- 1 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 10619 OF 2024 (GM-CPC) C/W WRIT PETITION NO. 10789 OF 2024 (GM-CPC) WRIT PETITION NO. 11100 OF 2024 (GM-CPC) IN WP No. 10619/2024 BETWEEN: SMT. ZAINAB BAI W/O. ABBAS ALI BOHRA, AGED ABOUT 53 YEARS, R/AT NO. 119/3-2 (OLD NO. 12/2), GARDEN VILLAGE, 47TH CROSS, 5TH BLOCK, JAYANAGAR, BENGALURU-560 041. …PETITIONER (BY SRI. G.S. VENKAT SUBBA RAO, ADVOCATE) AND: M/S. SWAMY VIVEKANANDA DEVELOPERS A PARTNERSHIP FIRM, HAVING ITS OFFICE AT: FLAT NO.547, FLAT NO.305, S.R. ENCLAVE, SADANANDA NAGAR MAIN ROAD, N.G.E.F. LAYOUT, BYAPPANAHALLI, BENGALURU-560038. REP. BY MANAGING DIRECTOR …RESPONDENT (BY SRI. ANJANEYA A.B., ADVOCATE FOR CAVEATOR/RESPONDENT) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 ORDER DATED 08.02.2024 PASSED ON IA NO. 10 FILED UNDER ORDER 21 RULE 58 OF CPC PASSED BY THE 86TH ADDL. CITY CIVIL JUDGE AND SESSIONS JUDGE, COMMERCIAL COURT AT BANGALORE IN COMMERCIAL EXECUTION NO. 35/2021, VIDE ANNEXURE-A AND ETC., IN WP NO. 10789/2024: BETWEEN: 1. SRI. C. KRISHNAPPA S/O LATE MUNIYAMMA AND CHINNAPPA, AGED ABOUT 51 YEARS, 2. SMT. AKKAYAMMA, D/O LATE MUNIYAMMA AND CHINNAPPA, AGED ABOUT 49 YEARS, 3. SMT. RATHNAMMA, D/O LATE MUNIYAMMA AND CHINNAPPA, AGED ABOUT 47 YEARS, 4. SMT. LAKSHMAMMA, D/O LATE MUNIYAMMA AND CHINNAPPA, AGED ABOUT 45 YEARS, ALL ARE RESIDENTS OF HOMPALAGHATTA VILLAGE, HONAKANALLI POST, ANEKAL TALUK, BANGALORE RURAL DISTRICT. ...PETITIONERS (BY SRI. SHYAMAL MAJUMDAR, ADVOCATE) AND: 1. MS. SWAMY VIVEKANANDA DEVELOPERS A PARTNERSHIP FIRM, REP. BY ITS MANAGING PARTNER, M. PRABHAKAR RAO, OFFICE AT PLOT NO. 547, SR ENCLAVE, SADANANDHA NAGARA MAIN ROAD, - 3 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 NGEF LAYOUT, BAIYAPPANAHALLI, BENGALURU - 560038. REGISTERED UNDER PARTNERSHIP ACT 2. SMT. ZAINAB BAI, W/O ABBAS ALI BOHARA, AGED ABOUT 52 YEARS, R/AT NO. 119/3-2 (OLD NO. 12/2) GARDEN VILLA, 47TH CROSS, 5TH BLOCK, JAYANAGAR BENGALURU - 560041. ...RESPONDENTS (BY SRI. SHYAMAL MAJUMDAR, ADVOCATE) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 26.02.2024 PASSED BY THE LXXXVI ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-87) AT BENGALURU IN COM.EX.NO.35/2021 AT ANNEXURE-A ISSUING SALE PROCLAMATION IN RESPECT OF THE SCHEDULE PROPERTY AND FIXING THE DATE OF SPOT SALE ON 15.04.2024 AND COURT SALE ON 25.04.202 AND ETC. IN WP NO. 11100/2024: BETWEEN: 1. SMT. SHARADAMMA D/O NANJAPPA, AGED ABOUT 45 YEARS, 2. SRI. SAMPATH (WRONGLY SPELLED AS SAMPTH IN IA NO.15 AND 16 IN COM.EX. NO.35/2021) D/O NANJAPPA, AGED ABOUT 45 YEARS, 3. SMT. PREMA D/O NANJAPPA, AGED ABOUT 45 YEARS, - 4 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 4. SMT. SUMITHRA D/O NANJAPPA, AGED ABOUT 45 YEARS, PETITIONERS 1 TO 4 ARE RESIDENTS OF MALLUR VILLAGE, CARMALARAM COLLEGE POST, SARJAPURA MAIN ROAD, VARTHUR HOBLI, BANGALORE SOUTH TALUK. 5. SRI. NARAYANAPPA S/O LATE MUNISWAMY, AGED ABOUT 53 YEARS, RESIDENT OF MULLURU COLONY, VARTHUR HOBLI, CARMALARAM POST, BANGALORE EAST TALUK. 6. SMT. THAYAMMA D/O LATE MUNISWAMY, AGED ABOUT 38 YEARS, RESIDENT OF HUNDENAHALLI VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE RURAL DISTRICT. 7. SMT. NANJAMMA W/O LATE MUNISWAMY, AGED ABOUT 66 YEARS, BIDARA GUPPE VILLAGE AND POST, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE RURAL DISTRICT. ...PETITIONERS (BY SRI. A. DHARMESH, ADVOCATE FOR SRI. SATHEESH H.K., ADVOCATE) AND: 1. MS. SWAMY VIVEKANANDA DEVELOPERS A PARTNERSHIP FIRM, OFFICE OF PLOT NO.547, SR ENCLAVE, SADANANDHA NAGARA MAIN ROAD, NGEF LAYOUT, BAIYAPPANAHALLI, BENGALURU-560038 2. SMT. ZAINAB BAI W/O ABBAS ALI BOHARA, - 5 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 AGED ABOUT 52 YEARS, R/AT NO. 119/3-2 (OLD NO.12/2) GARDEN VILLA, 47TH CROSS, 5TH BLOCK, JAYANAGAR, BENGALURU-560041 ...RESPONDENTS (BY SRI. ANJANEYA A.B., ADVOCATE FOR CAVEATOR/RESPONDENT NO.1) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 08.02.2024 PASSED BY THE LXXXVI ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-87) AT BENGALURU IN COM.EX.NO. 35/2021 AT ANNEXURE-A REJECTING IA NO. 15 AND 16 FILED BY THE PETITIONERS HEREIN. THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R. NATARAJ ORAL ORDER In W.P.No.10619/2024, the judgment debtor in Com.Ex No.35/2001 has challenged an order dated 08.02.2024 passed by the LXXXVI Additional City Civil and Sessions Judge, Bengaluru, by which an application (I.A.No.IX) filed by her under Order XXI Rule 58 read with Section 151 of Civil Procedure Code (hence referred to as 'CPC' for short) was rejected. She has also challenged an order dated 08.02.2024 by which, an application (I.A.No.X) filed by her under Order XXI Rule 59 read with Section 151 of CPC was rejected. She has - 6 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 also challenged an order dated 26.02.2024 issuing sale proclamation to sell the attached property. 