IN THE HIGH COURT OF KARNATAKA AT DATED THIS THE 12TH DAYQF MAR£1::s;--- BETWEEN: 1. ' S/0. agéa 'abéiut 'ycaifs R/a? Badagttxietj _ Udupi Disiiimt, " Szti Vadhaja A ' ' S/Q. Gopalgflirishna Upadhyaya " Aged about 4?----3;:iars C,' 0. Krishnamurthy Samaga " ma; Bafiagupet §}!ii'i11iL}iE);'Vi3'fI'iCt. AA ' R] a: Badagupet, Udupi District .A Samaga 9. Late Subbamya Samaga about 68 years ...APPELLAN"I' % (33,; Sri S.Vijaya Shankar, Scnior Counsel for Sri. Y.R.Sadas:i:va Raddy, Advocate) 'W -a:=- .|2 ca The State of Karnataka Rep. by its Secretary Department of Co-operation MJS. Building, Bangalore. The I-fon'b1c Minister for Ccroperatiozl Government of Karnataka Vidhana Soudha Bangalore. 8:. Recovery Oficcr Kundapura Sub-Divisiosz, Kundapum Ucilliii District. -- " V" ' The Assistant Registrar of « [--T A' The Sale Officer Otfiée of 3316 Aéssiswnt Rtzfistri-Jr of Co-operaiive..Si2ciE:1:ié's..._ -- ' Udupi€)ist1ict;*«. A' ' _ ' " 3:'-hc ~ ~ Mahaiakshiniv "Q9-yopfixattive Bank Ltd. " Udupi; Lidupi District. " Bhat ' W] e.'_"_£,ai¢ ' Gopalakristuua Bhat Aggd about 65 years R/raz f\'é>.3846, 169' Cross, Gayathrinagar Bagigalore-560 02 1. ...RESPONDENTS * K.Prasad Hegde, Advocate for R6; Sri H.M.Manjunath, ' _ =.Gove=;:z*nment Advocate for R1 to $34) This appeai is filed under Section 4 of the Karnataka High V' w'Court Act, praying to set aside the order passed in Writ Petition No.6141/2006 dated 02.12.2008. This appeal coming on for preiiminary hearing this day, GOPALA (30%, J., deiivered the foliowing: \%/ JUDGMENT
This appeal is filed by the purchamzs.
order of learned single Judge dated
w.p.No.6141/2006, whemin 13¢ has’va1i¢wed pcfifimiev _
of VI~responde1:1t/Vaxijakshfe. Vivviflhat V
Annexlgres ‘A’ 85 ‘B’ by further
held that public aucfiefi 23.07.1993 in
respect of the leaving upon the
bank to VI-respondent in any
maxmer’ giving credit to the
” consideration V1-
respondeiiifi ji1dg1x:fie1ait:Vde1é_>uior or her legal heirs have already
‘_ the is questioneti in this appeal, urging
. placing reliance on the following decisions
af £11e vv Court and prayed to set aside the order
V –V this appeal as there is substantial question of
u u ‘ ‘1;aw..3_.vo1 11d arise and dismiss the Writ petition.
MR 1971 so 2337
-~21. AIR’ 1974 SC 1331
III. AIR 1983. SC 693
\/
IV. AIR 1991 SC 7’70
.’~’~’
Am 1993(4)supp1scc 659
V}. AIR 1994(1) sec :31 and
VII. ILR 198′?’ KAR 2559.
2. Since the icarned si11gl¢MmJ»udge.”ha9.:::”e1ét’ooI’att:d$r”” ‘V
referred to the facts and Ie_ga1:’
considered the same and ansWr__red ‘same of 3”\:*_: ;
respondent by ass1’gm’ng I’caso1;S”V«19oEajing auction
is illegai 85 ‘B’ by issue of writ of
cerfioféufi is no need for us to advert to
the facts of S ‘
V” ‘THe.A’iear1’xod”AScnior Counsel Sri S.Vijaya Shankar,
_1ia9 ‘V the order of learned single Judge is
it;1{:o1dsisteoI:t:’..– the settled pxinciples with mgard to
V’-.,’iudiciaE._fi::view power of this Court as he has gone beyond
ddeoiudion making process of the authority, Whose decision is
ohallenged by the IV respondent in the writ petition. The
learned single Judge in cxemisc of cxtraoxtiinary and
supervisory jurisdiction has mndcred this order had in law.
