Research › Search › Judgment

Karnataka High Court · body

2002 DIGILAW 572 (KAR)

G. Veerabhdrayya v. State Bank of Mysore

2002-09-13

N.K.PATIL

body2002
ORDER N.K. Patil, J.--This revision petition is directed against the order dated 4.10.2001 passed in E.P. No. 25 of 1999 on the file of the Civil Judge (Jr. Dn.) and J.M.F.C., Siruguppa. 2. The facts of the case are that the Petitioner is the purchaser of land bearing Sy. No. 141/A/2 measuring 2 acres 13 cents and Sy. No. 142/A measuring 4 acres 95 cents. In all 7 acres 8 cents situating at Hale Kote Village, Siruguppa Taluk, Bellary District, were purchased under a registered sale deed dated 29.8.1997 from the second Respondent through his power of attorney holder. The second Respondent thereby conveyed the absolute right, title, interest and possession in favour of the Petitioner with free encumbrance. In pursuance to the registered sale deed, the mutation has been sanctioned and the name of the Petitioner has been entered in the relevant RTC also and the Petitioner has paid necessary kandayam to the revenue authorities. Be that as it may, it appears, the first Respondent herein filed an Execution Petition No. 25 of 1999. The said Execution Petition has been proceeded with, without impleading the Petitioner as party to the said proceedings. The Execution Petition was initiated at the instance of the first Respondent, wherein the properties were the subject matter of sale and the sale was confirmed by an order of the Court dated 4.10.2001 in favour of the 4th Respondent who is the son of the third Respondent herein. 3. The said Execution Petition was initiated behind the back of the Petitioner. Petitioner came to know about the same through one Mullah Babu on 17.1.2002 and immediately thereafter, he has approached this Court in this revision challenging the impugned order dated 4.10.2001 confirming the sale dated 30.8.2001. 4. The first and the foremost contention of the learned Counsel for the Petitioner is that the impugned order of confirmation of sale by the Executing Court is contrary to the relevant provisions of the Code of Civil Procedure and the said order is perverse as it is an out come of fraud and misrepresentation on the part of the Respondents and the trial Court has committed an error in confirming the sale. 5. 5. Secondly, he vehemently contended that the Executing Court has failed to comply with the mandatory requirement contemplated under the provisions of Order 21, Rules 71-A, 77, 82, 83, 84 and 85 of Code of Civil Procedure and as such, the confirmation of sale by the trial Court is illegal, bad in law and liable to be set aside. 6. Thirdly, he contended that the Executing Court, before confirming the sale, ought to have verified the revenue records and also the encumbrance certificate to know about the property, which was put to sale. The trial Court is duty bound to verify the relevant documentary evidence available on record for this purpose. If the trial Court had verified the relevant documents, the Court would have been satisfied that the Petitioner is in possession and enjoyment of the property in question under the registered sale deed. Without verifying the relevant documents, the trial Court has proceeded to confirm the sale, which is unsustainable and bad in law. 7. It is further contended by the learned Counsel that the loan amount borrowed much less than the value of the property which is around 7 to 8 lakhs. This fact is not at all considered by the Executing Court. In support of this contention, the learned Counsel placed reliance on the decision of the Apex Court in the case of Ambati Narasayya Vs. M. Subba Rao and another, AIR 1990 SC 119 . The relevant portion of the said judgment reads thus: 7.1 It is of importance to note from this provision that in all execution proceedings, the Court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small, the Court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree-holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provisions of law only such portion of the property should be sold. This, in our opinion, is not just a discretion, but an obligation imposed on the Court. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provisions of law only such portion of the property should be sold. This, in our opinion, is not just a discretion, but an obligation imposed on the Court. Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction. 8. It is submitted by the learned Counsel that in view of the law laid down by the Apex Court, the trial Court is duty bound to consider the subject matter of the petition and the Court might have confined the confirmation of the sale only in respect of a portion of the lands in question to meet the loan amount advanced. But the Court below has confirmed the sale with respect to the entire lands in question, which is unsustainable. It is also contended by the learned Counsel that the third Respondent being the power of Attorney of the second Respondent has put his own son, the 4th Respondent, to participate in the auction without the knowledge of the second Respondent. The conduct of the third Respondent in this behalf is not sustainable. The third Respondent has acted in erroneous manner behind the back of the second Respondent and the Petitioner. He therefore submitted that taking into consideration the legal position, the impugned order passed by the trial Court is liable to be set aside. 9. Per contra, the learned Counsel appearing for the second Respondent, has filed a statement by way of an affidavit stating that he is the absolute owner of the lands in question. In order to develop his business, in the year 1990, he borrowed loan from the first Respondent and for the purpose of the said loan the lands in question were given as security and the third Respondent was the surety. As he could not establish his business at Sirguppa town, he shifted his business to Hosur (Tamil Nadu). The third Respondent is not only a surety but he is also a good friend and as such he had given his Hosur address to the third Respondent on shifting his business. As he could not establish his business at Sirguppa town, he shifted his business to Hosur (Tamil Nadu). The third Respondent is not only a surety but he is also a good friend and as such he had given his Hosur address to the third Respondent on shifting his business. In the year 1991, the third Respondent approached the second Respondent and asked him to clear off the loan amount taken from the first Respondent. Thereafter the loan borrowed was cleared by him through the third Respondent. 