Karnataka High Court
Smt. Rajeevi vs Smt. Sharada on 2 June, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.8178 OF 2022 (GM-CPC)
BETWEEN:
SMT. RAJEEVI @ RAJIVI
D/O. LATE KALYANI
AGED ABOUT 72 YEARS
R/AT KALPANE
KULSHEKAR
MANGALURU-575 005.
...PETITIONER
(BY SRI.ABISHEK MARLA M.J., ADVOCATE)
AND
1. SMT. SHARADA
D/O. LATE KALYANI
MAJOR
R/AT PADIL
MANGALURU-575 007.
2. SMT. LAXMI
D/O. LATE CHANDRAVATHI
MAJOR
R/AT KUJUMBRA KODI
POLALI POST
KARIANGALA VILLAGE
BANTWALA TALUK-574 212
2
3. SMT. PREMA
D/O LATE CHANDRAVATHI
MAJOR
R/AT KUJUMBRA KODI
POLALI POST
KARIANGALA VILLAGE
BANTWALA TALUK-574 212
4. SMT. VAISHNAVI
D/O. LATE CHANDRAVATHI
MAJOR
R/AT KUJUMBRA KODI
POLALI POST
KARIANGALA VILLAGE
BANTWALA TALUK-574 212
5. SMT. MAMATHA
D/O. LATE SUSHEELA
MAJOR
R/AT KUJUMBRA KODI
POLALI POST
KARIANGALA VILLAGE
BANTWALA TALUK-574 219.
6. SRI. ASHOKA
S/O. LATE SUSHEELA
MAJOR
R/AT KUJUMBRA KODI
POLALI POST
KARIANGALA VILLAGE
BANTWALA TALUK-574 219.
7. SMT. AMRUTHA
D/O. LATE SUSHEELA
MAJOR
R/AT KUJUMBRA KODI
POLALI POST
KARIANGALA VILLAGE
BANTWALA TALUK-574 219.
3
8. SMT. SHASHIKALA
D/O. LATE SUSHEELA
MAJOR
R/AT KUJUMBRA KODI
POLALI POST
KARIANGALA VILLAGE
BANTWALA TALUK-574 219
9. HARINAKSHI
AGED ABOUT 70 YEARS
W/O. NARASIMHA NAYAK
R/AT KANYANA
MITHINADKA MANE
KAROPPADI POST AND VILLAGE
BANTWAL TALUK-574 215.
10. PREMAVATHI NAYAK
AGED ABOUT 66 YEARS
W/O. LATE ANAND NAYAK
R/AT TANTRI BAIL MANE
VARKADI POST AND VILLAGE
KASARAGOD
MANJESHWARA TALUK-671 323.
11. GOPALAKRISHNA
AGED ABOUT 60 YEARS
R/AT KODIMANE
KODI BEACH ROAD
HANGLURU POST AND VILLAGE
KUNDAPURA-576 217
12. KAMALAKSHA
AGED ABOUT 55 YEARS
R/AT MULOOR MANE
BALEPUNI POST AND VILLAGE
BANTWAL TALUK-574 153.
13. SHANTHA NAYAK
AGED ABOUT 54 YEARS
4
W/O. MOHAN NAYAK
R/AT MUNDOLI HOUSE
NEAR BHAJANA MANDIRA
RAJARAJESHWARI, KUTHAR
SOMESHWAR POST AND VILLAGE
MANGALURU TALUK-575 022
14. USHA NAYAK
AGED ABOUT 50 YEARS
W/O. LATE KRISHNA NAYAK
R/AT SHRI. RAMA KRIPA
KAKKEBETTU, KULSHEKAR
MANGALURU-575 007
15. VASTSALA NAYAK
AGED ABOUT 47 YEARS
W/O ANAND NAYAK
R/AT SHEDIKAVU MANE
KUMBLE POST AND VILLAGE
KASARAGOD-671 321.
16. SHANTHARAM NAYAK
AGED ABOUT 46 YEARS
R/AT AGARIMARU HOUSE
PAJEERU VILLAGE AND POST
BANTWAL TALUK-574 211.
17. UMESH NAYAK
AGED ABOUT 45 YEARS
R/AT SHRI MAHAMAYI KRIPA
MULOOR HOUSE
BALEPUNI POST
BANTWAL TALUK-574 153.
18. SRI. DAYANANDA
S/O. LATE LAXMI
R/AT KANKANADY
MANGALURU-575 002
5
19. VATSALA NAYAK
AGED ABOUT 64 YEARS
R/AT AREKERE BAIL
NEAR AMBAMAHESHWARI BHAJANA MANDIR
JEPPU, MANGALURU-575 002.
20. APOORVA
AGED ABOUT 18 YEARS
D/O. LATE SATISH KUMAR
R/AT PRASHANTH BHAGH
1ST CROSS, ALAPE PADIL
MANGALURU-575 007.
21. HARISH
AGED ABOUT 56 YEARS
R/AT PRASHANTH BHAGH
1ST CROSS, ALAPE PADIL
MANGALURU-575 007
22. SUREKSHA
AGED ABOUT 50 YEARS
R/AT D. NO. 22/2/194
'SHIV BIN' HANUMAN COMPOUND
JEPPU MARKET
MANGALURU--575 001.
23. MR. NARENDRANATH NAYAK
AGED ABOUT 45 YEARS
R/AT NO.206, JESWIN APT.,
4TH CROSS, BEJAI NEW ROAD
MANGALURU-575 003.
