Karnataka High Court
Mrs. Maria Violet W/O. David Lasardo vs Sri. Nagappa S/O. Murigeppa Hediyala on 4 March, 2024
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NC: 2024:KHC-D:4811
WP No. 104545 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MRS JUSTICE M.G.UMA
WRIT PETITION NO.104545/2018(GM-CPC)
BETWEEN:
MRS. MARIA VIOLET
W/O. DAVID LASARDO, AGED 47 YEARS,
REPRESENTED BY HER GPA HOLDER,
SRI DAVID S/O. ANTHONY LASRADO,
AGED 53 YEARS, OCC:BUSINESS
R/O: 'CELESTE', APARTMENT NO.504,
MURACARA HILL ROAD,
BENDORE, MANGALORE - 575 002.
...PETITIONER
(BY SRI V.S.KOUJALAGI, ADVOCATE FOR
SRI V.M.SHEELAVANT, ADVOCATE)
AND:
1. SRI NAGAPPA
S/O. MURIGEPPA HEDIYALA
AGED: 54 YEARS,
Digitally OCC: BUSINESS,
signed by
MANJANNA E N. H. HEDIYALA,
Location: RED CHILLI MERCHANT,
High Court of
Karnataka R/O: BASAVESHWAR NAGAR,
BYADAGI TALUKA,
DIST:HAVERI.
2. SMT. GOURAMMA
W/O. MURIGEPPA HEDIYALA,
AGED: 70 YEARS,
OCC: HOUSE HOLD,
OCC: M. C. HEDIYALA,
RED CHILLI MERCHANT,
R/O: BASAVESHWAR NAGAR,
BYADAGI TALUKA,
DIST: HAVERI.
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WP No. 104545 of 2018
3. THE BRANCH MANAGER,
SYNDICATE BANK,
BYADAGI TALUKA, DIST:HAVERI.
4. SRI DEVARAJ
S/O. NEHARU OLEKAR,
AGED: 28 YEARS, OCC: BUSINESS,
R/O: HALLESHIDENUR VILLAGE,
TAL:BYADAGI, DIST:HAVERI.
5. SRI MALATESH
S/O. HONNURAPPA KADASALI,
AGED: 32 YEARS, OCC: BUSINESS,
R/O: VALMIKI SANGHA,
BYADAGI TALUKA, DIST:HAVERI.
6. SRI HONNAPPA
S/O. PAKKIRAPPA KADASALI,
AGED: 56 YEARS, OCC: BUSINESS,
R/O: VALMIKI SANGHA,
BYADAGI TALUKA, DIST:HAVERI.
7. SRI SURESH
S/O. LAKSHMINARAYAN MELGERI,
AGED: MAJOR, OCC:BUSINESS,
R/O: APMC YARD, BYADAGI TALUKA,
DIST:HAVERI.
...RESPONDENTS
(BY SRI SURESH GUNDI, ADV. FOR R3;
SRI S.G.KADADAKATTI, ADV. FOR R4;
SRI S.S.BETURMATH, ADV. FOR
SRI K.L.PATIL, ADV. FOR R5 AND R6;
SRI V.S.KALASURMATH, ADV. FOR R7;
R1 AND R2 NOTICE HELD SUFFICIENT)
THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA, 1950 PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT,
ORDER OR DIRECTION AND QUASH THE COMMON ORDER DATED
23.04.2018 PASSED BY THE SENIOR CIVIL JUDGE AND C.J.M.,
BYADAGI, ON I.A.NO.9 AND 11 FILED IN EXE. PETITION
NO.214/2014, PRODUCED AT ANNEXURE - F, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING - B
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 104545 of 2018
ORDER
Heard the learned counsel for the petitioner and learned counsel for respondent No.3-bank, learned counsel for 4 to 7 who are purchasers and perused the materials on record.
2. It is the contention of the petitioner that he is the decree holder who obtained the decree in O.S.No.177/2013. To execute the decree, execution case No.214/2014 was filed. The executing court created a charge over the property by attaching it. However, respondent Nos.4 to 7 who are purchasers have filed I.A.Nos.9 to 11 to raise the attachment. It is the contention of respondent Nos.4 to 7-purchasers and respondent No.3-bank that respondent Nos.1 and 2, who are the original owners mortgaged this very same property in favor of respondent No.3-bank during 2010. This fact is not disputed by the petitioner. When there was already a mortgage during 2010, even prior to borrowing of the money and filing of the suit, respondent No.3 will have the -4- NC: 2024:KHC-D:4811 WP No. 104545 of 2018 first charge over the property. Even though it is stated that the executing court created charge over the property by attaching the same, it is subject to the first charge created under the registered mortgage deed. Under such circumstances, the petitioner, even though the decree holder cannot have any priority over the right of respondent No.3. It is stated that respondent Nos.1 and 2 are having other properties against which the petitioner can proceed, if they are free from encumbrance.
I have gone through the impugned order passed by the trial court. It has discussed at length about the charge created over the property by respondent Nos.1 and 2 by mortgaging the same with respondent No.3, which was later sold in favor of respondent Nos.4 to 7-purchasers. I do not find any reason to interfere with the same. Hence, I pass the following:
ORDER The petition is dismissed.
SD/-
JUDGE MBS/CT-ASC