Karnataka High Court
Sri Boregowda vs Rathnamma on 27 July, 2023
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2023:KHC:26255
WP No. 29564 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
WRIT PETITION NO.29564 OF 2016 (GM-CPC)
BETWEEN:
1. SRI. BOREGOWDA,
S/O LATE KALEGOWDA,
AGED ABOUT 56 YEARS,
DEAD BY HIS LRs
1(a) BALAKRISHNA B.,
AGED ABOUT 34 YEARS,
S/O LATE BORE GOWDA,
1(b) SMT. SUJATHA B.,
AGED ABOUT 30 YEARS,
W/O GANGADHARAIAH,
1(c) HANUMANTHARAJU B.,
AGED ABOUT 24 YEARS,
S/O LATE BORE GOWDA,
ALL ARE R/OF HOSAPALYA VILALGE,
KASABA HOBLI, MAGADI TALUK
RAMANAGARA DISTRICT - 562 102.
...PETITIONERS
[BY SRI. PRABHUGOUDA B. TUMBIGI, ADVOCATE (PH)]
Digitally signed by AND:
GURURAJ D
Location: High RATHNAMMA,
Court of Karnataka D/O CHAMMAIAH,
AGED ABOUT 40 YEARS,
R/AT AGALAKOTE HAND POST
KASABA HOBLI, MAGADI TALUK,
RAMANAGARA DISTRICT - 562 102.
...RESPONDENT
[BY SRI. A.V. GANAGADHARAPPA, ADVOCATE (PH)]
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
DATED 30.04.2016 PASSED IN CIVIL MISC.NO.30/2015 ON I.A.I BY
THE LEARNED PRL. CIVIL JUDGE AND JMFC AT MAGADI AT
ANNEXURE-A AND CONSEQUENTLY ALLOW THE PETITIONERS
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NC: 2023:KHC:26255
WP No. 29564 of 2016
I.A.NO.I FILED IN CIVIL MISC.NO.30/2015 FILED THEREIN
PRODUCED VIDE ANNEXURE-E AND ETC.,
THIS PETITION, COMING ON FOR DICTATING ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Challenging order dated 30.04.2016 passed by Prl. Civil Judge & JMFC., Magadi, on I.A.no.I, under Order XXI rule 89 of CPC, in Civil Misc.no.30/2015, this petition is filed.
2. Sri. Prabhugoud B Tumbigi, learned counsel for petitioner submitted that petitioner was respondent in Civil Misc. no.30/2015, wherein he had filed I.A.no.I under Order XXI rule 89 of CPC for setting aside sale in execution of decree passed in Ex.Petition no.20/2008. It was submitted that O.S.no.21/2002 filed by respondent herein - Smt.Rathnamma against Sri. Boregowda - petitioner herein was decreed on 23.09.2008 for monthly maintenance of Rs.1,000/- by creating charge on property. It was submitted that Ex.Petition no.20/2008 was filed on 22.11.2008 in which petitioner herein was judgment debtor. For non-payment of decretal amount, sale of immovable property of petitioner was ordered. It was submitted that though respondent had filed suit for maintenance on ground that she was unable to maintain herself, she purchased said property. Sale was confirmed on -3- NC: 2023:KHC:26255 WP No. 29564 of 2016 02.04.2014 and Ex. case was got closed on 02.11.2015 as decree satisfied.
3. Thereafter on 05.11.2015, respondent filed Misc.Petn. no.30/2015 under Order XXI Rule 95 of CPC for recovery of possession of property purchased. It was submitted that since respondent was seeking possession of property purchased in execution of decree, said application was required to be filed within one year from date when sale became absolute as per Article 134 of Limitation Act. It was submitted that sale was confirmed on 02.04.2014 and became absolute. Therefore, application filed under Order XXI rule 95 of CPC on 05.11.2015, beyond period of one year would be barred by limitation.
4. It was further submitted that total extent of property of petitioner identified was 02 acres 02 guntas, whereas amount sought to be recovered in Execution petition was only Rs.67,000/-, which could easily be recovered by selling a portion of petitioner's property. However, entire property was put to auction. It was submitted that there was no order passed for proceeding against movables and there was no bidding at spot which was in complete violation of provisions -4- NC: 2023:KHC:26255 WP No. 29564 of 2016 of Order XXI rule 54 of CPC. It was submitted that duty cast upon Executing Court to protect interests of Judgment Debtor were palpably ignored. And therefore, petitioner's application for setting aside sale was required to be allowed and rejection on wholly untenable ground which required interference.
5. In support of his submission learned counsel relied upon decision of Hon'ble Supreme Court in Balakrishnan Vs. Malaiyandi Konar, reported in 2006(3) SCC 49, to contend that application filed under Order XXI rule 95 of CPC beyond period of limitation under Article 134 of Limitation Act would be barred. He also relied upon decision of this Court in case of Geetha Bai & Ors. Vs. SBI & Ors. (CRP no.4051/1999, D.D. 20.11.2000) for proposition that duty is cast on Executing Court to sell only such property or portion thereof as is necessary to satisfy decree and said mandate cannot be ignored.
