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2017 DIGILAW 790 (KAR)

C. E. Dharmappa v. D. G. Hanumanthappa

2017-04-25

ARAVIND KUMAR

body2017
JUDGMENT : Aravind Kumar, J. 1. Heard Sri M.S. Nagaraja, learned Counsel appearing for the petitioners and Sri Satish M. Doddamani, learned Counsel appearing for the respondent 1. Notice to respondent 2 has been dispensed with vide order dated 23-7-2015. Perused the records. 2. Respondent 1 herein filed two (2) suits against deceased respondent 2-Sri Bashakhan in O.S. Nos. 350 of 1993 and 230 of 1994 for recovery of Rs. 17,677/- and Rs. 43,431/- with interest respectively. In O.S. No. 230 of 1994 Trial Court by order dated 4-6-1994 passed an order of attachment before judgment attaching the property bearing Sy. No. 77 situated at Chittoor Village, Soraba Taluk, Shimoga District, measuring 4 acres 5 guntas. Both suits came to be decreed on 29-6-2001 and 23-11-2010 respectively. 3. In order to enjoy the fruits of the decree obtained, execution petitions came to be filed by decree-holder in Ex. No. 2 of 2012 (in respect of O.S. No. 350 of 1993) and Ex. No. 2 of 2011 (in respect of O.S. No. 230 of 1994). Petitioners herein claiming to be the agreement holders of the property attached before judgment contended that they had entered into an agreement to purchase the property, which is the subject-matter of attachment before judgment with deceased judgment-debtor - Sri Bashakhan and on account of his failure to execute the sale deed, they have filed O.S. No. 13 of 2001 (suit for specific performance) and in the event of said property is brought to sale, as is now sought to be done by the Executing Court in these two execution petitions, the right of petitioners in respect of said property which has got crystalised by virtue of agreement of sale, would get defeated and as such an application under Order 38, Rule 9 of Civil Procedure Code, 1908 was filed for raising attachment in Ex. No. 2 of 2011 and an application under Order 21, Rules 58 and 59 of CPC was filed in Ex. No. 2 of 2012. It is contended by them that Executing Court without considering the said application, ought not to have proceeded to order for sale of the property, which has been attached before judgment on 4-6-1994. 4. No. 2 of 2011 and an application under Order 21, Rules 58 and 59 of CPC was filed in Ex. No. 2 of 2012. It is contended by them that Executing Court without considering the said application, ought not to have proceeded to order for sale of the property, which has been attached before judgment on 4-6-1994. 4. It is the contention of Sri M.S. Nagaraja, learned Counsel appearing for the petitioners that even otherwise when it was brought to the notice of the Executing Court about the suit O.S. No. 13 of 2001 having already been filed in respect of the property sought to be sold and same being subject-matter in a different proceeding, Executing Court ought to have exercised the power under Order 21, Rule 26 of CPC to stay further proceedings in both the execution petitions and he contends that Executing Court ought not to have proceeded with the issuance of sale notice. He would also elaborate his submission by contending that when application is filed under Order 38, Rule 9 as well as under Order 39, Rules 1 and 2, Executing Court ought to have considered the said applications and only after adjudication of said applications it could have proceeded to pass orders for sale of subject property and on account of non-consideration of said applications by the Executing Court and now proceeding with the sale of property, it has resulted in great prejudice to the petitioners and thereby it has occasioned miscarriage in the administration of justice. Hence, he prays for allowing the writ petitions and quashing the impugned orders. 5. Per contra, Sri Satish M. Doddamani, learned Counsel appearing for first respondent-decree-holder would support the impugned orders and contends that petitioners do not have any locus standi to participate in the execution proceedings itself and even otherwise, since they have not complied with the order passed by the Trial Court as also order passed by this Court, he prays for present writ petitions being rejected in limine. 6. Having heard the learned Advocates appearing for parties and after bestowing my careful and anxious consideration to the rival contentions raised at the bar, it can be noticed that first respondent had instituted a suit O.S. No. 230 of 1994 against second respondent herein i.e., Mr. Bashakhan, who is the first judgment-debtor in Ex. No. 2 of 2011 for recovery of money of Rs. Bashakhan, who is the first judgment-debtor in Ex. No. 2 of 2011 for recovery of money of Rs. 40,000/- along with interest at 12% p.a. from the date of suit till date of payment or realisation, whichever is earlier. An application under Order 38, Rule 5 of CPC came to be filed by the petitioners seeking attachment before judgment of the immovable property measuring 4 acres 5 guntas situated at Shimogga. Trial Court by order dated 4-6-1994 had attached the property. Subsequently, after trial suit came to be decreed on 23-11-2010 - Annexure-E. The decree passed thereunder would clearly indicate that first defendant therein was directed to pay suit amount of Rs. 43,431/- along with interest at 12% p.a. compounded quarterly from the date of suit till realisation of the entire amount and first defendant was granted one month time