No.12895/2015 which was filed by the petitioner challenging the very same order impugned. While dismissing W.P.No.12895/2015, this Court had observed that if the judgment-debtor has any other means to challenge the sale on any other ground, it is open for the judgment-debtor to do so if it is provided under law. On the strength of the said observation made by this Court while dismissing W.P.No.12895/2015 on 28.07.2015, this writ petition is filed after a period of nearly five years challenging the very same impugned order contending that entire property was not required to be brought for sale for recovery of the amount due to the decree-holder which could have been recovered by bringing a portion of property for sale.

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It is relevant to note here that after dismissal of W.P.No.12895/2015, petitioner had raised an objection before the Assistant Commissioner with regard to mutation of the name of respondent no.3 who is the successful bidder in respect of the land in question in whose favour sale deed was

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already executed, and in view of the objection raised by the petitioner, the revenue authorities had deleted the name of respondent no.3 from the revenue records of the land in question, and aggrieved by the said orders passed by the revenue authorities, respondent no.3 had approached this Court in W.P.No.33115/2016 and the petitioner herein was party-respondent no.4 in the said writ petition. This Court having taken into consideration that the auction sale of the property in question had attained finality, had overruled the objection raised on behalf of the petitioner herein and had directed the revenue authorities to enter the name of respondent no.3 herein in the revenue records of the land in question, of which he was the successful bidder. After W.P.No.33115/2016 was allowed by this Court on 11.10.2018, subsequently the present writ petition is filed challenging the very same order dated 24.01.2015 which has been confirmed by this Court in W.P.No.12895/2015.

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In the case of Balakrishnan's case supra, the Hon'ble Supreme Court has observed that the court must inquire whether sale consideration of a portion of the property is

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sufficient to satisfy the decree and if so put only that portion to

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sale to satisfy the decree. However, the Hon'ble Supreme Court had refused to interfere with the sale since the same had attained finality. Even in the case on hand, the sale has attained finality long back and the challenge made by the petitioner to very same impugned order in W.P.No.12895/2015 was rejected on 28.07.2015, and merely for the reason that there is an observation by this Court that it is open for the petitioner to raise any other ground challenging the same, it does not mean that after a lapse of five years from dismissal of W.P.No.12895/2015 the petitioner can once again question the order impugned before this Court raising another ground which was available to him in the earlier round of litigation.

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In W.P.No.33115/2016, this Court taking into

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consideration that the sale made in favour of respondent no.3 herein has attained finality, has overruled the objections raised by the petitioner herein and has directed the revenue authorities to enter the name of respondent no.3 in the revenue records, of which, he is the successful bidder. Under the circumstances, the judgment in Balakrishnan's case supra

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is not applicable to the facts of the present case since the sale has attained finality and thereafter 10 years have lapsed, and therefore, this writ petition is also liable to be dismissed on the ground of delay and latches. Accordingly, the writ petition is dismissed.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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KK

Sri Sathish Shenoy v. Smt. B Vijayalxmi Bhat

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Sri Sathish Shenoy v. Smt. B Vijayalxmi Bhat

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