- 1 - HC-KAR NC: 2025:KHC:44534 WP No. 23661 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE M G UMA WRIT PETITION NO. 23661 OF 2024 (CS-RES) BETWEEN: MR. RAJESH DEVADIGA, S/O THANIYAPPA DEVADIGA, AGED ABOUT 52 YEARS, R/AT LINGADODI HOUSE, GARDADI POST, GARDADI BELTHANGADI TALUK, DAKSHINA KANNADA - 574217 &PETITIONER (BY SRI. DHANANJAY KUMAR, ADVOCATE) AND: 1. THE RECOVERY OFFICER OF CO OPERATIVE SOCIETIES MANGALORE SUB DIVISION MANGALORE TALUK DAKSHINA KANNADA - 575001 2. THE BRANCH MANAGER SOUTH CANARA DISTRICT CO OPERATIVE BANK LTD (A BANK REGISTERED UNDER CO OPERATIVE SOCIETIES ACT 1959 ) HAVING ITS BRANCH OFFICE AT GURUVAYANAKERE, PADMASHREE COMPLEX, GURUVAYANAKERE, MANGALORE - 574217 &RESPONDENTS (BY SRI. YOGESH .D. NAIK, AGA FOR R1 SRI. RAKSHITH KUMAR, ADVOCATE FOR R2) Digitally signed by NANDINI B G Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:44534 WP No. 23661 of 2024 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE PAPER PUBLICATION DTD. 21.08.2024 ISSUED BY THE RECOVERY OFFICER OF CO OPERATIVE SOCIETIES / R-1 REGARDING THE AUCTION SALE IN RESPECT OF THE PETITIONERS PROPERTY BEARING SURVEY NO. 168/1A1B1AP3 MEASURING TO AN EXTENT OF 0.05 ACRES VIDE ANNX-A AND ETC., THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA ORAL ORDER The petitioner has approached this Court seeking issuance of writ in the nature of certiorari to set aside the paper publication dated 21.08.2024 issued by respondent No.1 - Recovery Officer of Co-operative Societies produced as per Annexure - A, and to set aside the auction sale held on 30.08.2024. 2. Heard Sri. Dhananjaya Kumar, learned counsel of the petitioner, Sri. Yogesh D Naik, Learned Additional Government Advocate for respondent No.1 and Sri. Rakshith Kumar, learned counsel for respondent No.2. Perused the material on record. - 3 - HC-KAR NC: 2025:KHC:44534 WP No. 23661 of 2024 3. It the contention of learned counsel for the petitioner that he had borrowed an amount of Rs.9,00,000/- from respondent No.1 - Society on 04.02.2016 and mortgaged his property bearing survey No.168/1A1B1AP3 measuring 0.05 acres. The said loan was cleared in the year 2022, clearance certificate is issued by respondent No.1 - Society and all the title deeds were returned to the petitioner. 4. It is the further contention of learned counsel for the petitioner that during 2016, he purchased survey Nos.168/1A1B1AP4 and 168/1A1B1AP8 totally measuring 8 and 1/2 cents along with one Smt. Sowmya. The said Smt. Sowmya borrowed the loan from the Society during 2017 mortgaging these two properties for which, the petitioner stood as co- obligant. Now the borrower Smt Sowmya has committed default in repaying the amount. Therefore, the Society is proceeding to hold auction of the property bearing survey No.168/1A1B1AP3. Therefore, it is the contention of the petitioner that the property in question was never mortgaged by him in favour of the Society. Under such circumstances, the Society could not have brought the property for sale. - 4 - HC-KAR NC: 2025:KHC:44534 WP No. 23661 of 2024 5. Learned counsel for the petitioner further contends that, the above stated facts are admitted by the learned counsel for the respondents. However, it is his contention that the property now being auctioned i.e., Sy.No.168/1A1B1AP3 cannot be auctioned till the property that is mortgaged, which is measuring 8 and 1/2 cents, that stand jointly in the names of the petitioner and the borrower Smt. Sowmya are auctioned off. Till the mortgaged properties are not auctioned to clear of the loan amount, the other property owned by the petitioner exclusively can not be brought for sale, when admittedly, the said property was never mortgaged in favour of the respondents for the loan in question. It is contended that, respondent No.1 shall auction the property which is mortgaged in its favour, and if the amount released from auction is not sufficient to clear the debt, then he can lay his hand on the other properties exclusively owned by the borrower or co- obligant. 7. I find considerable force in the contentions taken by the petitioner in challenging the auction that was proposed to be held in respect of the property bearing No.168/1A1B1AP3. - 5 - HC-KAR NC: 2025:KHC:44534 WP No. 23661 of 2024 8. As per order dated 28.08.2024, this Court has permitted the respondents to proceed with the auction scheduled to be conducted on 30.08.2024, but directed not to confirm the same till the next date of hearing. The said order came to be extended from time to time, till date. 9. Learned counsel for respondent No.2 submits that pursuant to the directions issued by this Court, the auction was held as scheduled, but the same was not confirmed. Under such circumstances, no right is accrued in favour of auction purchaser. 10. Learned counsel for respondent No.2 submits that as per the auction notice dated 30.08.2024 - Annexure-A, survey Nos.168/1A1B1AP4, 168/1A1B1AP8 along with 168/1A1B1AP3 were brought for sale. But the same will not cure the defect in bringing the property of the petitioner which was never mortgaged in favour of the Society, for sale without exhausting the remedy against the mortgaged property. Therefore, I am of the opinion that the petition is liable to be allowed. Accordingly, I proceed to pass the following: - 6 - HC-KAR NC: 2025:KHC:44534 WP No. 23661 of 2024 ORDER i) The petition is allowed. ii) The auction sale held on 30.08.2024 is set aside; iii) However, it is made clear that the respondents can proceed against the property held by the petitioner as the co-obligant to the borrower, only if the amount realized by auction of the mortgaged property is not sufficient to clear the amount that is due. SD/- (M G UMA) JUDGE PNV CT:VS List No.: 2 Sl No.: 12 Page No.6 is replaced vide chamber order dated: 21.11.2025