Karnataka High Court
Sree Murthy, S/O. Late Rama Bovi vs The State By Psi on 30 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC-D:12476
WP No. 101826 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 101826 OF 2016 (GM-RES)
BETWEEN:
SREE MURTHY
S/O. LATE RAMA BOVI,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O. BOVI COLONY, 2ND CROSS,
BHADRAVATHI,
DIST: SHIVAMOGGA.
...PETITIONER
(BY SRI. T. HANUMAREDDY, ADVOCATE)
AND:
GIRIJA A
BYAHATTI
1. THE STATE BY PSI,
Location: HIGH
COURT OF YALABURGA POLICE STATION,
KARANTAKA
DHARWAD
BENCH YALABURGA, DIST: KOPPAL
2. SREE H. RACHAPPA
S/O. RACHAIAH,
AGE: MAJOR, OCC: NOT KNOWN,
R/O KACHEGONDANAHALLI,
TQ: BHADRAVATHI,
DIST: SHIVAMOGGA.
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NC: 2024:KHC-D:12476
WP No. 101826 of 2016
3. THE DEPUTY COMMISSIONER,
SHIVAMOGGA DISTRICT,
SHIVAMOGGA.
4. THE TAHASILDAR,
BHADRAVATHI,
SHIVAMOGGA DISTRICT,
SHIVAMOGGA.
...RESPONDENTS
(BY SRI. PRAVEEN K. UPPAR, AGA FOR R1, R3 & R4;
SRI. MAHESH WODEYAR, ADV. FOR R2)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT OF CERTIORARI QUASHING THE AUCTION SALE
DATED:25.11.2015 HELD AT THE OFFICE OF THE RESPONDENT
NO.4 VIDE ANNEXURE-E LETTER DATED:27.11.2015, VIDE
ANNEXURE-E WRITTEN BY THE TAHASILDAR, BHADRAVATHI
TO THE DEPUTY COMMISSIONER, SHIVAMOGGA INTIMATING
THE AUCTION SALE BEARING NO.NAM.MISC.CR.29/07-08 IN
FAVOR OF THE RESPONDENT NO.2 HEREIN AND THE LETTER
WRITTEN BY THE RESPONDENT NO.3 TO THE SHIRASTHEDAR,
JMFC AT YALABURGA AT ANNEXURE-D DATED:26.11.2015
BEARING NO.SANKE:M6.CFR.BDVT.12/12-13/12921; ISSUE
WRIT OF MANDAMUS DIRECTING THE RESPONDENT NO.1 TO
HOLD ENQUIRY IN THE MATTER AND TO FILE A REPORT.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
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NC: 2024:KHC-D:12476
WP No. 101826 of 2016
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)
1. Heard the petitioner's counsel, learned AGA appearing for respondents No.1, 3 and 4 and also the counsel appearing for respondent No.2.
2. The present petition is filed praying this Court issue writ of certiorari quashing the auction sale dated 25.11.2015 held at the office of the respondent No.4 and letter dated 27.11.2015 written by the Tahasildar, Bhadravathi to the Deputy Commissioner, Shivamogga, vide Annexure-E, intimating the auction sale bearing No.Nam.Misc.CR.29/07-08 in favour of respondent No.2 herein and the letter written by the respondent No.3 to the Shirsthedar, JMFC at Yalaburga at Annexure-D dated 26.11.2015 bearing No.Sanke: M6.CFR.BDVT.12/12-13/12921. The petitioner has also sought for issue of writ of mandamus directing the respondent No.1 to hold enquiry in the matter and to file a report and such -4- NC: 2024:KHC-D:12476 WP No. 101826 of 2016 other relief as deemed fit in the circumstances of the case.
