Karnataka High Court
H M Vasantha Mohan Shetty vs Syndicate Bank Manipal on 24 February, 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO. 1579 OF 2014(PAR)
BETWEEN:
1. H M VASANTHA MOHAN SHETTY
AGED ABOUT 58 YEARS,
S/O LATE MUDDANA SHETTY & NEERADH HEGGADTHI
2. SMT.SHARIN
AGED 31 YEARS,
D/O H.M. VASANTHA MOHAN SHETTY
3. SACHIN
AGED 28 YEARS,
S/O H.M. VASANTHA MOHAN SHETTY
4. SAHANA
AGED 26 YEARS,
D/O H.M. VASANTHA MOHAN SHETTY
5. H ASHOK MOHAN SHETTY
AGED 51 YEARS,
S/O LATE MUDDANA SHETTY &
NEERADH HEGGADTHI
6. H.M. CHANDRA MOHAN SHETTY
AGED ABOUT 49 YEARS,
S/O LATE MUDDANA SHETTY &
NEERADH HEGGADTHI
ALL ARE R/AT PALAJE HOUSE, PERDOOR VILLAGE,
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POST PERDOOR, UDUPI TALUK,
UDUPI DISTRICT-576124
...APPELLANTS
(BY SRI.SHARATH S GOWDA, ADVOCATE)
AND:
SYNDICATE BANK MANIPAL
HAVING ITS HEAD OFFICE AT MANIPAL,
REPRESENTED BY ITS PERDOOR BRANCH
SENIOR MANAGER AND GPA HOLDER
DEVENDRA NAIK,
AGED ABOUT 49 YEARS,
RESIDING AT PERDOOR VILLAGE,
UDUPI TALUK, UDUPI DISTRICT-576124
...RESPONDENT
(BY SRI.DEEPAK.K.DAVE, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 13.8.2014 PASSED IN R.A.NO.4/2008
ON THE FILE OF THE PRL. DISTRICT JUDGE, UDUPI, DISMISSING
THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DTD
30.11.2007 PASSED IN OS.NO.31/2007 ON THE FILE OF THE PRL.
CIVIL JUDGE (SR.DN) UDUPI.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.02.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The captioned second appeal is filed by unsuccessful defendants who have questioned the concurrent findings of the Courts below wherein suit for partition filed by plaintiff- Bank based on a money decree and consequent, auction purchase by the Bank is decreed by both the Courts. The defendant is in second appeal.
2. For the sake of brevity, the parties are referred to as per their rank before the trial Court.
3. The plaintiff-Bank has instituted the present suit seeking relief of partition by metes and bounds to allot 3/4th share. The plaintiff-Bank has filed the present suit by contending that suit schedule properties along with other properties are ancestral properties of defendants family. The defendant Nos.2 to 4 are the children of defendant No.1. The defendant Nos.1, 5 and 6 and another availed loan from the plaintiff-Bank and offered the suit property by way of security. 4 On account of default, plaintiff instituted suit in O.S.No.107/1979 and the said suit was decreed and plaintiff filed execution petition bringing in sale of properties which were offered as security. The plaintiff-Bank being a decree holder participated in auction proceedings and purchased the properties which were put in auction and the sale was confirmed and sale certificate was issued on 17.01.1995. Since plaintiff-Bank purchased undivided interest in schedule 'A' property and since the defendants who are defaulters failed to divide the properties and handover possession of 3/4th share in schedule 'A' property, present suit is filed.
4. The defendants, on receipt of summons, tendered appearance and filed written statement and contended that claim of plaintiff is barred by limitation. The defendants also contended that sale certificate is null and void and there is no cause of action to file the present suit.
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5. The plaintiff-Bank and defendants to substantiate their respective claim have let in oral and documentary evidence.
6. The trial Court while examining the sale certificate vide Ex.P-15 held that the plaintiff is entitled to seek possession of 3/4th share and accordingly proceeded to decree the suit drawing preliminary decree and granting 3/4th share to the plaintiff-Bank.
