Karnataka High Court
K B Somanna vs Javarayigowda on 21 March, 2012
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
IGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO! IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 21* DAY OF MARCH 2012. : BEFORE THE HON'BLE MR.JUSTICE RAM MOHAN RE DDY R. we No. 186/2010 CL R.S.A.NO. 186/ 2010 BETWEER: K.B.SOMANNA s/O NADAKERIGG WDA a BILIGOWDA, . AGED 40 YEARS, R/O KANDEGALA VILAGE, KASABA HOBLI, MALAVALLI TALUK- S71 430. APPELLANT BY oxi ninaiiayn whe: nav.) AND: | --_ 1 \JAVARAYIGOWDA . » §/G MAYAMMANA KENCHEGOWDA, -. AGED 52 YEARS, -. BY O KAR DEGALA VILLAGE, . KASABA HOBLI, MALAVALLI TALUK-571 430. 2. NINGAMMA @ JAYAMMA D/O CHIKKAMOGEGOWDA, - AGED 47 YEARS, - B/G KANDEGALA VILLAGE, KASABA HOBLI, MALAVALLI TALUK-571 430. .. RESPONDENTS (BY SRI MOHAN .S., ADV., FOR Ri SMT VEENA.K., ADV., FOR R2) THIS RSA IS FILED U/S 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.11.2009 PASSED IN LA ROP WUURT GF RAKNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH «Ze R.A.NQO.100/2009 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE, MANDYA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 1.07.2009 PASSED IN 0.8.N0.261/2006 ON THE FILE OF THE CIVIL JUDGE SR. 'D¥) MALAVALLI AND ETC., . oo R.S.A.NO.187/2010 BETWEEN: K.B.SOMANNA S/O NADAKERIGOWDA @ BILIGOWDA, AGED 40 YEARS, R/O KANDEGALA VILLAGE, KASABA HOBLI, | MALAVALLI TALUK-571 430. oo : ae . APPELLANT (BY SRI A.KESNAVA BHAT, ADV.) AND: JAVARAYIGOWDA 7 8/O MAYAMEAANS KERCHEGOWDA, AGED 52 YEARS. - R/O KANDEGALA VILLAGE, KASABA HOBLL MALAVALLI TALUK-57 l< 430. . RESPONDENT 7 pasonsen stv AND UNREPRESENTED) . TS RSA IS FILED U/S 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.11. 2009 PASSED IN RA.NO.99/2009 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE, MANDYA, ALLOWING THE APPEAL AND SETTING ASIDE .. THE JUDGMENT AND DECREE DATED 1.07.2009 PASSED IN _0.$.NO.261/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN) MALAVALLI AND ETC., THESE RSAs COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: tye HIGH COURT OF KAKNATAKAHIOH COUKT OF KAKNAIAKA HIGH COUKT OF KAKNAIAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO JUDGMENT
Briefly stated facts are:
One Ningamma @ Jayemma, -- the wife ot Javarayigowda, obtained a decree for inaimsnance | against her husband, which when, pat into execution in. Ex.No.60/ 1996, Javarayigowda the GDR failed to pay the decreetal ammount - leading to 'auction 'sale of his immovable property, meesuring 39 guntas of wet land in Sy.No. 60/24. of Kallaveerana calli, Kasaba Hobli, Malevalii Taluk, whence the appellant K.B.Somanna, the s: lccesaf xh bidder, before the Executing Court was issued with a. sale "certificate, but was not put in posseasion of the said property. The appellant instituted | O8No. 251/2006 before the Civil Judge (Sr.Dn), ' Malavalli tor declaration and possession of the auction purchased immovable property, arraigning the "respondents as defendants. The defendant/JDR entered "appearance and resisted the suit by filing written statement admitting the fact of Ningamma having obtained the decree for maintenance and the suit schedule property having been put to auction, but dk IGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH denied that the plaintiff was the successful bidder and that the auction sale was confirmed in favour of the plaintiff. In addition, it was contended that the suction 7 proceeding not being in accoriance with law Was a"
nullity and further that KB. Sormerina arraigned « os Qed | defendant new O.S.No. 16} 08. old No. 111/04 resisted the suit by filing written statement denying the plaint allegations and contending 'that he i the absolute owner of the euit schedule property pursuant to a court auction, confirmad by. the Pxecuting Court amd hence, was entitiod & *o © possession, -
2. The trial Court clubbed the suits together, frained. issues in each of the suites and recorded _ cominon evidence, whenee K.B.Somanna was examined : as P.W.1 and marked two documents as Exs.P.i and P.2, while Javarayigowda was examined as D.W.1 and
- os muerked one document as Ex.D.1.