3. The factual matrix of the case of the petitioner as narrated in the petition is that;
3.1. He is the resident of Bhadravathi and the owner of the land bearing No.15/8P15 measuring 2 acres and he got the same through a registered family partition dated 16.09.2004 as per Annexure-A. It is also his case that, earlier to the registered partition, the land in question was standing in the name of the mother of the petitioner as the said land has been mutated in her name after the death of the father of the petitioner.
3.2. The mother of the petitioner alleged to have stood as surety to the accused in CC No.371/2003 on the file of the learned JMFC at Yalaburga for a sum of Rs.10,000/- for the like sum for accused No.1 and 2 in the said case -5- NC: 2024:KHC-D:12476 WP No. 101826 of 2016 and as the accused did not appear before the Court, the bail bonds were forfeited and FLW is also issued and separate case is registered in Crl.Misc.No.5/2004 and copy of the warrant dated 16.09.2005 is also produced as Annexure-B. 3.3. It is also stated that mother of the petitioner had never been stood as surety to any one, particularly the accused in CC No.371/2003 and by impersonating the mother of the petitioner, the surety was offered in that case. It is also contended that, the petitioner is in peaceful possession and enjoyment of the property and the Record of Rights of the land has been misused by the accused by impersonating the mother of the petitioner. His mother is also a rustic villager and offering the surety at Yelaburga is highly impossible.
3.4. It is submitted that proceedings has been initiated for recover a sum of Rs.10,000/- and -6- NC: 2024:KHC-D:12476 WP No. 101826 of 2016 as accused Nos.1 and 2 in that case have not attended the Court properly and bail bonds were forfeited, proceedings were initiated in Crl.Misc.No.5/2004 to recover an amount of Rs.10,000/- and copy of order sheet at Annexure-C is produced.
3.5. It is also contended that a foul play was made by some persons and the petitioner rushed to the Court and deposited a sum of Rs.3,000/- in person on 19.03.2005 and took time to pay the balance amount and as he was under financial difficulties, he could not appear and make the balance payment and hence recovery proceedings was initiated by the Trial Court to issue attachment of land through the Deputy Commissioner and later Tahasildar, Bhadravathi had initiated the proceedings and property was sold in auction held at Tahasildar's Office on 25.11.2015 for a meager sum of Rs.6,50,000/- in favor of the respondent No.2 herein. -7-
NC: 2024:KHC-D:12476 WP No. 101826 of 2016 3.6. A copy of the letter dated 26.11.2015 written by the Addl. Deputy Commissioner, Shivamogga to Shirestedar of JMFC at Yalaburga intimating the auction sale and remitting a sum of Rs.7,000/- by way of DD is produced at Annexure-D and copy of the letter dated 27.11.2015 written by the Tahasildar, Bhadravathi to the Deputy Commissioner, Shivamogga, intimating the auction sale dated 27.11.2015 is produced as Annexure-E.
4. It is contended by the learned counsel for the petitioner that, the petitioner is the absolute owner of the property in question and produced mutation also as per Annexure-F and hence contended that the very initiation of proceedings and bringing the property for auction and selling the same is erroneous and bad in law and hence the impugned Annexure-E and Annexure-D are required to be quashed. It is also contended that, other prayer -8- NC: 2024:KHC-D:12476 WP No. 101826 of 2016 sought for issuing writ of mandamus directing respondent No.1 to hold enquiry in the matter also may be granted.
5. Per contra, learned AGA appearing for the respondents brought to the notice of this Court that, according to the petitioner, partition was taken place on 16.09.2004. The counsel also brought to the notice of this Court the certified copy of the order sheet and also brought to notice of this Court that this petitioner is having knowledge about his mother standing as aguarantee and he also made part payment of Rs.3,000/- before the Court and undertook to pay the balance amount, but he did not turn up and thereafter the proceedings were initiated to recover the balance amount. The counsel also brought to the notice of this Court that Annexure-D is the letter written by the Additional Deputy Commissioner to the concerned Court intimating initiation of process for bringing the property for sale. -9-
NC: 2024:KHC-D:12476 WP No. 101826 of 2016 The counsel also brought to the notice of this Court the letter addressed by the Tahasildar in favor of the Deputy Commissioner in terms of Annexure-E, intimating that the property was sold for Rs.6,50,000/- and Rs.7,000/- was paid towards the balance amount and also about different bail bonds executed in terms of Annexure-E for a total sum of Rs.70,000/- payable to the different Courts. It is also contended that, the petitioner is aware of all these proceedings and no action was taken. Even if any such impersonation is made in offering the surety, this Court cannot direct by issuing a mandamus to hold an enquiry and initiate action.
