Karnataka High Court
Mrs Uma Suresh vs State Of Karnataka on 22 September, 2023
Bench: Chief Justice, Krishna S Dixit
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NC: 2023:KHC:34353-DB
WA No. 906 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT APPEAL NO. 906 OF 2023 (GM-RES)
BETWEEN:
1. MRS. UMA SURESH,
W/O SURESH G,
AGED ABOUT 65 YEARS,
R/O #212, 5TH MAIN, 10TH CROSS,
NGEF LAYOUT, NAGARABHAVI,
BANGALORE -560 072.
2. MR SURESH G
S/O LATE GANESH NAIG,
AGED ABOUT 68 YEARS,
R/O #212, 5TH MAIN, 10TH CROSS,
NGEF LAYOUT, NAGARABHAVI,
Digitally signed
by SHARADA BANGALORE -560 072.
VANI B
Location: HIGH ...APPELLANTS
COURT OF
KARNATAKA
(BY SRI. JAYAKUMAR S PATIL., SENIOR ADVOCATE FOR
SMT. SHALINI A. HASINAL.,ADVOCATE)
AND:
1. STATE OF KARNATAKA,
DEPARTMENT OF LAND REVENUE,
VIDHANA SOUDHA,
BANGALORE -560 001.
REPRESENTED BY ITS SECRETARY.
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NC: 2023:KHC:34353-DB
WA No. 906 of 2023
2. THE DEPUTY COMMISSIONER
BENGALURU DISTRICT,
KANDAYA BHAVAN, K G ROAD,
BENGALURU - 560 009.
3. DEPUTY THASILDAR,
BENGALURU SOUTH TALUK,
KHANDAYA BHAVAN , 4TH FLOOR,
K G ROAD,
BANGALURU -560 009.
4. MANIRAMA MURTHY,
AGED ABOUT MAJOR,
FATHER NAME NOT KNOWN,
R/O # 249, 2ND A MAIN, 2ND BLOCK,
4TH STAGE, VINAYAKA LAYOUT,
NAGARABHAVI, BANGALORE -560 072.
...RESPONDENTS
(BY SMT.NILOUFER AKBAR., ADDL GOVERNMENT ADVOCATE
FOR R1 TO R3;
SRI. MANIRAMA MURTHY., RESPONDENT FOR
R4-IN- PERSON)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961 PRAYING TO ALLOW THE
WRIT APPEAL AND SET ASIDE THE ORDER OF THE LEARNED
SINGLE JUDGE DATED 28.06.2023 IN WP No.18116/2022 (GM-
RES) AND ii) CONSEQUENTLY GRANT THE PRAYERS AS PRAYED
FOR IN THE WRIT PETITION IN FAVOUR OF THE APPELLANTS.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
CHIEF JUSTICE DELIVERED THE FOLLOWING:
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NC: 2023:KHC:34353-DB
WA No. 906 of 2023
JUDGMENT
This intra court appeal seeks to call in question a learned Single Judge's order dated 28.06.2023 whereby appellants W.P.No.18116/2022 has been negatived. In the said petition they had laid a challenge to the Endorsement dated 24.08.2022 issued by the Respondent- Tahsildar whereby the subject property was scheduled to be auctioned interalia for recovering Rs.2,53,500/- payable to the 4th Respondent-Munirama Murthy. They had also sought for a Writ of Mandamus presumably to Respondent Nos. 2 & 3 to consider their representations dated 14.07.2021, 10.12.2021, 29.06.2022 & 01.09.2022 to the effect that their case in Execution should be taken up along with that of the 4th Respondent in respect of the very same property so that the sale proceeds can be apportioned on the doctrine of rateable distribution. However as already said, their petition was not favoured.
2. Learned Sr. Advocate appearing for the petitioners submits that: The appellants having secured several -4- NC: 2023:KHC:34353-DB WA No. 906 of 2023 orders passed in their Consumer Complaints had put the same in Execution; similarly, the 4th Respondent herein too having secured an order for compensation at the hands of the same Consumer Forum had put the same in Execution, seeking auctioning of the very same property; where there are multiple decreetal debts sought to be recovered from the same Judgment Debtors by proceeding against the only property, it has been a settled position of law that all such Execution Petitions need to be clubbed together and the sale proceeds of the property should be apportioned between the Decree Holders on the principle of rateable distribution. According to the counsel, the impugned order of the learned Single Judge offends this principle and therefore needs to be voided.
3. Learned Additional Government Advocate appears for the official respondents; the 4th Respondent-Party-in- person present in the court at once and in all fairness submits that he does not have any objection for the invocation of rateable distribution principle and that the -5- NC: 2023:KHC:34353-DB WA No. 906 of 2023 appeal be disposed off on the basis of that arrangement. At this stage, learned Sr. Advocate appearing for the appellants draws our attention to the application filed by his clients wherein the order dated 14.07.2021 made by a Co-ordinate Bench of this court in W.A.No.466/2021 is sought to be recalled on the ground that certain observations which have the effect of excluding the claim of the appellants from proceeding against the subject property have been made. Of course, that application is not posted before us today.
