Karnataka High Court
Sri K Nagaraj vs Sri N P Srinivas on 22 March, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:12074
WP No. 8417 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.8417 OF 2024 (GM-CPC)
BETWEEN:
SRI K NAGARAJ
S/O KRISHNAPPA
AGED ABOUT 63 YEARS
R/AT NANDI VILLAGE, NANDI HOBLI
CHICKBALLAPUR TALUK
AND DISTRICT 562 101
...PETITIONER
(BY SMT. MUSRATH TABASSUM, FOR
SRI. SUDHINDRA S A., ADVOCATE)
AND:
SRI N P SRINIVAS
SINCE DEAD BY HIS LRS
1. SMT CHANDRIKA
Digitally signed by W/O LATE N P SRINIVAS
VANDANA S AGED ABOUT 54 YEARS
Location: High
Court of Karnataka
2. SRI. N.S. BHARATH
S/O LATE N P SRINIVAS
AGED ABOUT 32 YEARS
BOTH ARE RESIDING AT
NANDI VILLAGE
NANDI HOBLI
CHICKBALLAPUR TALUK
AND DISTRICT 562 101.
...RESPONDENTS
(BY SRI. ARUN SHYAMA, SENIOR COUNSEL FOR
SRI. P. SUBRAMANYA, ADVOCATE)
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NC: 2024:KHC:12074
WP No. 8417 of 2024
THIS W.P IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 07/03/2024 PASSED ON IA NO.6 FILED BY THE
PETITIONER - JUDGMENT DEBTOR UNDER ORDER 21 RULE 89
R/W SECTION 151 OF CPC IN EX.NO.51/2017 IS DISMISSED ON THE
FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM,
CHICKBALLAPUR (ANNEXURE-H).
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition by the judgment debtor in Execution No.51/2017 is directed against the impugned order dated 07.03.2024 passed on I.A.No.6 by the Prl. Senior Civil Judge & CJM, Chikkaballapur, whereby the said application filed by the petitioner - judgment debtor under Order 21 Rule 89 r/w Section 151 CPC requesting the Executing Court to set aside the Sale Deed dated 15.07.2023 and to direct the respondent - decree holder to draw the amount deposited by the petitioner - Judgment debtor before the Executing Court was dismissed by the Executing Court.
2. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record.
3. A perusal of the material on record will indicate that respondents - decree holders has instituted the aforesaid executing proceedings to enforce and implement the Compromise -3- NC: 2024:KHC:12074 WP No. 8417 of 2024 decree dated 21.03.2017 passed in O.S.No.28/2013 by the Trial Court.
4. In this context, it is relevant to state that as per the terms and conditions of the Compromise decree, petitioner -
judgment debtor was liable to pay a sum of Rs.12,21,000/- back to the respondents - decree holders within a period of three months from 21.03.2017. The Compromise Decree also contemplates that in the event petitioner do not pay the aforesaid sum of Rs.12,21,000/- back to the respondents - decree holders, the respondents - decree holders would be entitled to get the Compromise decree executed by enforcing the Sale Agreement and getting the Sale Deed registered through Court.
5. Respondents - decree holders instituted the aforesaid execution proceedings on 12.12.2017, after expiry of a period of three months interalia contending that the petitioner - judgment debtor had not repaid - refunded the aforesaid sum of Rs.12,21,000/- back to respondents - decree holders, who were accordingly entitled to execute the decree by directing the petitioner - judgment debtor to execute the Sale Deed in favour of the respondents - decree holders. During pendency of the said -4- NC: 2024:KHC:12074 WP No. 8417 of 2024 execution proceedings, the Executing Court executed a Court Sale Deed dated 15.07.2023 in favour of the respondents - decree holders through the Court. Meanwhile, petitioner - judgment debtor deposited the aforesaid sum of Rs.12,21,000/- in four installments as stated under:
(i) Rs.6,00,000/- on 28.03.2023
(ii) Rs.3,00,000/- on 25.05.2023
(iii) Rs.2,21,000/- on 24.06.2023
(iv) Rs.1,00,000/- on 14.07.2023
6. Under these circumstances, the petitioner - judgment debtor filed an application seeking setting aside the Sale Deed by invoking Order 21 Rule 89 CPC. In the first instance, an order dated 01.12.2023 having been passed by the Executing Court, the same was challenged before this Court in W.P.No.1399/2024, which was allowed vide order dated 19.01.2024 and matter remitted back to the Executing Court for reconsideration of I.A.No.6 afresh in accordance with law. After remand, the Executing Court heard both parties and dismissed the application - I.A.No.6 by passing the impugned order, which is assailed in the present petition.