2. In W.P.No.10789/2024 the petitioners have challenged an order dated 26.02.2024 passed by the LXXXVI Additional City Civil and Sessions Judge, Bengaluru issuing sale proclamation and for a direction to consider their application to be impleaded in Com.Ex.No.35/2021 and objections filed by them under Order XXI Rule 97(1) read with Section 151 of CPC for sale of the immovable property at an auction. 3. The petitioners in W.P.No.11100/2024 have challenged an order dated 08.02.2024 rejecting their applications (I.A.Nos.15 and 16) filed in Com.Ex.No.35/2021. 4. (i) The facts relevant for the purpose of these writ petitions are that the respondents in all these writ petitions had initiated arbitration proceedings in A.C.No.77/2016 against the petitioner in W.P.No.10619/2024 which culminated in an award dated 04.01.2017 wherein the petitioner in W.P.No.10619/2024 was directed to pay a sum of Rs.1,10,00,000/- along with interest at 10% p.a. within a period of 30 days, failing which, interest at the rate of 18% p.a. - 7 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 was applicable. This award was sought to be enforced in Com.Ex.No.35/2021. (ii) During the course of the proceedings, the property belonging to the judgment debtor was attached on 11.07.2022. Following this, proceedings were taken out for proclamation of sale by public auction and a sale notice was ordered to the judgment debtor for settling the terms of proclamation. The sale notice returned unserved with an endorsement 'door locked'. Though, intimation was left, the same was not claimed and it was learnt that the judgment debtor had left to Rajasthan. Thereafter on 30.11.2022, the sale notice was affixed on the outer door of the residence of the judgment debtor. The advocate for judgment debtor filed a memo before the executing Court on 30.11.2022 admitting that the decree holder had served the notice on him on 09.11.2022 and that he tried to communicate the same to judgment debtor over phone, but he could not establish contact. In view of the fact that sufficient notice was given to the judgment debtor about the sale notice, the Court held that the notice of the sale was sufficient and proceeded to auction the attached property in terms of the order dated 30.11.2022. - 8 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 (iii) Thereafter the judgment debtor filed applications under Order XXI Rule 58 and Order XXI Rule 59 of CPC respectively to adjudicate his objections against bringing the attached property for sale. It was contended by the judgment debtor that (a) she was not served with the sale notice; (b) that the property attached was the subject matter of a revenue proceeding under Section 136(3) of the Karnataka Land Revenue Act and also that a writ petition was pending consideration in that regard in W.P.No.2688/2015. (c) that the Regional Commissioner had initiated certain other proceedings. Therefore it was contended that the property was not available to be attached and that the Court was not entitled to put up the property for auction which was not clear in all respects. (iv) The said applications were rejected by the Trial Court in terms of the impugned order dated 08.02.2024. Following this, the executing Court passed an order dated 26.02.2024 issuing a sale proclamation. The petitioners in W.P.No.10619/2024 have challenged the order dated 08.02.2024 rejecting their applications as well as the sale proclamation dated 26.02.2024. The petitioners in W.P.No.10789/2024 have challenged the order dated - 9 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 26.02.2024 issuing sale proclamation and have also sought for a direction to consider their application to be impleaded in Com. Ex.No.35/2021 and to consider their objections to execution petition. 5. The petitioners in W.P.No.11100/2022 who purportedly were signatories to the sale deed executed in favour of the judgment debtor in respect of the attached property filed applications (I.A.Nos.15 and 16) to come on record and oppose execution petition, which were also rejected in terms of the order dated 08.02.2024, hence, the petitioners are therefore before this Court challenging the aforesaid order. 