4. We would have straightaway disposed off the writ appeal on the basis of the fair concession shown by the 4th Respondent- party appearing in person before us. However, certain intricacies of facts & law involved in the appeal compel us to treat certain aspects of the matter as under:
(a) It is not in dispute that the appellants and the 4th Respondent have obtained compensation orders at the hands of the District Consumer Forum in independent -6- NC: 2023:KHC:34353-DB WA No. 906 of 2023 proceedings against the same opponent and they have put the said orders in Execution Proceedings, denoting one single property belonging to the opponent, namely M/s.
KRK Properties Pvt. Ltd.,. The same property having been auctioned for an inadequate price, the dispute landed in W.P.No.7580/2020 filed by the appellants herein and the said auction came to be set aside by the learned Single Judge vide order dated 17.12.2020.
(b) The above order of the learned Single Judge made in W.P.No.7580/2020 was taken up in W.A.No.466/2021 filed by the 4th Respondent herein and a Co-ordinate Bench of this court vide order dated 14.07.2021 disposed off the same with the following observations occurring at para 4 thereof:
"Resultantly, the Deputy Commissioner is directed to cancel the auction by passing the appropriate order. The same has not been done within 15 days from today and thereafter within three months process of auction shall be concluded and the amount shall be paid to Sri Murthy in accordance with law. With the aforesaid, the writ appeal stands disposed of".
sic -7- NC: 2023:KHC:34353-DB WA No. 906 of 2023 The purport of the above order is: the subject property which was auctioned for a song should be re-auctioned and the claim of 4th Respondent should be satisfied from the appropriating the sale proceeds thereof. It is precisely because of these observations, the learned Single Judge has made the impugned order, which we would not have otherwise interfered with. That being said, there is force in the submission of learned Sr. Advocate Mr. Patil that the Co-ordinate Bench had disposed off 4th Respondent's Writ Appeal No.466/2021 at the admission stage and thus obviously sans notice to his clients. That is the reason, the appellants have moved a separate recalling application in the said Writ Appeal. We may not repeat that the said application is not posted before us this day. Be that as it may.
(c) Learned Sr. Advocate Mr. Patil draws our attention to the principle enacted in Sec.73 of CPC, 1908. This section provides for rateable distribution of proceeds of execution among multiple Decree Holders in VITHAL -8- NC: 2023:KHC:34353-DB WA No. 906 of 2023 DAS vs. NAND KISHORE, (1901) ILR 23 ALL 106 at 110 succinctly states the legal position as under:
"The object of the section is two-fold. The first object is to prevent unnecessary multiplicity of execution proceedings, to obviate, in a case where there are many decree-holders, each competent to execute his decree by attachment and sale of a particular property, the necessity of each and every one separately attaching and separately selling that property. The other object is to secure an equitable administration of the property by placing all the decree holders in the position I have described, upon the same footing, and making the property rateably divisible among them, instead of allowing one to exclude all the others merely because he happened to be the first who had attached and sold the property."
(d) The 4th Respondent- party- in-person with appreciable measure of fairness agreed to the proposal of the appellants that all the Execution Cases be clubbed and processed against the subject common property and the auction proceeds thereof be appropriated to the satisfaction of compensation orders independently secured by the parties at the hands of the District Consumer Forum, and this be done on the principle of rateable distribution as enacted in Sec.73 of the Civil Procedure -9- NC: 2023:KHC:34353-DB WA No. 906 of 2023 Code, 1908, which provides that where two or more persons have obtained decrees for the payment of money against the same Judgment Debtor and they have put those decrees in enforcement, the auction proceeds of his property should be shared by all such Decree Holders in proportion to their decreetal amounts. However, the question of rateable distribution would crop up only if the auction proceeds of the subject property is insufficient to satisfy all the decreetal debts and not otherwise. Much elaboration is not needed, in view of a fair kind of settlement arrived at between the appellants on the one hand and 4th Respondent on the other, who happen to be the only stakeholders in the matter. Justice of the case warrants that this appeal be disposed off accordingly, so that the fruits of the legal battles reach the hands of the victorious parties.
In the above circumstances, this writ appeal is disposed off with a direction that the Execution Cases filed by the appellants be taken up with the Execution Case filed
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NC: 2023:KHC:34353-DB WA No. 906 of 2023 by the 4th Respondent herein for disposal together, on the principle of rateable distribution of properties concerned, as expeditiously as possible.
In view of the above, the appellants application filed in 4th Respondent's Writ Appeal No.466/2021, pales into insignificance and accordingly is disposed off.
Costs made easy.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE cbc List No.: 1 Sl No.: 1