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7. A perusal of the undisputed material on record will indicate that as per the Compromise decree, the petitioner had undertaken and was bound to deposit a sum of Rs.12,21,000/-
within a period of three months from 21.03.2017. It is an undisputed fact that the first installment of Rs.6 lakhs was deposited by the petitioner only on 28.03.2023 i.e., almost after about 6 years from the date of undertaking given under the Compromise decree. It is also significant to note that respondents
- decree holders instituted the execution proceedings as long back as on 12.12.2017 and having entered appearance, the petitioner filed objections as long back as on 10.03.2020. It is therefore clear that even after filing objections as long back as on 10.03.2020, petitioner chose to deposit only a sum of Rs.6 lakhs that to on 28.03.2023. Under these circumstances, the Trial Court was fully justified in passing the impugned order rejecting I.A.No.6 filed by the petitioner by holding as under:
"ORDER ON IA No.6 Instant application has been filed by applicant / judgment debtor under Order 21 Rule 89 R/w section 151 of CPC requesting the court to set-aside sale deed dated: 15.07.2023 and direct the decree holder to draw the amount deposited -6- NC: 2024:KHC:12074 WP No. 8417 of 2024 by JDR before the court.
2. It is stated in affidavit filed in support of application that, the decree holder has filed present petition based on decree passed in OS.No.28/2013, which was filed for specific performance of contract. On 21.03.2017 the applicant and decree holder filed compromise petition. As per terms of compromise JDR has to deposit amount within three months otherwise decree holder may proceed with sale of property. After compromise the applicant on many times approached the decree holder requesting him to receive amount but same was postponed by him. Due to Covid-19 pandemic the JDR / applicant has not deposited the amount in the court. Thereafter, recently with permission of court he deposited amount in the court. The sale deed executed by court commissioner is not valid. On these grounds, it is requested to allow application.
3. The DHR has filed objection by contending that, application is not maintainable under law or on fact, same liable to be dismissed in limine. It is contended that, the applicant has sworn false facts to the affidavit filed in support of application. There is no irregularities or illegalities in execution of sale deed dated: 15.07.2023. The applicant has filed present application just to protract the proceedings. If application is dismissed no prejudice will be caused to the applicant. If same -7- NC: 2024:KHC:12074 WP No. 8417 of 2024 is allowed, the LR's of decree holder will be put to great loss. On these grounds, it is requested to dismiss the application.
4. Heard on both sides.
5. Perused the records placed before the Court.
6. The following points are arises for my consideration:
POINTS
1) Whether applicant / JDR has made out sufficient grounds to set-aside sale deed dated 15.07.2023 in respect of petition schedule property executed by court commissioner in favour of DHR?
2) What Order ?
7. To the above points my findings are as under :
Point No.1 : In the Negative.
Point No.2 : As per final order for the following :
REASONS
8. Point No.1 : It is to be noted here, this court on 01.12.2023 has passed order on application and thereby dismissed the application filed by JDR. The JDR challenging the order passed by this court has preferred Writ Petition No.1399/2024 (GM CPC) before Hon'ble High -8- NC: 2024:KHC:12074 WP No. 8417 of 2024 Court of Karnataka. The Hon'ble High Court of Karnataka by its order dated: 19.01.2024 has allowed, the writ petition filed by JDR and said aside order dated: 01.12.2023 passed on IA No.6. The Hon'ble High Court directed this court to consider application and pass appropriate order on merits in accordance with law after hearing both sides. The Hon'ble High is further directed dispose of application within one month from date of receipt of copy. This court has received order copy of Hon'ble High Court on 26.02.2023.
9. As directed by Hon'ble High Court It is verified and account branch has put note that, on 30.03.2023 an amount of Rs.6,00,000/- deposited in CCD. Considering said account note branch and perusal of records as well as ordersheet the JDR has deposited an amount of Rs.12,21,000/-.
10. It is evident from records that, based on compromise decree dated: 21.03.2017 passed in OS.No.28/2013, which was filed by N.P.Srinivas for relief of specific performance of contract, present execution petition filed by DHR. As per terms of compromise, the JDR herein being defendant therein in OS.No.28/2013 had agreed to return an amount of Rs.12,21,000/- to the plaintiff therein within three months from date of decree.
