- 1 - NC: 2025:KHC:3953 WP No. 31985 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MRS JUSTICE K.S. HEMALEKHA WRIT PETITION NO.31985 OF 2017 (CS-DAS) BETWEEN: 1. B. PALAKSHAPPA AGED ABOUT 68 YEARS, S/O. B. KURUVATTEPPA, RESIDING AT SRI BASAVESHWARA RICE MILL COMPOUND, SHIMOGA ROAD, MAJENHALLI, HARIHARA, DAVANAGERE – 577601. 2. M/S. BASAVESHWARA RICE MILLA HAVING ITS REGISTERED OFFICE AT SHIMOGA ROAD, HARIHARA – 577601 REPRESENTED HERE IN BY ITS PARTNER SRI B. PALAKSHAPPA. ... PETITIONERS (BY SRI KASHYAP N. NAIK, ADVOCATE (V/C)) AND: 1. DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES, DAVANGERE, DISTRICT OFFICES BUILDING, ROOM NO.38 ‘B’ BLOCK, 1ST FLOOR, KAROOR INDUSTRIAL AREA, P.B. ROAD, DAVANAGERE–577 005. 2. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, DAVANAGERE, DAVANAGERE SUB DIVISION, 13TH CROSS, TARALABALU BADAVANE, DAVANAGERE – 577005. 3. THE DAVANGERE URBAN CO-OPERATIVE BANK LTD., Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:3953 WP No. 31985 of 2017 HAVING ITS REGISTERED OFFICE AT P.B. ROAD, MAHATMA GANDHI CIRCLE, DAVANGERE, REPRESENTED HEREIN BY ITS GENERAL MANGER–577005. 4. MR. B.P. ASHOK AGED ABOUT 39 YEARS, S/O. B. PALAKSHAPPA, HAVING HIS PALCE OF WORK AT M/S. ACC LTD., BEHIND K.B. KULKARNI HOSPITAL, DR. SIMILINGANNA ROAD, KOPPALA – 582231. 5. MR. B.P. ARUN AGED ABOUT 37 YEARS, S/O. B. PALAKSHAPPA, RESIDING AT K.B.L. GARDENIA, VIJAYANAGAR IV STAGE, JANAVADI POST, MYSORE. 6. MR. B.P. ARAVIND AGED ABOUT 35 YEARS, S/O. B. PALAKSHAPPA, RESIDING AT SRI BASAVESHWARA RICE MILL COMPOUND, SHIMOGA ROAD, HARIHARA – 577601. ... RESPONDENTS (BY SRI YOGESH D. NAIK, AGA FOR R-1 AND R-2; SRI T. BASAVARAJ, ADVOCATE FOR C/R-3; R-4 TO R-6 – SERVED UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 25.08.2008 PASSED BY THE RESPONDENT NO.2 IN PROCEEDINGS AT ANNEXURE-A AND CONSEQUENTLY QUASH THE ATTACHMENT NOTICE DATED 10.06.2016 ISSUED BY THE RESPONDENT NO.2 AT ANNEXURE-C AND THE ORDER CONFIRMING THE ATTACHMENT, DATED 15.05.2017 PASSED BY THE RESPONDENT NO.1 IN APPEAL NO.3/2016-17 AT ANNEXURE-B. THIS WRIT PETITION COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA - 3 - NC: 2025:KHC:3953 WP No. 31985 of 2017 ORAL ORDER The petitioner is seeking for the following prayers: (a) Quash the order dated 25.08.2008 passed by the respondent No.2 in proceeding bearing No.DR/DVG/16/2008-09 (Annexure A) and consequently quash the attachment notice dated 10.06.2016 issued by the respondent No.2 (Annexure C) and the order confirming the attachment dated 15.05.2017 passed by the respondent No.1 in Appeal No.3/16-2017 (Annexure B) and (b) Grant such other relief as this Hon’ble court may deem fit in the facts and circumstances of the case, in the interest of justice and equity. 2. Today 28.01.2025 matter is listed for further hearing. 3. Heard the learned counsel for the petitioner further and perused the material on record. Learned counsel appearing for respondent No.3 has consistently remained absent before this court. 4. The petitioner has called in question the order passed by the respondent No.2 and also to quash the - 4 - NC: 2025:KHC:3953 WP No. 31985 of 2017 attachment notice issued by respondent No.2 at Annexure- C dated 10.06.2016. 5. The brief facts of the case are that: Petitioner No.1 is the owner of the agricultural property bearing Sy.No.23/5 and the petitioner No.2 is M/s Basaveshwara Rice Mill, a partnership firm wherein the petitioner No.1 is one of the partners. In the year 1998-99, the firm obtained loan of Rs.9 Lakhs from Davanagere Urban Cooperative Bank – respondent No.3 and mortgaged property bearing Sy.No.23/5, Mahajenahalli Village, Harihara Taluk, Davanagere District to the extent of 22,500 square feet in favour of respondent No.3. 