24. ANANYA
AGED ABOUT 5 YEARS
R/AT NO.206, JESWIN APT.,
4TH CROSS, BEJAI NEW ROAD
MANGALORE-575 003,
MINOR,
REPRESENTED BY HER
6
FATHER AND NATURAL GUARDIAN
MR. NARENDRANATH NAYAK.
25. DR. VIDHYA GOWRI
W/O. DR. SHREE HARI
AGED ABOUT 42 YEARS
R/AT INDRA NEELA
JAIN PETE, BELTHANGADY
BELTHANGADY TALUK
D.K. DISTRICT-574 214.
.....RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 21.01.2022 PASSED BY THE
I ADDITIONAL SENIOR CIVIL JUDGE AND CJM,
MANGALURU, D.K IN MISCELLANEOUS APPEAL
NO.61/2017 (ANNX-A) AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the petitioner before the FDP Court questioning the order dated 20.04.2017 of the FDP Court passed on I.A.No.7 and also order dated 21.01.2022 of the Appellate Court confirming the order passed on I.A.No.7. 7
2. The petitioner has filed an application under Order 21 Rule 90 read with Section 151 of CPC., requesting the Court to set-aside the sale deed dated 15.11.2016 by contending that the property is sold at lesser price. The petitioner at para No.5 of the affidavit filed in support of the application claimed that the suit property is commercial property and its actual market value is more than Rs.8,00,000/- per cent. He has further contended that even the notified value for registration of land is more than Rs.5.40 lakh and hence, the entire process of sale is tainted with fraud, collusive and connivance with his advocate and the Auction Purchaser. On these set of grounds, the application is filed. The said application was resisted by the Auction Purchaser. The Auction Purchaser contended that the petitioner has not made out any grounds to set-aside the auction. The Auction Purchaser stoutly denied the alleged market value as 8 stated in the application. The Auction Purchaser has also contended that the application is tainted with malafide and the same is filed to deny the legitimate right of the Auction Purchaser.
3. The FDP Court having heard the rival contentions found that the present application is hit by Article 127 of the Limitation Act, 1963. The FDP Court was of the view that sale was concluded on 15.07.2016 and the present application is filed in I.A.No.7 on 03.02.2017. Therefore, FDP Court was of the view that after expiry of period of limitation, the application in I.A.No.7 was filed.
4. The main grievance of the petitioner before the FDP Court was that a fair price is not secured while auctioning the property in question. The FDP Court, while allowing the application, however, reserved liberty to the petitioner and other shares to 9 secure prospective buyers subject to depositing of Rs.78,00,000/- with interest on or before 09.06.2017. Feeling aggrieved by the said order, the petitioner- plaintiff preferred an appeal before the Lower Appellate Court. The Lower Appellate Court has exhaustively dealt with the claim made by the petitioner - plaintiff. The Appellate Court having verified the order under challenge and records was of the view that mere inadequacy of price cannot be a ground to set-aside the sale deed dated 15.07.2016. If really the Commissioner had failed to secure a better fair price, the FDP Court had in fact granted an opportunity to the petitioner to secure prospective purchasers. The Appellate Court having taken judicial note of the fact that the suit is of the year 1984 and more than 40 years have lapsed and respondent Nos.2 to 8 having secured a preliminary decree are made to litigate for almost four decades was also not 10 inclined to interfere with the order under challenge. It is against these concurrent orders, the captioned writ petition is filed.
5. Heard learned counsel appearing for the petitioner. Perused the grounds urged in the petition. I have also given my anxious consideration to the orders passed by the Courts below. On bare perusal of the affidavit filed in support of I.A.No.7, this Court would find that the main grievance of the petitioner is that the Commissioner, while conducting auction, has not made attempt to secure a fair price to the suit schedule property. Except bald allegations in the affidavit filed in support of I.A.No.7, he has not produced any documents indicating the actual price of the suit schedule property.
6. Be that as it may, the parties are litigating since 1984. Based on the preliminary decree, the 11 Court was compelled to sell the suit schedule property as it was found that the suit schedule property is not partable and therefore, the FDP Court left with no other option decided to put the suit schedule property in auction. There are absolutely no specific averments to indicate that as to what are the material irregularities in conducting the sale auction. No materials are also placed. The only grievance is that the Commissioner has not secured a best fair price. Even to substantiate the said claim, no materials are placed on record.
7. Petitioner has not stated as to how his interest is affected by sale. The requisite pleadings relating to fraud or material irregularity are not found. It is more than trite that provisions of Order 6 Rule 4 and Order 7 Rule 6 of CPC., are equally applicable to an application made for setting aside sale under Order 21 Rule 90 of CPC., Court will interfere only when 12 substantial injury is implicit in the material irregularity set out in the application. Petitioner has not only failed to prove irregularity or fraud but has also failed to prove that he has sustained substantial injury.
8. Both the Courts have concurrently held that the auction sale is in accordance with law and would not warrant any interference. The Appellate Court, in fact, has dealt exhaustively and has taken a judicial note of the fact that the petitioner was in fact given an option to secure prospective buyers. Both the Courts have concurrently held that the application filed in I.A.No.7 is hit by Article 127 and therefore, no reliefs can be granted as the application seeking set-aside the sale is barred by limitation. I do not find any infirmities in the concurrent orders passed by the Courts below. The Judgment cited by the learned counsel appearing for the petitioner is not at all applicable to the present case on hand. 13
Therefore, the writ petition is dismissed as devoid of merits.
Sd/-
JUDGE NBM