- 1 - NC: 2025:KHC-D:6455 MFA No. 100109 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 100109 OF 2022 (CPC) BETWEEN: SRI. DAYANAND DURGA NAIK, AGE 50 YEARS, OCC: SERVICE, R/O. SEA BIRD COLONY, TODUR, KARWAR-581324. - APPELLANT (BY SRI. VENKATESH M. KHARVI, ADVOCATE) AND: 1. THE DAIVADNYA CO-OP CREDIT SOCIETY LTD, KARWAR REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, SHRI. KIRAN BALAKRISHNA PAWASKAR, AGE 52 YEARS, R/O. KARWAR-581324. 2. SANTOSH KESHAV NAIK, AGE 57 YEARS. OCC: SERVICE. R/O. FISHERIES COLONY, HABBUWADA, KARWAR-581324. 3. BALAKRISHNA DATTA KUDALKAR, AGE 53 YEARS, OCC: SERVICE, R/O. NEW K. H. B. COLONY, HABBUWADA, KARWAR-581324. 4. SHRI. PERU GOVIND GOUDA, AGE 48 YEARS, OCC. FIREMAN, R/O. SEA BIRD COLONY, TODUR, KARWAR-581324. - RESPONDENTS (BY SRI. S. H. MITTALKOD, ADVOCATE FOR R1 & R4; NOTICE TO R2 AND R3 ARE SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1 OF CPC, PRAYING TO SET ASIDE THE ORDER DATED 19.11.2021 PASSED IN EXECUTION PETITION NO.35/2017 ON I.A. NO.2 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE, KARWAR AND ETC. Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench. - 2 - NC: 2025:KHC-D:6455 MFA No. 100109 of 2022 THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This appeal is by the judgment debtor against the order dated 19.11.2021 passed on I.A. No. 2 filed under Order 21 Rule 89 r/w Sec. 151 of CPC by the learned Prl. Sr. Civil Judge, Karwar in Execution Case No. 35/2017. 2. Brief history of this case is that the appellant herein has obtained loan of Rs.8 lakhs from the decreeholder, Daivajna Co-operative Credit Society (for short, ‘Society’) agreeing to repay with interest at the rate of 8% p.a. He committed default and the matter was referred to Arbitration. Learned Arbitrator by award dated 08.11.2016 awarded Rs.8,91,030/- with interest at the rate of 12% p.a. To execute the said award, the Society filed Execution Case No. 35/2017 on the file of Prl. Sr. Civil Judge, Karwar. Steps were taken for recovery of the amount but the Society was unsuccessful in recovering the - 3 - NC: 2025:KHC-D:6455 MFA No. 100109 of 2022 amount. Thereafter the Society auctioned the mortgaged property and sold it. The procedure prescribed under Order 21 was followed while selling the said property in public auction. Respondent No.4 herein was the successful bidder in the auction and he agreed to purchase the property for Rs.14,45,000/-. The executing Court accepted the said bid and posted the matter 27.01.2021 for confirmation of the sale. In the meanwhile the successful bidder, i.e., respondent No.4, has deposited Rs.4,81,661/- on 26.08.2021 and balance amount of Rs.9,63,333/- on 17.09.2021. 3. The records produced by the appellant reveal that vide order dated 25.08.2021 the executing Court ordered the auction purchaser to deposit 1/3rd of the bid amount, i.e., Rs.4,81,661/- immediately after the bid and remaining 2/3rd of the bid amount shall be deposited within 30 days. There is no dispute that within 30 days the said amount was deposited. Thereafter the judgment debtor, i.e., the appellant herein, filed an application under - 4 - NC: 2025:KHC-D:6455 MFA No. 100109 of 2022 Order 21 Rule 89 read with Sec. 151 of CPC for setting aside the sale. The said application annexed with an affidavit, wherein it is contended that he had Rs.6 to 7 lakhs in his bank account and he is ready to deposit the said amount to the decreeholder and he is also ready to pay the remaining amount by obtaining loan from any other financial institution. The mortgaged property is the only property belonging to him and it was his residential house. If it is sold in public auction his family will suffer. With these reasons he has prayed to set aside the sale. 4. Objections were filed by the decreeholder and after hearing both the parties the executing Court rejected the application on two grounds, that the application was filed beyond the period of 60 days, as provided under the Limitation Act and another ground is the judgment debtor did not comply the provision of Order 21 Rule 89 CPC. Same is challenged by the appellant in the present appeal on the grounds mentioned in the appeal memo. 5. Arguments are heard on behalf of both the parties. - 5 - NC: 2025:KHC-D:6455 MFA No. 100109 of 2022 6. The learned counsel for the appellant mainly contends that auction purchaser did not deposit the amount within 60 days as per Order 21 Rule 84 and 85 CPC. Therefore the said auction would automatically stand cancelled due to violation of the said provision and he was not given proper opportunity when the matter was referred to Lok Adalath to deposit the amount. 7. In support of his contention he advanced marathon arguments and relied on the following judgments of the Co-ordinate Bench of this Court, Division Bench of this Court as well as the Hon’ble Apex Court. 