6. It is the case of the petitioner that petitioner received no communication regarding the re-payment or any legal action from respondent No.3; that in the year 2008, this petitioner No.2 received an order dated 25.08.2008 regarding auction of the mortgaged property due to the non payment, however, the petitioners received an attachment notice at Annexure-C for a different - 5 - NC: 2025:KHC:3953 WP No. 31985 of 2017 property i.e., Sy.No.57/P2, which was not the mortgaged property. Appeal was preferred by the petitioners, which came to be dismissed by order dated 15.05.2018 at Annexure-B. 7. Learned counsel for the petitioner submits that the attached property by respondent No.2 is a agricultural property of petitioner No.1 bearing Khatha No.682, Sy.No.57/P2 measuring 10 acres and 25 guntas, which is not the mortgaged property and the petitioner challenged this notice by filing an appeal in Appeal No.3/2017 before the Deputy Registrar of Cooperative Society. The said appeal came to be dismissed confirming the order of attachment notice dated 10.06.2016. 8. The statement of objections have been filed by the respondent stating that it has become impracticable to proceed against the mortgaged properties of the petitioner as the is involved in a checkered history of litigation. It is the contention that the pendency of the litigation in respect of the mortgaged property is been reflected in - 6 - NC: 2025:KHC:3953 WP No. 31985 of 2017 column No.11 of the RTC for the year 2022-23 and the respondent is unable to proceed to attach the properties of the petitioner, which was mortgaged and the attachment order passed by the sale officer is in the light of the recovery of the amount, which has been due by the petitioner. 9. To the said objections raised by the respondent, it is the submission made by the petitioner that the entire Sy.N.23/5, which is a mortgaged property is more than 12 to 13 acres and the petitioner has mortgaged the property to the extent of 22,500 square feet, which was the occupancy rights granted in favour of the petitioners and the litigation which the respondent states pertains to other tenants and not pertaining to the mortgaged property by the petitioner. 10. This court has carefully considered the contentions urged and the material placed on record. - 7 - NC: 2025:KHC:3953 WP No. 31985 of 2017 11. The challenge to award passed at Annexure-A, there is availability of alternative efficacious remedy of appeal and thus challenge to the impugned award is unsustainable. On perusal of the impugned award at Annexure-A and the impugned order of attachment notice Annexure-C indicates that Annexure-A, the impugned award is in respect of the mortgaged property described in the schedule of the award and the impugned attachment notice is completely and totally different property, which was not the subject matter of the award at Annexure-A. The legal action like one of attachment should concerned property specifically mortgaged as security for the loan. In the circumstances, the impugned attachment notice at Annexure-C dated 10.60.2006, which was confirmed by the appellate authority vide Annexure-B dated 15.05.2017 is illegal, arbitrary and without jurisdiction and went without authority of law and the same deserves to be quashed and this court pass the following: O R D E R (i) The writ petition is allowed. - 8 - NC: 2025:KHC:3953 WP No. 31985 of 2017 (iii) The impugned order at Annexure-B dated 10.06.2016 and the attachment notice dated 15.05.2017 issued by respondent No.2 is hereby quashed. (iv) It is needless to observe that liberty is reserved in favour of the respondent No.2 to proceed against the property described in the schedule of the award at Annexure- J dated 25.08.2008 passed by respondent No.2, which is the subject matter of the award. (v) The challenge in the present petition in respect of Annexure–A order dated 25.08.2008 is hereby rejected. Sd/- ________________________ JUSTICE K.S. HEMALEKHA SS List No.: 1 Sl No.: 28