- 1 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 30827 OF 2024 (GM-CPC) C/W WRIT PETITION NO. 32994 OF 2024 (GM-CPC) IN WP No. 30827/2024 BETWEEN: 1. SRI. DARSHAN MANAR, S/O LATE N.N. DAYANANDA, AGED ABOUT 38 YEARS, RESIDING AT KUDIDELE ESTATE, RAYARAKOPPALU POST, K. HOSAKOTE HOBLI, ALUR TALUK, HASSAN DISTRICT - 573 129. …PETITIONER (BY SRI. R.S. RAVI, SENIOR COUNSEL FOR SRI. SRINATH H., ADVOCATE) AND: 1. SRI. A.G. HOOVER, S/O LATE N.N. HOOVER, AGED ABOUT 74 YEARS, RESIDING AT NO.08, 1ST MAIN ROAD, LAZER LAYOUT, BENGALURU-560005 …RESPONDENT (BY SRI. B.N. JAYADEVA, ADVOCATE) Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO i) QUASH THE ORDER DATED 28/10/2024 PASSED BY THE HON'BLE PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT HASSAN IN IA NO.29 AND IA NO.30 UNDER ORDER 21 RULE 54(2) R/W 151 OF CPC AND UNDER ORDER 21 RULE 65 R/W SECTION 151 OF CPC RESPECTIVELY IN EX.NO.202/2018 AS PER ANNNEXURE-A AND ETC. IN WP NO. 32994/2024 BETWEEN: 1. MR. N.D. MADHUMITHRA, S/O LATE N.N.DAYANANDA, AGED ABOUT 44 YEARS, R/AT KUDIDELE ESTATE, RAYARAKOPPALU POST, K. HOSAKOTE HOBLI, ALUR TALUK, HASSAN DISTRICT - 573 129. ...PETITIONER (BY SRI. GIRISH D.S., ADVOCATE) AND: 1. MR. A.G. HOOVER, S/O LATE. N.N. HOOVER, AGED ABOUT 74 YEARS, R/AT NO.8, 1ST MAIN ROAD, LAZER LAYOUT, BANGALORE - 560 005. 2. MR. DHARSHAN MANAR, S/O LATE N.N. DAYANANDA, - 3 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 AGED ABOUT 32 YEARS, R/AT KUDIDELE ESTATE, RAYARAKOPPALU POST, K. HOSAKOTE HOBLI, ALUR TALUK, HASSAN DISTRICT - 573 129. 3. SMT. MANJULA DEVI, W/O LATE N.N. DAYANANDA, AGED ABOUT 66 YEARS, R/AT KUDIDELE ESTATE, RAYARAKOPPALU POST, K. HOSAKOTE HOBLI, ALUR TALUK, HASSAN DISTRICT - 573 129. ...RESPONDENTS (BY SRI. B.N. JAYADEVA, ADVOCATE FOR R1; R2 AND R3 SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI IN EXECUTION PETITION NO.202/2018 BY QUASHING THE ORDER DATED. 28.10.2024 PASSED BY THE PRINCIPAL CIVIL JUDGE AND CJM AT HASSAN IN IA I.A.NO.11 UNDER ORDER XXI RULE 54(2) READ WITH SECTION 151 OF CIVIL PROCEDURE CODE BY THE RESPONDENT AS PER ANNEXURE-A ONLY CONCERNING TO SL. NOS.1 AND 2 OF THE SCHEDULE PROPERTY AND ETC. - 4 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER In W.P.No.32994/2024: The petitioner in the subject petition is judgment debtor No.3. Judgment debtor No.3 is before the Court calling in question the order dated 28.10.2024 by which the application filed by the respondent In I.A.No.11 under Order XXI Rule 54 (2) of the Code of Civil Procedure, comes to be allowed. The concerned Court has passed the following order: "5. The following points arise for my consideration is as follows: 1. Whether the applicant/DHR has made out grounds for issuing warrant of attachment of schedule properties by publishing the same by way beat of tom tom as well as through paper publication? 2. Whether the applicant/DHR has made out grounds to sale of the petition schedule properties by way of auction by appointing Court Commissioner? 3. What order? - 5 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 6. My findings on the above points are as follows: Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: As per the final order for the following: REASONS: 7. Point No.1 and 2 :- In order to avoid repetition of facts, I have taken these points together for common discussion. I have perused the entire materials available on record. The decree holder has filed this petition seeking recovery of Rs.2,79,15,476-00 as on the date of filing of the present petition; wherein the present petition has been filed on 13.04.2018, he had filed a suit in O.S.No.45/2009 against the present judgment debtors seeking the relief of Specific Performance of Contract dated 14.05.2008 and the said suit came to be decreed on 24.11.2017. As such he filed the present petition seeking the recovery of the decreetal amount. Though he has obtained a judgment and decree on 24.11.2017 but till today he is not able to enjoy the fruits of the said decree. Neither the judgment debtors nor the objectors have filed one or the other applications in this case and due to the pendency of the said applications, the decree holder is not able to get the fruits of the decree till today. The DHR has filed these above applications seeking attachment of petition schedule properties and for auction the same to recover the decreetal amount. 