6. On other hand, Sri.A.V.Gangadharappa, learned counsel for respondent submitted that at time of passing decree, trial Court had created charge on property belonging to petitioner against decretal amount. Further, despite entering appearance in Execution Petition, petitioner did not file -5- NC: 2023:KHC:26255 WP No. 29564 of 2016 objections. It was submitted that auction was conducted on 28.05.2013 and sale was confirmed on 02.04.2014. Thereafter sale certificate was issued on 23.01.2015 and registered on 13.07.2015. Therefore, petition filed under Order XXI Rule 95 of CPC on 05.11.2015 would not be barred by limitation. It was submitted that application under Order XXI rule 89 of CPC on 04.01.2016 was filed in said petition, instead of in Execution Petition, which was highly belated and without any substance. Taking note of said aspect, trial Court rightly rejected application and ordered for issuance of delivery warrant. It was submitted that there was no dispute about respondent being wife of petitioner. Her suit filed for maintenance filed in year 2002 was decreed on 23.09.2008 holding that she was entitled to maintenance of Rs.1,000/- per month. Instead of complying with decree, petitioner subjected her to hardship by dragging on proceedings for more than a decade. Ultimately, when she succeeded in purchasing property after obtaining permission of Court and sought for possession to earn livelihood from said land, instant writ petition was filed on wholly untenable grounds and sought for dismissal.
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7. Heard learned counsel and perused writ petition record.
8. From above submission, there is no dispute about suit for maintenance filed by respondent having been decreed against petitioner herein. There is also no dispute about said decree being put into execution and property bearing Sy.no.204/2A, measuring 02 acres 02 guntas of Kalarikavala Village, Kasaba Hobli, Magadi Taluk, being put to auction. On perusal of order-sheet at Annexure-C, it is seen that Executing Court had initially ordered for attachment of movable property. On said step being unfruitful, attachment of immovable property was ordered, wherein petitioner identified above mentioned property. Since decree had created a charge on property of petitioner, said property was put to auction. However, due to lack of bidders, auction was not successful and ultimately respondent filed application before Executing Court for permitting her to participate in auction. Upon grant of such permission, respondent participated in bid and purchased property. Sale was held on 28.05.2013 and confirmed on 02.04.2014. Sale Certificate was issued and 23.01.2015, thereafter, same was registered on 13.07.2015. Miscellaneous -7- NC: 2023:KHC:26255 WP No. 29564 of 2016 petition under Order XXI Rule 95 of CPC was filed on 05.11.2015. In said petition, I.A.no.I filed under Order XXI Rule 89 of CPC was filed by petitioner on 04.01.2016. Prior to confirmation of sale, no application were filed under Order XXI Rule 89, 90 or 91 of CPC.
9. Consequently, sale became absolute upon order of confirmation on 02.04.2014. Though, Order XXI Rule 95 of CPC, enables purchaser of property sold in execution to seek for delivery of possession after confirmation of sale and "issuance of certificate", period of limitation for filing such application is prescribed by Article 134 of Limitation Act, as one year from date when sale becomes absolute. It is contended that since sale certificate was issued only on 23.01.2015 and therefore, Miscellaneous Petition filed on 05.11.2015 would be within period of one year.
10. Besides point of limitation, petitioner is also challenging order passed on I.A.no.I under Order XXI Rule 89 of CPC, on ground that Executing Court failed in its duty mandated under Order XXI Rule 64 of CPC. Insofar as starting point of limitation for filing application under Order XXI Rule 95 of CPC, Hon'ble Supreme Court in case of Balakrishnan v/s -8- NC: 2023:KHC:26255 WP No. 29564 of 2016 Malaiyandi Konar, reported in (2006) 3 SCC 49 and in Sai Enterprises v/s Bhimreddy Laxmaiah and Anr., reported in (2007) 13 SCC 576, have held that despite contention regarding duty cost on Executing Court under Order XXI Rule 64 of CPC not having been complied, preliminary question would be whether application filed under Order XXI Rule 95 of CPC, would be within period of limitation prescribed under Article 134.
11. It is held in Balakrishnana's case (supra), that Order XXI Rule 95 of CPC, provides for a quick remedy and on failure of auction purchaser to avail quick remedy, within period of limitation, he would be relegated to file such suit application for possession subject to period of limitation prescribed there. It is also held that referring to it's earlier decision that limitation starts from date of confirmation and not from date when sale certificate is issued, by noting that there may be various reasons for delay in issuance of certificate. Since sale certificate is admittedly issued and sale was confirmed on 02.04.2014, Miscellaneous petition was filed on 05.11.2015 beyond period of one year, application under Order XXI Rule 95 -9- NC: 2023:KHC:26255 WP No. 29564 of 2016 of CPC would be barred by time. Consequently, impugned order directing delivery of possession would be unsustainable.
12. Hence, writ petition is allowed, impugned order dated 30.04.2016 passed by Principal Civil Judge and JMFC., Magadi, on I.A.no.I, in Civil Misc.no.30/2015 at Annexure-A is set aside.
Sd/-
JUDGE psg/GRD