3. The trial Court having regard to the material on record and the evidence of the parties, returned findings on the issues in favour of the plaintiff K.B.Somanna and pt HIGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO by common judgment and decree dated 1.7,2009 allowed ©O.S.No0.261/2006 and directed Javarayigawrda to handover possession of the suit schedule propery | within one week and sequentially -- dieaineed O.8.No.16/ 2008 instituted *y Jecrarayigowda,
4. Aggrieved by the common o judgment « and decree, Javarayigowda preferred RA. Now. 99 and 100 of 2009 before the Additional. District Judge, Mandya, whence by common judgment and decree dated 23.11.2009, the findings of the trial 'Court were reversed and the are benaccue allowing the appeals.
In other: words 2.8.it0: 261/2006 filed by K.B.Somanna for. declaration and possession was dismissed, while o. S. NO. 16/ 2008 filed by Javarayigowda was allowed : directing permanent injunction. Hence, these appeals 7 by ¥.B.Somanna,
5. The appeals were admitted on the following
--a | common substantial question of law on 11.02.2010:-
"Whether the lower Appellate Court was justified in holding that the auction sale in favour of the me ''IGH COURT OF KARNATAKA HIGH-COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH :
appellant was not valid, after having held that, the suit was not maintainable?"
6. In the admitted facts of the cese that "the respondent Javarayigowda was i possession of the sunt :
achedule property. The dismissal of Os. No. 18/ 2008 by the trial Court was justifiably interfered with, by the lower Appellate Court allow ing, RA. No. cori 2009 and decreeing O.S.No. 16/2008 ty common | Judgment and decree impugned, In that view of the matter, R.S.A.No. 186/ 2016, insofar as it relates to allowing R.A.No. 96/2009 19 decree a. 8. Ho. 16/ 2008 instituted by the 'respondent . Jevarayigowda, for permanent injunction doee not "cali for interference.
: _ 7. There can be no more doubt in the light of the : proviso: te 'Section 47 of CPC, all questions of dispute
-- between the auction purchaser and the judgment debtor me : can be determined by the Executing Court and not by a \yeparate suit amd therefore, the remedy of the auction | - purchaser iz to make an application in the Executing proceeding and not by instituting a separate suit for possession. This ie the law declared by the Apex Court {yA {GH COURT OF KARNATAKAHIGH CQURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO in Harnandrai Badridasa Va. Debidutt Bhagwatt Prasad and Others, followed by a learned: Single Judge of this Court in D.Ravgappa Va. - Geass and Others'. oe |
8. Thus, O.S.No. 261) 2006, instituted ty 'the | appellant K.B. Somanna for deciaration and possession of the suit schedule property, purchased im 'the auction sale in Ex.No.60/ 1996, was. not 'maintainable, and possession of the paid property could i be taken by filing an applicat ion ander Order 21 Rule 95 of CPC in the execution procening alone, 9, An cxaraination of the judgment and decree of oe the lower Appellate Court, what is discernable is that a . the Court mis-directed itself in framing a point for | consideration as to whether the auction gale of the suit schedule property conveyed title to the auction " gegative by an elaborate discussions extracting several opinions of the Apex Court and of this Court, to hold ' AIR 1973 5C 2423 by 2ILR 2Xi$ KAR d7$9 Woh LOURT OF KAKNAIAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH that the auction sale of the suit schedule property did not convey ttle to the purchaser. The question of validity of the auction sale in the execution 'proceeding a was not and could not have been a point of dispute in the suit instituted by the auction purchaser for recovery ;
of possession of the auction purchase 'fiteovable "
property. If O.8.No.261/ 2006 filed by the auction purchaser for declaration and possession of the suit schedule property, was "not. maintainable, it was unnecessary for the Iowwer Appellate Court to frame a point over validity of passing of title to the suit schedule property im an auction sale, of the executing court, which order perhaps "has attained a finality, in the oe absence of - 'challenge by the judgment : : : debior/ Respondent, eirnce there is no material what so de placed by the parties over the fate of the auction ss sale proceeding in Ex.No.60/1996. 'Therefore the s exeroiae by the Lower Appellate Court, is unwarranted, . - unnecessary and legal,
10. The common judgment and decree of the lower Appellate Court insofar as it relates to recording a by' tiGH COURT OF KAKNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO finding over point No.3 that the auction sale of the suit achedule property, of which, the appellant was. the successful bidder, did not convey valid tite, calle 5 for interference. es |
11. In the circumstances, the substerial question | of law is anawered in the negative In other words, the lower Appellate court was not justified in holding that the auction sale of the suit echediule Property in favour of the appellant + was not valid,
12. in 1 the result, fi RSA.N No. 187/2010 is allowed in part, The common judgment and decree in R.A.Nos.99 and 100 of 2009 of the lower Appellate Oe Court inaofar as it relates to the finding on point No.3 i set. acide and in all other respect remains unaltered; (ii) RBA. No. 186/ 2010 ; is dusmmseed. It ie made clear that if me the auction purchaser, in law is entitled to possession,
- oF the auction purchased immovable property, it is open S for the auction purchaser to file necessary application as also application to condone the delay setting forth all material facts, dates and ingredients in the affidavit Wy a 5 cee ", & . a "3 hal $3, °8 Pha é q = : 3 5 Bas fk & : § e i ¥ 8 pad :
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