7. Feeling aggrieved by the judgment and decree of the trial Court, the defendants preferred appeal before the Appellate Court. The defendants raised several objections before the Appellate Court. Additional grounds were urged in the appeal memo by contending that plaintiff-Bank being a non-agriculturist cannot purchase agricultural lands and the same is hit by Sections 79-A, 79-B and 80 of the Karnataka Land Reforms Act, 1961.
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8. The Appellate Court being final fact finding authority has independently assessed the material on record. On independent appraisal, Appellate Court was also of the view that Bank having purchased an undivided interest is entitled to workout its remedy by filing a suit for general partition. The Appellate Court has placed reliance on the dictum laid down by the Hon'ble Apex Court in the case of Smt. Kailash Pati Devi vs. Smt. Bhubneshwari Devi and Others reported in 1985 (1) SCC 405. On re-assessment of the entire material on record independently, Appellate Court has also come to conclusion that plaintiff-Bank is entitled to get 3/4th share of undivided interest held by the borrowers by initiating a suit for general partition. The Appellate Court by concurring with the reasons and conclusions recorded by the trial Court proceeded to dismiss the appeal.
9. These concurrent findings are under challenge at the instance of the defendants.
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10. Learned counsel appearing for the defendants would vehemently argue and contend that plaintiff-Bank could not have maintained a partition suit. The plaintiff-Bank ought to have exhausted remedy available to it under Rule 95 Order 21 of CPC. Referring to Rule 95 Order 21 of CPC, he would contend that plaintiff -Bank is entitled to take possession only under Rule 95 and not by filing a partition suit and the said application was required to be filed within a period of limitation. Therefore, he would contend that since plaintiff- Bank has not proceeded in compliance with the provisions of Order 21 Rule 95, the present suit itself was not maintainable though a certificate is issued under Order 21 Rule 94 of CPC.
11. The second limb of argument is that auction purchaser could have worked out his rights based on a sale certificate under Section 47 of CPC. Referring to Section 47, he would contend that purchaser of a property at sale in execution of a decree is in fact deemed to be a party to the suit and all questions relating to delivery of possession of said 8 property are to be adjudicated under Section 47 of CPC. Therefore, he would contend that the controversy in regard to delivery of possession to an auction purchaser has to be determined by the Executing Court and not by filing a suit for partition. Therefore, he would contend that the present suit is squarely barred by Section 47 of CPC and therefore, suit is not maintainable.
12. Pressing in Article 134 of Limitation Act, he would contend that present plaintiff being an auction purchaser ought to have moved an application under Order 21 Rule 95 within one year from the date on which sale became absolute. This effective remedy is not availed by the plaintiff-Bank and therefore, present suit could not have been entertained as per Article 134 of Limitation Act.
13. Learned counsel appearing for the defendants to buttress his arguments has placed reliance on the judgment rendered by the Andhra Pradesh High Court rendered in the 9 case of Vegendla Subba Rao vs. Puvvada Srinivasa Rao and Others1. Placing reliance on the said judgment, he would contend that the present suit is not maintainable and would contend that under Section 47 of CPC, an auction purchaser cannot maintain a suit. While arguing on limitation, he has also placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Ganpat Singh (Dead) by Lrs. vs. Kailash Shankar and Others2 and has contended that auction purchaser has to seek delivery of possession of the property within the period stipulated under Article 134 and not under Article 136. He would further contend that position has not changed by insertion of Explanation II to Section 47 of CPC by 1976 amendment. Therefore, he would contend that suit itself was not maintainable.
14. The short point that needs consideration at the hands of this Court is as to whether plaintiff who is the auction purchaser of an undivided interest has to avail remedy under 1 2005 SCC Online AP 518 2 (1987) 3 SCC 146 10 Order 21 Rule 95 of CPC or on account of purchase of undivided interest which is undefined and indeterminate, has to seek redressal of his rights before competent civil Court by filing a suit for general partition.
15. The controversy surrounding the rights of an auction purchaser of an undivided interest is dealt with by the Division Bench of Kerala High Court. The Division Bench of Kerala High Court placing reliance on the judgment rendered by the Hon'ble Apex Court in the case of Jagdish Dutt and Another vs. Dharam Pal and Others3, was of the view that undivided share in an immovable property when sold in court auction, the auction purchaser or anybody claiming under him, though entitled to apply for a symbolic delivery under Order 21 Rule 96, can very well institute a suit for partition. The Division Bench of the Kerala High Court was of the view that proper remedy for a purchaser of an undivided share is only to institute suit for partition and separate possession. Similar 3 (1999) 3 SCC 644 11 view was also expressed by Madras High Court in the case of K.S.K.P. Subbayan Chettiar vs. K.Ramu and Others4.