8. On perusal of the records it is also noticed that the Honble High Court had directed this court to dispose of the petition within 31-05-2024, thereafter as per the requisition of this court, time is extended till 11.11.2024. But till today not able to dispose of the petition due to non payment of the Judgment debtors and also not able to attach the properties as well as not able to auction the petition schedule properties in order to recover the decreetal amount. However the JDRs failed to pay the decreetal amount. On perusal of the records it is noticed - 6 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 that already the DHR had filed an application under Order 21 Rule 64 of CPC seeking the order of sale of attached properties, and sale proclamation proceedings were also taken place and already attached the petition schedule properties on 05-08-2023 and spot sale, court sale proceedings were taken place. But not able to auction the same and thereafter till today the petition schedule properties have not been attached and accordingly the DHR has filed these applications. 9. Though the JDRs have filed their objections, but they have not made out grounds to stop the proceedings regarding attachment of the petition schedule properties. The Decree holder is struggling since filing of the petition to get the fruits of the decree, but not able to get the same. As such, the DHR has made out grounds to allow the above said applications and accordingly, I answer the above point No.1 and 2 in the Affirmative. 10. Point No.3: In view of above findings and discussions, I proceed to pass the following. :O R D E R: I.A.No.11 & 29 Filed Under Order 21 Rule 54(2) R/w Sec.151 Of CPC, I.A.No.12 & 30 Filed Under Order 21 Rule 65 R/w Sec.151 Of CPC And I.A.No.13 Under Section 151 Of CPC are hereby allowed. Accordingly Petition Schedule properties mentioned in I.A.No.11 and 29 are hereby ordered for attachment." 2. Heard Sri.Girish D.S., learned counsel appearing for the petitioner, Sri.B.N.Jayadeva, learned counsel appearing for respondent No.1 and have perused the material on record. - 7 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 3. The petitioner is the judgment debtor No.3, suffers a decree of specific performance, by way of recovery of the amount of ₹1,47,00,000/- and ₹29,027/- plus interest. The decree so passed was sought to be executed in Execution Case No.202/2018. Before the concerned Court, the parties to the lis appear to have spoken about certain settlement, pursuant to which the Court passes the following order on 03.08.2024. The said order reads as follows: "Jdr No.3 present. Sri. STS advocate for Dhr present and filed objection. Jdr No.3 agreed to pay Rs.1,68,00,000/- as per affidavit filed on 13.12.2023. Sri. STS advocate agreed to receive the said amount on behalf of Jdr No.3 for the said amount. Both Jdr No.1(a) and Jdr No.3 agreed to pay the amount within three months i.e., 04.11.2024 Sri. HSMM advocate submitted no objection to receive the amount of Rs.40,00,000/- deposited in this case by the Jdr No.3. Dhr also filed voucher and hence office is hereby directed to prepare K2 bill for a sum of Rs.40,00,000/- after due verification. Hence posted for payment. Call on-31.08.2024." (Emphasis added) 4. In terms of the aforesaid order, the judgment debtor No.3 agreed to pay an amount of ₹1,68,00,000/- in terms of the affidavit so filed on 13.12.2023 and both the judgment debtor Nos.1(a) and 3 agreed to pay the amount - 8 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 within 3 months i.e. 4.11.2024. In furtherance of the said offer, the decree holder receives an amount of ₹40,00,000/- from the hands of judgment debtor No.3. This is an admitted fact. The time that was stipulated by the concerned Court was 04.11.2024 for the payment of the amount so agreed. 5. Long before the said date could come about on 04.11.2024 and on 28.10.2024, a proclamation was issued to sell the property that was already attached. Thus, time was still available for the judgment debtor No.3 to make good the amount, as he had agreed to pay the amount of ₹1,68,00,000/- on or before 4.11.2024. The suit property is put to auction, the auction of which has driven the judgment debtor No.3 to this Court on several scores including the fact that the property is now been partitioned and his share is Item Nos.1 and 2 in the suit schedule property. 