10. It is stated by the second Respondent, that he was not served with any notices of the suit filed by the first Respondent for recovery of the money, whereas notice was served on the third Respondent who was aware of the address of the second Respondent. But the second Respondent had no information in respect of filing of the suit by the first Respondent. It is alleged by the second Respondent that a decree has been passed in O.S. No. 6 of 1993 on 23.9.1997 and against the said decree F.D.P. No. 1 of 1998 was passed in the year 1998 and thereafter finally, Execution Petition No. 25 of 1999 was filed against the second and the third Respondent. It is vehemently contended by the learned Counsel that the second Respondent was totally kept in dark and had no notice of all these proceedings. 11. It is further stated by the second Respondent that auction of the property was held on 15.9.2001. The third Respondent who was the surety and aware of the address of the second Respondent, without intimating the same to the second Respondent, participated in the auction in the name of his son namely the 4th Respondent. It is alleged by the second Respondent that the third Respondent has played a key role in grabbing the property keeping him dark about all the proceedings. The second Respondent fairly submitted that even today he is willing to deposit the bid amount either before this Court or before the trial Court and prayed for setting aside the confirmation sale of dated 4.10.2001. 12. The learned Counsel appearing for 3rd and the 4th Respondent vehemently contended that the revision petition filed by the Petitioner is not maintainable. The only option for the Petitioner is to file a suit challenging the confirmation of the order passed by the Executing Court. 12. The learned Counsel appearing for 3rd and the 4th Respondent vehemently contended that the revision petition filed by the Petitioner is not maintainable. The only option for the Petitioner is to file a suit challenging the confirmation of the order passed by the Executing Court. The learned Counsel placed reliance on the judgment of this Court in the case of Syndicate Bank, Saraswathipuram, Mysore Vs. Smt. B. Anuradha and Others, (1998) 6 KarLJ 484 and Sidramappa Rachappa Chiniwar and Ors. v. Shakaralingappa Veerappa Bilagi and Ors. AIR 1979 Kar 89 . 13. It is contended by the learned Counsel for Respondents-3 and 4 that they have not committed any misdeeds and that the impugned order passed by the trial Court is justified. Therefore they contended that the revision petition filed by the Petitioner is not maintainable in view of the law laid down by this Court. 14. I have heard the learned Counsel for the Petitioner as also the Respondents and perused the impugned order passed by the trial Court, I have carefully gone through the records and evaluated the materials made available before this Court. 15. The undisputed fact is that the lands in question were purchased by the Petitioner under a registered sale deed as early as in the year 1997. In pursuance of the said sale deed executed by the second Respondent in favour of the Petitioner, his name has been entered in the relevant RTC extracts and he has paid the Kandayam to the revenue authorities as well. It is significant to note that the Execution Petition has been filed in the year 1999 and as on the date of filing of the Execution Petition, the relevant documents such as encumbrance certificate, mutation extracts, RTC extracts and the Kandayam paid to the revenue authorities stand in the name of the Petitioner. The third Respondent being a close friend of the second Respondent, being fully aware of all the proceedings, kept the second Respondent in dark and has played a key role in grabbing the property in question. The track of records reveal that the third Respondent has intentionally and deliberately did not inform the second Respondent about the F.D.P and the Execution proceedings and has participated in the auction through his son the 4th Respondent. 16. The track of records reveal that the third Respondent has intentionally and deliberately did not inform the second Respondent about the F.D.P and the Execution proceedings and has participated in the auction through his son the 4th Respondent. 16. The trial Court has committed an error in not following the due process of law provided under the relevant provisions of the Act. The trial Court ought not to have proceeded to confirm the sale without verifying the documentary evidence in respect of the lands in question. The trial Court has made no efforts to find out the relevant materials that are required to be verified before confirming the sale. It has also erred in confirming the sale without thoroughly verifying the fact, whether it is necessary to bring the entire attached property to sale to satisfy the decree. The trial Court, in my opinion, has violated the well settled law laid down by the Apex Court in Ambati Narasayya's case referred supra, wherein, it is held that, it is of importance to note from the provision that in all execution proceedings, the Court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small, the Court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree holder. Therefore, in the instant case, this aspect of the matter has not been taken into consideration by the Executing Court. 17. It is to be noted that the decisions relied on by the learned Counsel for the Respondents-3 and 4 are not applicable to the facts of the present case. 18. The learned Counsel appearing for the 2nd Respondent has filed a detailed affidavit before this Court to bring to the notice of this Court, the way in which Respondents-3 and 4 have colluded and kept the second Respondent in dark about the F.D.P. and the Execution proceedings. The way in which they have proceeded, itself is suffice for this Court to gauge the conduct of Respondents-3 and 4. The third Respondent being a close friend of the second Respondent has betrayed him in order to grab the property in question. The way in which they have proceeded, itself is suffice for this Court to gauge the conduct of Respondents-3 and 4. The third Respondent being a close friend of the second Respondent has betrayed him in order to grab the property in question. I find considerable force in the submissions made by the learned Counsel for the second Respondent. 19. Having regard to the facts and circumstances of the case and the legal position, I do not find any justification in the impugned order passed by the Executing Court. Taking into account the totality of the case on hand, the impugned order passed by the Executing Court dated 4.10.2001 is set aside and the matter stands remitted back to the Executing Court with a direction to permit the Petitioner to come on record. The Executing Court shall give due opportunity to the Petitioner as also the Respondents and pass appropriate orders in accordance with the provisions of the Act, as expeditiously as possible, in any event, within a period of six months from the date of receipt of this order. C.R.P. disposed of accordingly. Parties to bear their costs.