\«~/
While considering the Government Order dated
in the revision petition filed by VI-It3SpOnC_iflI7t_i{“~
single Judge was required to “i
but he has expanded his judicial poveeree ‘if
appeilate powers under of Co~
operative Societies A_I96’O”(for’;sfhoi*t, ‘theifiillesfl.
4. The another tfreiiihimpugned order
is that the Judge on the
iois consideration that
appfieatioza’ or the KCS Rules for setting
aside ‘ property in public auction is
not]§i$’i3et1xreefi ijudiegment-debtor and auction purchasers
is«erm1ieous”for the reason that the auction purchasers have
the auction of sale. The impugned
ortier for another reason that the learned single
Jtidgei “sf3.ould have exercised his powers when there is
A irregularity as provided under rule 38(5) of the
__I?%u}es, while setting aside public auction. The disc’ repaneies
recorded by the learned single Judge in the impugned order
While answering the contentious issue on the basis of rive}
\m/
iegal contentions without considering the
the case namely IV Iespondentv-has. . no?! i
eariier writ petition to one of the sa:Ie.,iT’he1’efc<i*e~VV
order should not have zeviewedor zeepened'-iniV"t1?ie"'$econdV'
Writ petition filed by is .ftfi11"ther.vv<:§:ontended
on behalf of the _ iitieiibfisieqglent to auction
purchase on 2L3;Ov7.199'3';".tVIie iiies improved the
property at. i'.:A_ single judge has
eneneoeelviz factor to set aside the
aucfion saie.
S. issued for restoration of the
A_ $o% judg1eei1t~debtor/ Viqespondent is opposed to
equity juetiee and the learned single Judge has failed to
iiinoiice :i;ei”;ie1¢eé;:;t ruie 38(5) and Order 21 Rule 90 cpc and
V -V the of the Supreme Court cited before him has
M ii oifer looked, therefore the finding and reason is
_ hindered as erroneous in law.
6. The finding recorded by the learned singh Judge in
the impugned order that there is no notice to the judgment
\/
debtor before bringing the property for
auction, as required under rule 38(2) of V.
this plea of her and recording a fi1:1.diI1:get)I}
case and setting aside auctionsale ofthe L.
the fact that Vi–respondent’s..::son in the
proceedings and he amountutox the bank
and therefore, the sale of auction is
legal and
7. Tlte. respondent has sought
to justify the learned single Judge,
contending that Jfisingle Judge after referring to
various legala cotiteijfions and examinafion of the record of
d em” Oficer has recorded a finding of
L-.;f2:ici: tliatwthere is violation of statutory rule 38(5) of
‘conducting sale of inzunoveahle property in
3″ ‘ ~ ‘ «. _ _V ‘ -».pub]ic.’a1;otion.
The leaned Additional Government Advocate very
T “clearly submits that the order of the ieamed single Judge
\N~«/
conducting sale, which are relevant znatefiaE«j”Vnfs;ieots
required to be considered by the nevisional
zevisional proceedings initiated by I\!..11esponiiei1tETlierefo1e, ‘A ii
the learned single Judge found fatili
set aside the same in disinisging the ,I’¢3V.l?’i.’.,_Si(§:.n’…,_V§VVC’E:i’Ii0I1.’v,l’
Though the revisional otder is___nl’ ordeie, tliie learned
single Judge has n.gh’ nA1.*-:k_;le2.j_bo3l.)é;e:ffa*niti:)»n that zevisional
authority in its order {he gxozimis and
mcolded 35113:’ purchasers, other
oontessjtvinglv herein have not
contested the -.¢gl1:’5fI*s>tieedi11gs. Further rightly made
obsexviafione’ ‘_Ll:1at..ft11e’- zensons assigned by the revisional
V. _ gxuilioritgr in oniei*”iil1at procedure has been fully complied
sale in public auction, though it is urged
herein not deposited the sale amount Within’
the stipéiiated period. The reasons for rejection of nevision
A “ii filed beyond fime as auction sale had already been
ll eonfizmed and possession has been handed over to the
appellant under the scope available under rule 38(5) of the
Rules certainly amounts to non~i’o n of relevant
aspects of the ease with reference to relevant aspects urged
in the case, the leazned single judge has considered Ruie
38(5) of the Ruies accepted the ease of EV respQnde«ot~V}:)y
assi ‘ various reasons and ‘ tl set aside§V_t1ie”o:V’;£e1*”vof
3 Y _ _ L. ed ‘ .
the revisional authority.
