Karnataka High Court
Sri Revanna S/O Chikkiregowda vs Smt Sannamalligamma on 26 July, 2012
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE RAM MOHAN REDDY
MSA No.199/2011(REM)
BETWEEN :
1 SRI REVANNA S/O CHIKKIREGOWDA
S/O CHIKKIREGOWDA
AGED ABOUT 45 YEARS,
2 SRI BALARAMEGOWDA
S/O NAGEGOWDA
AGED 40 YEARS
BOTH ARE RESIDENTS OF
MARAGOWDANAHALLY,
HEBBAL HOBLI,
K.R.NAGAR TALUK,
MYSORE DISTRICT-570008.
...APPELLANTS
(BY SRI PRAKASH M PATIL, ADV.,)
AND :
SMT SANNAMALLIGAMMA
W/O LATE BASAPPA @ SHIVANNA
AGED ABOUT 68 YEARS,
R/A KARTHAL,
CHUNCHANAKATTE HOBLI,
K.R.NAGAR TALUK,
2
MYSORE DISTRICT-570008.
...RESPONDENT
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF THE
CPC AGAINST THE JUDGMENT AND DECREE DATED 6.8.2011
PASSED IN MA.NO.47/2010 ON THE FILE OF THE I ADDL.
DISTRICT JUDGE, MYSORE, ALLOWING THE APPEAL SETTING
ASIDE THE JUDGMENT AND DECREE DATED 1.9.2010 PASSED IN
EXN NO.52/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND
JMFC, K.R.NAGAR, MATTER IS PENDING BACK TO THE
EXECUTING COURT FOR FRESH DISPOSAL AND ETC.,
THIS MSA COMING ON FOR ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The decree holder and the auction purchaser have jointly presented this second appeal, aggrieved by the order dated 6.8.2011, in M.A.No.47/2010, of the I Additional District Judge, Mysore, setting aside the order dated 1.9.2010, on I.A.NO.3, in Execution Petition No.52/2007, on the file of the Senior Civil Judge, JMFC, K.R.Nagar.
2. The 1st appellant instituted O.S.NO.240/2004 for a money decree, which when allowed by judgment and decree and put into execution in Ex.No.49/2006, was transferred to another Court and 3 renumbered as Execution No.52/2007. The appellant sought court sale of 5 items of agricultural lands described in the schedule to the execution petition, belonging to the judgment debtor-respondent. The Executing Court fixed 19.3.2008 for spot sale and 26.3.2008 for court sale, whence the 3rd respondent's offer of Rs.1,33,000/- at spot sale was accepted by the Executing Court on 23.6.2008, as there was no counter offer. The respondent filed I.A.No.3 under Order 21 Rule 91 CPC, while another Sri Mallesh filed I.A.NO.4 under Order 21 Rule 90 CPC. The Executing Court by order dated 1.9.2010 dismissed I.A.NO.3 and allowed I.A.NO.4.
3. The Lower Appellate Court before whom respondent preferred M.A.No.47/2010 having secured the records, and examined the order of the Executing Court, observed that the cause notices issued to the judgment debtors, was served only on the 2nd judgment debtor, none other than the son of the 1st Judgment Debtor-respondent herein, based upon which, the Executing Court held sufficiency of service on 1st judgment debtor. The sale notices issued to the 4 judgment debtors, however, was served only on the 2nd judgment debtor. The Lower Appellate Court noticed the assertion of the appellant therein (respondent herein) that she was thrown out of her matrimonial home at Maragowdanahalli by the 2nd judgment debtor and his wife some 7 years ago, and was not residing at that address, but at Karthal of Chunchanakatte Hobli, K.R.Nagar Taluk, in the house of her 2nd daughter. In the absence of an enquiry over whether the judgment debtor No.1 was or not residing at the address shown in the cause title or was residing at another address, the Lower Appellate Court observed that there was an error apparent on the face of the record and declined to accept the endorsement of the process server that the 1st Judgment Debtor was residing along with 2nd Judgment Debtor at the very address. The Lower Appellate Court further observed that in the light of Order 21 Rule 66(1) of CPC, the sale proclamation when not issued in Kannada the language of the court, but issued in English language, was perversity of proceedure, following the dictum of this Court in Manjamma Vs. Suryanarayana Rao1 . One other observation is non-compliance 1 ILR 1986 KAR 912 5 with the 2nd proviso to Order 21 rule 66(2) of CPC in not furnishing the estimated value of the property subject matter of sale, given by the decree holder. Yet another defect in the sale proclamation was violation of Order 21 Rule 64 of CPC in not assessing as to whether all items of the property mentioned in the schedule to the execution petition were necessary to be brought for auction sale, to discharge the decreetal amount. The Lower Appellate Court followed the decision of the Apex Court in Takkasheelapedda Subbareddy Vs. Poojari Padmavathamma2 , which was later on followed by the Apex Court in Ambati Narasayya Vs. M.Subbarao3 observing that care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition and that the sale held without examining that aspect of the matter was not in conformity with Order 21 Rule 64 of CPC must be held to be illegal and without jurisdiction. The Lower Appellate Court followed the subsequent opinions of the Apex Court in Balakrishna Vs. Malaiyandi Konar4 and a host of decisions 2 AIR 1977 SC 1789 3 AIR 1990 SC 119 4 AIR 2006 SC 1458 6 of this Court following the said dictum of the Apex Court to conclude that there was material irregularity in the issue of the sale notice. Another defect that vitiated the entire proceeding was that the property fall within the municipal area of K.R.Nagara and in the absence of compliance with Order 21 Rule 54 (2) of CPC and the Karnataka amendment requiring the publication of the sale notification to be made in the office of the Municipality or local authority as also the absence of intrinsic material to establish such a notification having been caused by the process server, held that the sale proclamation was vitiated. For the said reasons and for other reasons, the Lower Appellate Court returned findings on the points for consideration, and allowed the appeal, set aside the order dated 1.9.2010 as well as the sale of the properties and remitted the proceeding to the Executing Court for a fresh consideration.
4. Although, learned counsel for the appellants seeks to sustain the order of the Executing Court as being well merited, fully justified and not calling for interference by the Lower Appellate Court, in the 7 light of the reasons, findings and conclusions of fact arrived at by the Lower Appellate Court in the order impugned, there is no merit in the submissions .
In the circumstances, as no substantial question of law arises for decision making, the appeal is accordingly dismissed.
Sd/-
JUDGE PB