16. Heard learned counsel appearing for the defendants and learned counsel appearing for the plaintiff. I have gone through the principles laid down by the Division Bench of the Kerala High Court and the judgment rendered by the Madras High Court in the judgment cited supra.
17. The question to be decided in each case is "what did the Court intend to sell and what did the purchaser intent that he got". Admittedly, in the present case on hand, the suit schedule properties are joint family ancestral properties. Therefore, what passed by the sale is a question of law and fact and it depends upon facts and circumstances of each case. When an auction purchaser based on a money decree against a member of a Hindu family participated in an auction and purchased an undivided share, what a purchaser buys is only an uncertain and fluctuating interest with the right of 4 1996-2-L.W.73 12 converting it at any moment after the purchase, by partition into definite property. Therefore, rights of non-alienating co- parcener or joint family members and a right of auction purchaser or an alienee cannot be the subject matter of adjudication under Section 47 of CPC. An auction purchaser or alienee cannot ask the Executing Court under Section 47 to grant him equitable relief by allotting the property purchased by him. Such a recourse is available to him in a suit for general partition. In a suit for partition, the purchaser can ask the Court to grant him equitable relief by allotting property purchased by him or as much as it is possible to the share of judgment debtor so far as it can be done without prejudice to the rights of non-alienating co-parcener.
18. Therefore, the contention of learned counsel appearing for the defendants that plaintiff-Bank ought to have worked out its right under Section 47 is totally misconceived. Under Order 21 Rule 95, no limit is prescribed to enable the auction purchaser to get possession of the property. However, 13 there is no reference in the Rule that failure to resort to recover possession, will deprive the decree holder to recover possession of property by any other mode viz. suit for declaration of title and for recovery of possession or a suit for general partition. An auction purchaser is at liberty to avail both remedies i.e., by filing an application under Order 21 Rule 95, if the property is the subject matter of auction is found to be definite and certain. In fact he can simultaneously seek remedies under order 21 Rule 95 or by a separate suit or by resorting to both.
19. In the present case on hand, plaintiff-Bank could not have availed remedy under Order 21 Rule 95. It was equally not competent for the Executing Court on a mere application by the plaintiff-Bank of an undivided share to pass an order directing delivery of possession because there could be no delivery either actual or symbolical in pursuance of such a sale is based on principles of community of interest and unity of possession. Consent of co-parceners is an innate part 14 of Hindu joint family property. Each co-parcener has inherent title to the joint family property and all co-parceners together own whole property. It is only on partition, share of all joint family members gets defined and stops fluctuating further. It is only after exclusive allotment of share, it can be treated as absolute property of an individual and stranger purchaser or auction purchaser can seek appropriate remedy only after exclusive possession is delivered pursuant to partition.
20. Therefore, in the light of the principles discussed supra, the defendants claim that the present suit is not maintainable cannot be acceded to. A person who purchases an undivided share in an ancestral property cannot claim to be put in possession of indefinite piece of any family property unless there is a partition by metes and bounds which can be only ascertained and adjudicated in a final decree proceedings. The transferee or an auction purchaser of an undivided interest has to work out his equity only in a final decree proceedings. It is trite law that alienee or an auction 15 purchaser of an undivided interest has to file a suit for partition and such a suit for partition must be one for partition of the entire property and when such a suit is brought by alienee or an auction purchaser, it may not necessarily bring upon joint ownership of members of the family in the remaining property nor the corporate character of the family.
21. In the light of the observations made supra, this Court is of the view that the suit filed by the plaintiff-Bank seeking partition was very much maintainable.
22. No substantial question of law arises for consideration. Accordingly, appeal is dismissed by imposing cost of Rs.50,000/- on the defendants payable to the plaintiff- Bank.
Sd/-
JUDGE CA