6. Learned counsel appearing to the respondent No.2 also contended that, he has already made the payment in terms of the auction and the question of quashing the same does not arise. The counsel also would contend that, even after making part payment in the year 2005 before the Court, in other cases
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NC: 2024:KHC-D:12476 WP No. 101826 of 2016 also she stood as guarantee on behalf of the accused in the years 2007, 2008 and 2012 and the petitioner also having knowledge about the same, now he cannot contend that there was an impersonation.
7. The learned AGA appearing for the respondent State also reiterates the submission of the counsel appearing for respondent No.2 about conducting of the auction in bringing the property for sale and auction was also conducted and amount was also paid.
8. Having heard the petitioner's counsel and also the counsel appearing for the respondents and also taking note of the factual aspects, the allegation in the petition is that, by an impersonation surety was offered before the Court, but no action was taken against the persons who have impersonated in offering the surety of the mother of the petitioner. The counsel appearing for the respondents also rightly brought to the notice of this Court that, part
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NC: 2024:KHC-D:12476 WP No. 101826 of 2016 payment was made by the petitioner when the bond executed by his mother was forfeited by the Court and even he undertaken to pay the balance amount, but he did not turn up. The petitioner was having knowledge about the forfeiture of the bond and no appeal is filed before the Court invoking Section 469 Cr.P.C. when the proceedings was initiated under Section 446 of Cr.P.C. Even the counsel for respondents also contended that, subsequent to the depositing of part payment in the year 2005, surety was offered in the year 2007, 2008 and 2012 also and knowing fully well about forfeiture of bond in the previous case, offered the sureties subsequently. The report of the Tahasildar is also very clear that the bonds are executed in other cases and details of bonds executed in different Courts are also stated in the letter in terms of Annexure-E.
9. When such being the case, the petitioner cannot plead ignorance. He allowed to initiate the
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NC: 2024:KHC-D:12476 WP No. 101826 of 2016 proceedings by the Tahasildar as well as the Deputy Commissioner, consequent upon the order passed by the Court. Even when the bail bond was forfeited and property was brought for sale, the petitioner kept quiet and only filed writ petition in the year 2016, when already proceedings are initiated and auction was also conducted and respondent No.2, who is the successive bidder made the payment. Now this Court cannot invoke the writ jurisdiction to quash the same, when the petitioner kept quiet for a longer period, having the knowledge in 2005 itself, when the proceedings were initiated and FLW was issued, consequent upon the FLW only property was brought for sale.
10. Hence I do not find any ground to quash Annexures 'D' and 'E' as sought by the petitioner. Further, considering the other prayer also to issue writ of mandamus for holding enquiry and initiating appropriate proceedings also does not arise. If really
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NC: 2024:KHC-D:12476 WP No. 101826 of 2016 it is the case of the petitioner that impersonation was made in the name of his mother, when he came to know about the same, he ought to have initiated proceedings against the persons who have impersonated in the name of the mother and the same has not been done. Hence in this writ petition this Court cannot pass such an order by issuing the writ of mandamus as sought. No grounds are made out for even for issuance of mandamus.
11. In view of the discussions made above, I pass the following:
ORDER Writ petition is dismissed.
Sd/-
(H.P.SANDESH) JUDGE gab CT-MCK List No.: 1 Sl No.: 42