6. The learned counsel for the petitioner in W.P.No.10619/2024 submits that the service of sale notice is mandatory and any sale brought about without serving the sale notice on the owner of the property is illegal and not merely irregular and therefore, the proceedings to sell the attached property deserves to be set aside. In support of his contention, he relied upon the judgment of the Hon'ble Apex Court in the case of Mahakal Automobiles and another Vs. Kishan Swaroop Sharma - 2008 (13) SCC 113. He also contends - 10 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 that it was incumbent upon the executing Court to issue appropriate notice to the judgment debtor before determining the base price at which the property was sought to be auctioned. He contends that the valuation arrived at by the executing Court was not based on any inputs, but was based on inputs procured by the Court Ameen from local enquiries. Thus, he contends that the proceedings leading up to the sale of the attached property deserves to be interfered with. He also contends that the petitioner had requested the executing Court to decide the objections against bringing the attached property for sale. He contends that it was incumbent upon the executing Court to peruse the objections of the petitioner more particularly, in the light of the fact that certain revenue proceedings were initiated against the property that was attached by the Deputy Commissioner under Section 136(3) of the Karnataka Land Revenue Act, which was questioned by the petitioner in W.P.No.2688/2015. He therefore contends that the attached property was not free from all encumbrances and therefore the Court could not sell a property that was not clear in all respects. He submits that on the contrary the executing - 11 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 Court rejected the applications by a perfunctory order and therefore, he prays that the impugned order be set aside. 7. The learned counsel for the petitioners in W.P.No.10789/2024 contends that the suit for partition and separate possession is filed in O.S.No.124/2013 where the petitioners had also staked their claim to their share in respect of the attached property and therefore he contends that the petitioners are entitled to object the execution of the award. He contends that the executing Court has not considered the applications filed by the petitioners but has proceeded to issue sale proclamation dated 26.02.2024. He further contends that there is an interim injunction not to alienate the attached property, to which the judgment debtor was a party. He therefore contends that without considering the applications filed by the petitioners as well as objections filed to the execution petition, the Court could not have issued a sale proclamation. He also contended that the petitioners were in possession of the attached property and therefore it was necessary for the executing Court to determine the questions relating to the property that was attached. - 12 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 8. The petitioners in W.P.No.11100/2024 contended that they were parties in O.S.No.124/2013 and that they too were interested in the suit. They denied the title of the judgment debtor as well as the sale deed executed in her favour. They contended that the executing Court without considering the claim of the petitioners had rejected the applications by a cursory order and therefore prays that the proceedings be set at naught by directing the executing Court to reconsider the applications filed by the petitioners. 9. The writ petitions are opposed by the decree holder who contends that the judgment debtor has received certain payments under a memorandum of understanding for development of the property that was attached. However on coming to know that the property was mired in litigation, the decree holder demanded the judgment debtor to refund the amounts received. On failure of the judgment debtor to refund the amount, the decree holder initiated proceedings for arbitration of dispute which culminated in an award dated 04.01.2017. He therefore, contends that from the year 2017, the decree holder was attempting to recover the amount but the decree holder was placing stumbling blocks in the way of - 13 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 