- 1 - NC: 2025:KHC:11325 WP No. 11090 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION No. 11090 OF 2018 (GM-CPC) BETWEEN: 1. B OBEDULLA AGED ABOUT 76 YEARS S/O LATE B.BUDENSAB 1a. B MUSTAF KAMAL PASHA AGED ABOUT 56 YEARS S/O LATE B OBEDULLA. 1b. B MOHAMMED BUDEN AGED ABOUT 50 YEARS S/O LATE B OBEDULLA. 1c. B HUSSAIN MIYA AGED ABOUT 48 YEARS S/O LATE B OBEDULLA. ALL ARE RESIDENT OF 170/2, IV CROSS, III MAIN, VINOBANAGAR DAVANAGERE - 577 004. (LRs ARE BROUGHT ON RECORD AND ACCORDINGLY AMENDED THE CAUSE TITLE AS PER THE COURT ORDER DATED 19.3.2025.) …PETITIONERS (BY SRI VINAYA KEERTHY M, ADVOCATE) AND: 1. PRAMILA AGED ABOUT 56 YEARS W/O LATE N KOTRAPPA Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:11325 WP No. 11090 of 2018 2. RAVINDRA AGED ABOUT 40 YEARS S/O LATE N.KOTRAPPA. 3. PRABHAKARA AGED ABOUT 36 YEARS S/O LATE N.KOTRAPPA. 4. SHOBHA AGED ABOUT 33 YEARS D/O LATE N.KOTRAPPA. SL.NOs.1-4 ARE RESIDING AT #3371/27B 14TH CROSS, II MAIN VINOBANAGAR DAVANAGERE – 577 006 5. MANJAMMA AGED ABOUT 60 YEARS W/O LATE N.KOTRAPPA 6. K.SHIVAKUMAR AGED ABOUT 44 YEARS S/O LATE N.KOTRAPPA. 7. KRISHNA MURTHY AGED ABOUT 30 YEARS S/O LATE N.KOTRAPPA. 8. SADASHIVA AGED ABOUT 29 YEARS S/O LATE N.KOTRAPPA. 9. DEVIKARANI AGED ABOUT 28 YEARS D/O LATE N.KOTRAPPA. SL. Nos.5-9 ARE RESIDING AT D.No.204 8TH CROSS, LABOUR COLONY (LABOUR QRS.) DAVANAGERE - 577 002. - 3 - NC: 2025:KHC:11325 WP No. 11090 of 2018 10. H.THIPPANNA AGED ABOUT 61 YEARS S/O H.GURUSIDDAPPA #1796, I CROSS, II MAIN VINOBANAGAR DAVANAGERE - 577 006. …RESPONDENTS (R1, R2, R6 AND R10 SERVED AND UNREPRESNTED V/O DTD. 19.3.2025 NOTICE TO R3, R4, R5, R7, R8 AND R9 H/S) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED:29.08.2013 VIDE ANNX-F PASSED BY THE LEARNED II ADDITIONAL SENIOR CIVIL JDUGE, DAVANAGERE IN EP.155/03 IN I.A.XXVIII AND QUASH THE IMPUGNED ORDER DATED 04.09.2017 VIDE ANNX-L PASSED BY THE LEARNED DISTRICT & SESSIOSN JUDGE, DAVANAGERE IN MA 24/14 IN I.A.1 AND ETC., THIS PETITION COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER 1. Petitioner who is the decree holder in execution proceedings in E.P. No. 155/2003 pending on the file II Additional Senior Civil Judge, Davanagere, is before this Court being aggrieved by the order dated 29.08.2013 passed on I.A. No. XXVIII filed by the respondents herein by which the executing Court has declined to confirm the - 4 - NC: 2025:KHC:11325 WP No. 11090 of 2018 auction sale. Petitioner herein had preferred Miscellaneous Appeal in MA No. 24/2014 against said order before the District and Sessions Judge, Davanagere which also was dismissed on 04.09.2017 on the ground of limitation. Challenging these two orders the petitioner is before this Court. 2. Petitioner had earlier filed a suit in O.S. No. 168/1997 for specific performance in which decree was passed directing refund of amount of Rs.5,49,337/-. Seeking execution of the same aforesaid execution proceedings in E.P. No. 155/2003 was filed. Petitioner had sought for recovery of the decreetal amount by auctioning the site measuring 20 X 50 belonging to judgment-debtor. It appears two attempts were made to sell the said property by public auction dated 10.11.2011 and 17.11.2011 wherein the highest bid amount stated to have been offered was Rs.10,50,000/- and Rs.10,55,000/- respectively. However said auction sales were not confirmed as the bidders had not deposited the amount. Accordingly auction was once again held on 28.05.2012 by - 5 - NC: 2025:KHC:11325 WP No. 11090 of 2018 which time the decree holder had made an application under order 21 Rule 72 of CPC seeking leave of the executing Court to participate in the said auction which was granted. Decree holder was the highest bidder at Rs.9,50,000/- which was accepted by the Court and he had even deposited the amount before the executing Court. When the case was posted for confirmation of the sale, the executing Court noticing the pendency of Regular Appeal in R.A. No. 93/2011 had issued notice to interested persons and on receipt of the said notice the respondents