11. On going through the order-sheet, on -9- NC: 2024:KHC:12074 WP No. 8417 of 2024 25.05.2023 the JDR deposited an amount of Rs.3,00,000/- before the court through DD and on 24.06.2023 he deposited sum of Rs.2,21,000/- and on 14.07.2023 he deposited another sum of Rs.1,00,000/- and on 30.03.2023 the JDR deposited an amount of Rs.6,00,000/- before the court. In total the JDR has deposited an amount of Rs.12,21,000/- before the court.
12.Now it is contention of JDR that, after compromise on many times he approached the decree holder requesting him to receive amount but DHR was suffering from aliment and he took time to appear before Sub-Registrar to cancel sale agreement. Further it is contended by JDR that, during the year 2017 there was demonetization. Thereafter, there was vide spread of covid-19 from 2019 and 2020. During 2019, JDR has suffered paralysis stroke. Earlier counsel for JDR not able to come to court and deposited amount in the court. Now the JDR is ready to pay amount as agreed by him to DHR. On these grounds it is requested to set-aside sale in respect of petition schedule property which was executed by court commissioner in favour of DHR.
13. It is to be noted here, Order 21 of CPC deals with the elaborate procedure pertaining to the execution of orders and decrees. Sale is one of the methods employed for execution. Rule 89 of
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NC: 2024:KHC:12074 WP No. 8417 of 2024 Order 21 is the only means by which a Judgment Debtor can escape from a sale that has been validly carried out. Object of the rule is to provide a last opportunity to put an end to the dispute at the instance of Judgment Debtor before the sale is confirmed by the Court and also to save his property from dispossessing. Rule 89 postulates two conditions: they are depositing-(l). of sum equal to five percent of the purchase money to be paid to the purchaser, (2). of the amount specified in the proclamation of sales less any amount received by the decree holder since the date of such proclamation, in the Court. If these two conditions are satisfied the Court shall make an order for setting aside the sale under Rule 92(2) or Order 21 of CPC on an application made to it. Further upon satisfaction of compliance of condition as provided under Rule 89 it is mandatory upon the court to set-aside sale under Rule 92.
14. Herein the case, it is not contention of JDR that, DHR has filed execution petition to enforce decree passed by the court, in consequence of same, as JDR not paid amount, his property was attached, proclamation was issued and thereafter auction was held and property was sold in said auction. If that is the case, JDR can very well file application under application under Order 21 Rule 89 of CPC seeking setting aside of sale of property by depositing amount.
15. Herein the case, as per terms of
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NC: 2024:KHC:12074 WP No. 8417 of 2024 compromise entered between parties themselves in OS.No.28/2013, the JDR being defendant therein has to pay total amount of Rs.12,21,000/- to the DHR within three months from date of compromise. It is further specifically mentioned compromise entered between parties that, in default, the plaintiff / DHR is entitled to decree of specific enforcement of agreement of sale and he is at liberty to get sale deed registered in his name in due course of law. Compromise decree was drawn on 30.06.2017, if that is so, as agreed by JDR he has to pay amount to the DHR within three months from 30.06.2017. It is evident from ordersheet in present execution petition, same was filed on 12.12.2017. It means after lapse of more than 06 months from compromise decree passed by the court the DHR has filed present execution petition to enforce terms of compromise.
16. It is worth to note here that, on perusal of ordersheet notice to JDR served by way of affixure on 06.12.2019. On said date the JDR appeared before the court through his counsel. The JDR has not made any efforts to deposited agreed amount before the court, when he appeared before the court through his counsel. On the other hand only 29.05.2023 the JDR deposited an amount of Rs.3,00,000/- before the court. Thereafter on subsequent dates, he deposited an amount in total Rs.12,21,000/-. It is
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NC: 2024:KHC:12074 WP No. 8417 of 2024 very much evident from above mentioned facts, the JDR has not paid amount as agreed by him to the DHR within three months from date of compromise decree. After lapse of nearly 06 years from date of compromise, on 29.05.2023, the JDR deposited an amount of Rs.3,00,000/- .