1. W.P. No. 7755/2016 – Sri M.R. Nageshwar V. Smt. Lalithamba and another (D.D. 28.02.2024); 2. W.A. No. 349/2024 – Canara Bank Vs. Mr.Subramanya Rao K and another (D.D. 16.10.2024); 3. (2017) 14 SCC 605 – Sanjay Vs. Anil and others 4. 1954 AIR 349 – Manilal Mohanlal Shah and another Vs. Sardar Sayed Ahmed and another - 6 - NC: 2025:KHC-D:6455 MFA No. 100109 of 2022 5. Civil Appeal No. 619/2023 (SLP [C] No. 15635/2016) – Gas Point Petroleum India Limited Vs. Rajendra Marothi & ors. (D.D. 10.02.2023). 8. He further submitted that in view of non deposit of the amount there is material irregularity which had caused substantial injustice to the appellant and hence prayed to set aside the auction. 9. The learned counsel for respondents No.1 and 4 contends that admittedly the application was filed beyond the period of 60 days. The Hon’ble Apex Court in the case of Aarifaben Yunusbhai Patel and Ors. Vs. Mukul Thakorebhai Amin and Ors. reported in (2020) 5 SCC 449 held that if the application is not filed within a period of 60 days, then such application filed under Order 21 Rule 90 CPC cannot be considered and Sec. 5 of the Limitation Act is not applicable to the said provision for extension of time. He further submitted that the judgment debtor/ appellant has not complied the provision of Order 21 Rule 89 CPC. In view of the failure of the judgment debtor in - 7 - NC: 2025:KHC-D:6455 MFA No. 100109 of 2022 complying the above said provision, the said application was rejected by the trial Court. Unless appellant overcomes both grounds, the other arguments advanced by the appellant are not tenable. Therefore, prayed to dismiss the appeal. 10. The submission of the learned counsel for the respondents is sustainable. The trial Court has rejected the application on two grounds as already stated above that the application was filed beyond the period of 60 days as permitted under Article 127 of the Limitation Act. As per the law laid down by the Apex Court in Aarifaben Yunusbhai Patel (stated supra) if this application is filed under Order 21 Rule 89 and 90 CPC beyond the period of 60 days such application cannot be considered. Therefore on that technicality the application is not maintainable before the trial Court. 11. Order 21 Rule 89 CPC reads as under: 89. Application to set aside sale on deposit. - 8 - NC: 2025:KHC-D:6455 MFA No. 100109 of 2022 (1) Where immovable property has been sold in execution of a degree, any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person, may apply to have the sale set aside on his deposition in Court, (a) for payment to the purchaser, a sum equal to five per cent of the purchase-money, and (b) for payment, to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder. (2) Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not unless he withdraws his application, be entitled to make or prosecute an application under this rule. (3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale. (emphasis of mine) - - - 12. According to the said provision the judgment debtor had to deposit the amount before filing such application. Admittedly, the appellant has not deposited the said - 9 - NC: 2025:KHC-D:6455 MFA No. 100109 of 2022 amount before the trial Court prior to filing of the application and the said amount was deposited after filing of this appeal. Therefore it is not substantial compliance under Order 21 Rule 89 CPC. There are no reasons to interfere with the findings of the trial Court. Considering the appropriate provision of law the trial Court has rightly rejected the application which does not call for interference by this Court. 13. The other grounds urged by the appellant is not tenable. No such ground was made out in the application, for consideration of trial Court. Said grounds are made out for the first time in this appeal and hence cannot be considered. The application was dismissed due to non compliance of mandatory provision of law, i.e., Order 21 Rule 89 CPC and application was filed beyond time. Hence other ground made out cannot be considered. Hence discussion of said contention is meritless. Hence not discussed. - 10 - NC: 2025:KHC-D:6455 MFA No. 100109 of 2022 14. Advocate for appellant has also filed application I.A. No. 1/2025 seeking permission to deposit the amount before this Court, i.e., 5% of the auction purchase amount. Such an exercise should be taken before the trial Court prior to filing of the application as prescribed under Order 21 Rule 89 CPC. Hence application not maintainable, accordingly rejected. 15. For the aforesaid reasons the appeal is dismissed as devoid of merits. Similarly, I.A. No. 1/2025 is also dismissed. Memos filed seeking permission to produce documents are also rejected as documents cannot be accepted in an appellate court without appropriate application. Send a copy of this judgment to the trial Court. Sd/- (UMESH M ADIGA) JUDGE bvv/ ct-an List No.: 1 Sl No.: 15