recovery. He contends that the sale notice was sought to be served on the judgment debtor and she avoided the same repeatedly, which compelled the Court to direct affixture of sale notice on the house of the judgment debtor. Thereafter, the advocate for the judgment debtor was informed about the sale notice and he was directed to communicate the same to the judgment debtor. The advocate for the judgment debtor accepted that the copy of the sale notice was served on him and that he tried to inform the judgment debtor, but could not establish contact. He contends that the executing Court therefore had no other option than to treat the service of sale notice to the judgment debtor as sufficient and proceeded to bring the property for auction on 21.01.2023. He contends that before the auction was held, the execution petition was advanced by the judgment debtor who filed applications (I.A.Nos.9 and 10) under Order XXI Rule 58 and Order XXI Rule 59 of CPC. The execution petition was then adjourned to 23.01.2023 on which day, the Court noticed that the judgment debtor had allowed the decree holder to proceed with the sale proclamation but was later objecting to it. Therefore, it held that the judgment debtor was responsible for all the costs and - 14 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 consequences and it directed the judgment debtor to pay a sum of Rs.1,58,200/- to the decree holder towards the cost of the execution. The judgment debtor then deposited the sum of Rs.1,58,200/- by a demand draft consequent to which, the sale notice issued fixing the spot sale on 23.01.2023 was recalled. However the order of attachment was continued until further orders. Thereafter the executing Court considered the applications filed by the judgment debtor and held that the judgment debtor had purchased the attached property in terms of a lawful sale and therefore, held that the judgment debtor cannot come in the way of the property being proceeded against for recovery of the amount awarded under the award. He contends that after the rejection of the applications filed by the judgment debtor, the Court had issued a sale proclamation and the same is now challenged by the judgment debtor. 10. In so far as W.P.No.10789/2024 is concerned, learned counsel for the decree holder contended that though a suit is filed in O.S.No.124/2013, there is no impediment to proceed against the property, as the purchaser who had purchased the property had stepped into the shoes of the judgment debtor. He contends that the suit in O.S.No.124/2013 - 15 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 is still not decided and hence, the contentions urged by the petitioners in the application to implead them as well as objections filed to Com.Ex.No.35/2021 are too premature to be considered in Com.Ex.No.35/2021. He contends that in the event, the petitioners succeeded in the suit they are entitled to the reliefs that may be granted in the suit which however cannot come in the way of proceeding against the attached property. 11. In so far as W.P.No.11100/2024, the learned counsel for the decree holder contends that these petitioners have no locus standi to challenge the proceedings in execution petition, as they were parties to the sale deed executed in favour of the judgment debtor, in respect of the property that was attached. He therefore, contends that the executing Court was justified in not entertaining the applications filed by the petitioners. 12. I have considered the submissions made by the learned counsel for the petitioners and the learned counsel for the caveator/respondent No.1 in all these petitions. - 16 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 13. The judgment debtor had purchased the property bearing Sy.No.44 of Mullur village, Varthur hobli, Bengaluru South Taluk from Muniyamma and others in terms of a sale deed dated 04.08.2003. The judgment debtor claimed that the predecessor of her vendor was granted the land by the committee constituted by the State Government for regularisation of unauthorised cultivation. However, it was contended that the boundaries of the property were not fixed by conducting proper phodi and durasth. He claimed that proceedings were initiated under Section 136(3) of the Karnataka Land Revenue Act in respect of this property and the same was challenged by the judgment debtor in W.P.N.2688/2015 which is still pending consideration. The executing