to pay the said amount from the date of judgment and failure to do so, entitled the decree-holder therein to seek for recovery of said decreetal amount by sale of the property, which had been already attached on 4-6-1994 by making the order of attachment before judgment passed absolute. It is this decree which was put into execution in Ex. No. 2 of 2011. In the said execution proceedings petitioners herein filed an application under Order 38, Rule 9 of CPC for raising of attachment before judgment on 4-6-1994 as per Annexure-K. 7. In the meanwhile, decree-holder in order to execute the decree passed in O.S. No. 350 of 1993 has also filed an Execution Petition No. 2 of 2012 as per order sheet of the Executing Court - Annexure-L. Said execution proceedings was initiated in the Court of Civil Judge (Junior Division) and Judicial Magistrate First Class, Soraba and on account of property being situated within the jurisdiction of Soraba, decree was transferred by way of precept under decree transfer proceedings and accordingly, proceedings came to be transferred to Civil Judge and Judicial Magistrate First Class, Soraba. Said Executing Court was also adjudicating the Execution Petition No. 2 of 2011 filed by the decree-holder. Thus, both the execution petitions are pending before the same Court. 8. It is no doubt true that I.A. No. 2 filed by the second judgment-debtor under Order 38, Rule 9 of CPC as per Annexure-K in Ex. No. 2 of 2011 was not disposed of in the said execution proceedings. Thus, both the execution petitions are pending before the same Court. 8. It is no doubt true that I.A. No. 2 filed by the second judgment-debtor under Order 38, Rule 9 of CPC as per Annexure-K in Ex. No. 2 of 2011 was not disposed of in the said execution proceedings. Since both the execution petitions were pending before the same Court, it has been considered as an application filed in Execution No. 2 of 2012 by the Executing Court. 9. Be that as it may. The confusion that has crept into the mind of the Executing Court on account of two execution petitions pending before the same Court, would in no way be the subject-matter for consideration in these writ petitions, for the simple reason that in the present writ petitions this Court by order dated 24-4-2013 had directed the writ petitioner to deposit the decreetal amount as per decree passed in O.S. Nos. 350 of 1993 and 230 of 1994, which order came to be passed on the basis of submission made by Sri M.S. Nagaraja, learned Counsel appearing for the petitioners and of course it was without prejudice to the rights of the writ petitioners. 10. However, fact remains that petitioners have neither filed a memo nor an affidavit before this Court in the present writ petitions reporting compliance of the order dated 24-4-2013. However, at this juncture, Sri M.S. Nagaraja, learned Counsel appearing for the petitioners has made available the certified copy of order sheet of Ex. No. 2 of 2011 along with receipt dated 29-5-2013 and 30-5-2013, which would reflect that a sum of Rs. 17,677/- and Rs. 43,431/- has been deposited in the said execution proceedings. At this juncture, Sri Satish M. Doddamani, learned Counsel appearing for respondent 1-decree-holder submits that it is only the principal amount which has been deposited before the Executing Court and not the interest. However, this is seriously disputed by Sri M.S. Nagaraja, learned Counsel appearing for petitioners contending that such deposit was not only in compliance with the order of this Court but it is also as per the decree. 11. However, this is seriously disputed by Sri M.S. Nagaraja, learned Counsel appearing for petitioners contending that such deposit was not only in compliance with the order of this Court but it is also as per the decree. 11. It is needless to state that if petitioners have complied with the order of Executing Court dated 4-4-2013 or decree passed in O.S. No. 2 of 2011 by depositing the decreetal amount with interest, Executing Court would be at liberty to pass necessary orders pursuant to same either accepting it or assigning the reasons thereof as to why such deposit cannot be permitted or it is impermissible and then proceed to conduct the sale as already ordered by it. Executing Court is directed to take into consideration the amount deposited by the writ petitioners and shall proceed to adjudicate the pending execution proceedings accordingly. In the event of there being no proper compliance as per the decree or order passed by this Court on 24-4-2013, Executing Court would be at liberty to proceed with conducting of the sale immediately and forthwith, since chain of events in the present proceedings would dearly indicate that petitioners are only the agreement holders and their right, if any, in the property which is the subject-matter of sale, is yet to be crystalised by way of decree in their favour. 12. In the light of afore-stated discussion, this Court is of the considered view that it would suffice if a direction is issued to the Executing Court to consider the amount deposited by the petitioners and examine whether it would be in compliance of order dated 4-4-2016 and order passed by this Court on 24-4-2013, which would satisfy the decrees passed in O.S. Nos. 350 of 1993 and 230 of 1994 thereof and only then proceed to sell the properties which is now brought to sale. Subject to above observations, writ petitions are disposed of. Ordered accordingly.