17 . It is significant to note here that, the JDR has contended, immediately after compromise he approached DHR and requested him to receive amount, but due to ill-health the DHR has not come to Sub-Registrar Office and received amount and thereby executed deed of cancellation of agreement of sale. In order to substantiate such contention nothing placed on record except oral contention. The JDR was well aware the consequence of not paying an amount within 3 months from date of compromise decree. Having aware about the same, the JDR would have taken necessary steps at least to issue legal notice to the DHR asking him to receive amount as per terms of compromise and to execute deed of cancellation. Even contention of JDR were to be true, DHR intentionally refused to receive amount, the JDR would have obtained DD for amount and posted same to the address of DHR. Without taking such steps and without depositing amount before the court on date of his appearance, the JDR deposited amount only in the year 2023 before the court. Taking into consideration of all these facts, the contention of
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NC: 2024:KHC:12074 WP No. 8417 of 2024 JDR that, he was ready to pay amount to DHR, same was not received by him is not sustainable.
18. It is pertinent to note here that, after appearance of JDR only the commission was issued and through commission sale deed in respect of petition schedule property executed in favour of DHR. As per terms of compromise itself the DHR is entitled for specific performance in respect of schedule property. The terms of compromise itself sufficient, in case JDR failed to pay amount as agreed by him within specified time, the DHR can get sale deed of petition schedule property in due course of law. When JDR not paid amount within time as agreed by him, by following due course of law, the DHR filed execution petition and got sale deed in respect of petition schedule property. In view of these facts, there is no issuance of sale proclamation and sale was not by way of auction, question of applying provisions of Order 21 rule 89 of CPC does not arise. The DHR and JDR being parties to compromise, they are bound by terms of compromise. As JDR not paid amount to the DHR as agreed by him within time, as per terms of compromise only, the DHR got executed sale deed in respect of petition schedule property. Under these circumstances, contention of JDR that, he is ready to pay amount as agreed by him to DHR as such sale of property to DHR has to be set-aside is not sustainable.
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NC: 2024:KHC:12074 WP No. 8417 of 2024 Hence, I point No.1 in the Negative.
19. Point No.2 : As already discussed above on points No.1, I proceed to pass the following :
ORDER I.A.No.6 filed by applicant / JDR under Order 21 Rule 89 R/w section 151 of CPC is hereby dismissed.
No order as to cost."
8. As can be seen from the impugned order, the Trial Court has taken note of the conduct of the petitioner in protracting the execution proceedings and not complying with the terms and conditions of the Compromise decree and also not adhering to the undertaking given by him that he would deposit Rs.12,21,000/-
within a period of three months from 21.03.2017. As stated supra, even the first installment of Rs.6 lakhs was deposited by the petitioner only on 28.03.2023 i.e., almost six years from the date of the Compromise decree. Under these circumstances, I am of the view that the Executing Court was fully justified in passing the impugned order, which does not suffer from any illegality or infirmity warranting interference by this Court in the present petition.
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NC: 2024:KHC:12074 WP No. 8417 of 2024
9. A perusal of the application filed by the petitioner -
judgment debtor will indicate that he has chosen to invoke Order 21 Rule 89 CPC. In this context, it is relevant to state that Order 21 Rule 89 CPC does not apply to the Sale Deed executed by the Executing Court pursuant to the decree for specific performance;
on the other hand, Order 21 Rule 89 CPC permits a judgment debtor or any other person to seek setting aside of an auction sale by the Executing Court; in other words, while a decree for specific performance is executable by taking recourse to provisions of Order 21 Rule 32 CPC, the said provisions would not apply to the Sale deed executed by the Executing Court in favour of the decree holder. On the other hand, Order 21 Rule 89 CPC would apply to the sale of a property pursuant to attachment in Execution proceedings in terms of provisions contained in Order 21 Rule 64 to Rule 73 CPC. Under these circumstances, I am of the view that an application under Order 21 Rule 89 CPC being applicable only to a person including judgment debtor to seek setting aside of the sale of property sold during execution proceedings, the said provision would not apply to the Sale Deed executed by the Executing Court in a suit for specific performance pursuant to decree for specific performance in favour of the decree holder. On
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NC: 2024:KHC:12074 WP No. 8417 of 2024 this ground also, the impugned order passed by the Trial Court cannot be set to be capricious or perverse warranting interference by this Court in the present petition.
10. Accordingly, I do not find any merit in the petition and the same is hereby dismissed.
SD/-
JUDGE SV List No.: 2 Sl No.: 5