Court after being informed about the pendency of the proceedings under Section 136(3) of the Karnataka land Revenue Act and the pendency of W.P.No.2688/2015 as well as pendency of the suit in O.S.No.124/2013, must have ensured to mention them in the proclamation notice, as any purchaser cannot be taken by surprise about the litigation that is pending. In addition, the executing Court must have taken steps for securing the valuation of the property before proceeding for - 17 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 sale of the attached property, which is mandatory under Order XXI Rule 66(e) of CPC which reads as follows: "The value of the property as stated by the decree holder and the value of the property as stated by the judgment debtor. It also mentions that "provided further that nothing in this rule shall be construed as requiring the Court to enter the proclamation of sale its own estimation of the value of the property, but the proclamation shall include the estimate given by either or both of the parties." Rule 129 of the Civil Rules of Practice, 1967 mandates the procedure to be complied for proclamation of sale under Order XXI Rules 66 and 67 CPC which reads as follows: "129. An applicant for sale of immovable property shall along with the statement required under sub-rule(3) of Rule 66 of Order XXI of the Code, also file one or more affidavits stating the interest of the judgment-debtor in the property proposed to be sold and whether any person other than the judgment-debtor has any, and if so, what interest therein: Provided that the Court may, if it thinks fit, require an applicant to produce a certificate from the office of the Registrar of Assurances (Sub-Registrar) of the District, showing whether the property is subject to any encumbrance." - 18 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 14. In the case on hand, it appears that the executing Court had relied upon the report of the Court bailiff regarding the valuation of the property and he in turn had arrived at a value based on local enquiries and not based upon the procedure prescribed under Rule 129 of the Karnataka Civil Rules of Practice, 1967. Therefore, though the order dated 08.02.2024 passed by the executing Court rejecting the applications filed by the judgment debtor does not warrant interference, however, the order dated 26.02.2024 issuing the sale proclamation without conforming to the above requirements, was not proper and to that extent the impugned order dated 26.02.2024 warrants interference. 15. In so far as the petition filed in W.P.No.10789/2024 is concerned, these petitioners claimed to have filed O.S.No.124/2013, claiming partition of their share in the attached property. As the suit is yet to be decided and the right of the petitioners is yet to be ascertained, the petitioners cannot file an application to be impleaded in execution proceedings as they have no right to object the execution petition. - 19 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 16. Consequently, the petitioners cannot compel the executing Court to implead them in proceedings and/or to consider their objections filed in execution petition. Hence, the petition filed by the petitioners in W.P.No.10789/2024 does not merit consideration. 17. In so far as W.P.No.11100/2024 is concerned, it is not in dispute that the petitioners were signatories to the sale deed executed in favour of the judgment debtor in respect of the property that was attached and brought for sale. Therefore, they have no subsisting proprietary interest to object the execution of the award. Consequently the impugned order passed by the executing Court rejecting their application does not merit interference. 18. In view of the above, the following order is passed: ORDER (a) W.P.No.10619/2024 is allowed in part and the order dated 26.02.2024 passed by the executing Court issuing a sale proclamation is set aside. The executing Court is directed to - 20 - NC: 2025:KHC:10759 WP No. 10619 of 2024 C/W WP No. 10789 of 2024 WP No. 11100 of 2024 comply the provisions of Order XXI Rules 66 and 67 of CPC R/w Rule 129 of Karnataka Civil Rules of Practice and also to ensure that the pending proceedings in W.P.No.2688/2015 and O.S.No.124/2013 are mentioned in the sale proclamation. However, the attachment of the property is not disturbed. (b) W.P.10789/2024 and W.P.No.11100/2024 are dismissed. Sd/- (R. NATARAJ) JUDGE HJ List No.: 1 Sl No.: 34