herein filed the above application under Order XXI Rule 90 read with Section 151 of CPC objecting for confirmation of sale. Evidence on the said application was lead. The executing Court had framed the following point for its consideration: “Whether the applicant proves that there is a material irregularity in publishing or conducting the cell which resulted in substantial injury to him?” - 6 - NC: 2025:KHC:11325 WP No. 11090 of 2018 3. After adverting to the averments made in the application and the evidence, the executing Court came to the conclusion that there are indeed material irregularities in conducting the sale. Besides, the bid amount was inadequate. Accordingly allowed the application and set aside the auction sale. Being aggrieved the same, the petitioner herein preferred Miscellaneous Appeal in M.A. 24/2014 before the District and Sessions Judge at Davanagere. However, there appears to have been a delay of 7 months 21 days in preferring the said appeal. The Appellate Court, declining to condone the delay dismissed the said appeal by order dated on 04.09.2017. Being agreed with the same, the present petition. 4. Counsel for the petitioner taking this Court through the records submits that the first two attempts to conduct the public auction did not yield the desired result, accordingly in the third auction, with the permission/leave of the Executing Court the petitioner being the decree holder participated in the public auction and he remained the highest bidder at Rs.9,50,000/- which he had - 7 - NC: 2025:KHC:11325 WP No. 11090 of 2018 deposited before the executing Court as far back as in the year 2012. However, due to certain technical reasons, the executing Court has declined to confirm the said sale which has caused prejudice to the petitioner who despite having obtained the decree as far back as in the year 2003 has been waiting to realise the fruits of the decree. He submits that irregularities found by the executing Court are technical in nature which would not vitiate the auction process and hence seeks for allowing the petition and to confirm the sale. 5. Heard. Perused the records. 6. The executing Court has found, at paragraph No. 14 of the order, the following irregularities : a. that as per Rule 67 of Order XXI the proclamation was not issued as contemplated thereunder, i.e., the proclamation ought to have been made in the office of the Corporation of Davanagere within whose jurisdiction the property is situated; - 8 - NC: 2025:KHC:11325 WP No. 11090 of 2018 b. the mere publication of the sale proclamation on the notice board of the Corporation was an irregularity; c. that on the earlier occasion the highest bid amount procured was Rs.10,50,000/-, however after an year subsequently the highest bid amount was only Rs.9,50,000/- which was a lower price and was inadequate. 7. Thus on these counts the executing Court has found the reasons not to confirm the auction sale. The executing Court has further found that if the property fetches higher rate the applicant would be benefited in ratable distribution of the sale proceeds. The executing Court has also taken note of the contention raised by the objector that the property would fetch more than Rs.15,00,000/-. This Court do not see any error committed by the Executing Court. 8. At this juncture counsel for petitioner submits that if the executing Court is directed to revive the execution petition and to conduct fresh public auction - 9 - NC: 2025:KHC:11325 WP No. 11090 of 2018 within the timeline prescribed and reserve liberty to the petitioner to participate in the public auction, the purpose of the petition would be served. 9. Submission is taken on record. 10. Petition is disposed of. The Executing Court is directed to revive the execution petition, fix the date for public auction and if an application is made by the petitioner seeking for leave to participate in the public auction, the same to be considered in accordance with law and proceed thereafter. Sd/- (M.G.S. KAMAL) JUDGE LRS List No.: 1 Sl No.: 25