11. Further, the 1earx3,ed sinégie
various decisions of the SI1pI”€;iTiCjbCO1}”1’t.. ‘Raj vs. V’
Gurudilal Singh (AIR 1967 _.j-‘sef;-5b*e)_, Redhy siayam vs.
Shyam.-.Beherivj”S:;ii2:gh {AjI:”~§”1’93*—:….s§c: 2337), Kadiyala Rama
Rao is, _'(200o) 3 sec 37, that once
auction sale is e£§;1cl’e;de<:Hi;"_.'esho111d not be interfered with and
setegside the eiuetion sale as a matter of course unless it is
id estg§b1i.s;r;¢aj;1;a: sale is besieged that material itregtllazities
resofgted injustice to the jucignaezlbdebtor. The
saiiie hes 'Been considered with reference to a judgment,
1989 (1) Kid 125 (in the case of Shantharam
"Sfaj'ra5ppa Angadi Vs. State of Karmztaka), wherein this Court
-«eilramined Rule 38(5) of the Rules and (1997) 8 SCC 22
(S}:1ar1tideviVs. State of Uttar Pradesh), regarding service of
ncztiee under rule 38(2)(a) of the Rules, which is akin to the
‘N/
it
requirement of Rule 285 of the Uttarpradesh
Abolition and Land Reforms Rules, 1952 and
High Court éccision, reported in AIR 1973_N.[:’s:ic1._1(‘}:’.f~
case of Pandurangam Vs. Dasu ‘
issuance of notice on the judmct1t_ tiebtor fog;
decmtai amount constitutes for V
setting aside of a sale o’11._§311 Ordcr 21 Rule
90 CFC, even when A let’ 3816 certificate
issued and put in possession
of oocfion. Extracting relevant
passagcs ‘judgments and legal contentions
at _ps4§faV_:36,. Viiésferring to various decisions of the
Suiatcxxxe. Court of the learned Counsel for the
5;: 35 and applying his mind to the facts and
ieggit pIinctfi§.ici§., axtracted, rule 38(5)(a) and Order 21 Rule
90 cpott and rccoxtieti a finding of fact holding that there is
A “:j”‘;rA:io1é;tion of Rlllfi 38(i2)(a) and application filed under Ruin
.’ 138(5) by IV-respm1dent is not maintainable and there is
‘4 ‘material 1’rrcg11Lan’ty in conducting the sake in reaiising the
award amount by V~rc:spondcnt/ Co-operative Bank and
‘W2
quashed the impugned order and rightly made obsexvation
with reference to attachment of property and relevaizétrttles
and extracted the decisions of the Supreme
and rightly made an observation that earliexj ts :t,’1ott_
adversary in nature between respoo.t1Vefita.v 22.10
quashed the impugned orderjtand aet aside aliictiorij Aéaltefi
by holding that fmdings and 1eco;Vfded.’.=bf;ei}isiona1V
authority are vitiated on aeeount decnoneoust reasons.
Further, the learned to ongn’ ‘ al
file has at paras 71 55 73 regarding
ovenvzitifogé _ noted and therefore did not inspire
confidence ttte ofteaxned single judge to remand the
‘t V. “-matter either fieatttmspondent or respondent N03. The
in this regard at para 80 of the impugned
ordef are by us, we are in respectful agreement with
”._the and reasons recoxdeel on the contentious issues
A f°”a1’ose for his consideration and grantisng the reliefs in
favour of the IV respondent.
\g\M/
12. Further the learned single judge by recording valid
and cogent masons assiwed at para 81 of the ixnpugtoed
order for rejecting the plea of the auction purchaseI;’s.<_:'have
taken possession of the property and developed.
iovestin 1111 «'3 amount, We are acce tin ..s':–1me,as a;.¢»
learned single judge has xightly e:§e1"cisedjiv1iis.::revir:;v:
power to undo the injustice Voaiosed iov. the IV
respect of her property.
13. Accordingly,
Sd/–
Iudge
Sdf-=
Eudge
sNflIek°’~7