6. Learned counsel for the respondents submits that the decree amount was qua the suit property and any division after the decree would not be of any avail for the decree holder. The claim is for payment of ₹1,47,00,000/- along with - 9 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 interest up to date. The learned counsel submits that amount of ₹3,80,00,000/- is now due from the judgment debtors. The learned counsel for the Judgment Debtor No.3 submits that ₹1,68,00,000/- in total, is already in deposit in this manner. ₹40,00,000/- is paid on 03.08.2024 and ₹1,28,00,000/- lies in deposit before the concerned Court. Therefore ₹1,68,00,000/- that he had agreed on 03.08.2024 has now been complied with. The learned counsel further contends that the decree holder may be permitted to take the amount of ₹1,68,00,000/- and leave the property Item Nos.1 and 2 in the suit schedule in the light of the partition that has taken place. 7. He would however contend, if the respondents are not willing to take that amount, the procedure that is followed by the concerned Court i.e., even before the date 04.11.2024 did reached, the proclamation is issued on 28.10.2024. Therefore, there is procedural aberration, by the concerned Court in the case at hand. 8. Learned counsel for the respondents would submit that whether the judgment debtor No.3 pays or judgment - 10 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 debtor Nos.1 and 2 pay, it is of no consequence. The decree amount should be paid, as it was a collective amount that is to be paid. If the partition has happened, it is for them to decide as the amount to be paid, is joint and several. 9. In the light of the said circumstance, the only option that is left is to remit the matter back to the concerned Court to pass necessary orders, in accordance with law, after hearing the parties to the lis as the date on which proclamation is issued. 28.10.2024 could not have been the date for proclamation, as time was available up to 04.11.2024 to pay the amount. In that light, the order impugned is rendered unsustainable and the matter will have to be remitted back to the concerned Court, for consideration afresh. 10. For the aforesaid reasons, the following: O R D E R [i] Petition is allowed-in-part. [ii] The impugned order stands quashed. - 11 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 [iii] The matter is remitted back to the concerned Court to consider the applications so filed in I.A.Nos.11 and 12 by the decree holder afresh, in accordance with law, bearing in mind the observations made in the course of the order. [iv] Since the amount is to be paid by the judgment debtor to the decree holder, the concerned Court shall conclude the proceedings with an outer limit of 8 weeks from the date of receipt of the copy of the order. Ordered accordingly. All the deposit that is before the concerned Court shall remain subject to the orders that would be passed by the concerned Court. In the event the property of the petitioner- Judgment Debtor No.3, now after partition i.e. Item Nos.1 and 2 is put to auction by the concerned Court, the amount that is in deposit shall be refunded to the judgment debtor No.3. In the event, the auction would not ensue and the parties would settle the issue to take the amount, the said amount shall be paid to the decree holder. - 12 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 In W.P.No.30827/2024: Heard Sri.R.S.Ravi, learned Senior Counsel for Sri.Srinath H., learned counsel appearing for the petitioner, Sri.B.N.Jayadeva, learned counsel for the respondent and have perused the material on record. 2. The petitioner in the subject petition is the judgment debtor No.1(A). The order that has driven the petitioner to this Court is dated 28.10.2024 where the concerned Court allows the application filed by the decree holder in I.A.No.30 under Order XXI Rule 65 read with Section 151 of the Code of Civil Procedure. The application filed by the decree holder is as follows: "APPLICATION UNDER ORDER 21, RULE 65 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE. That for the reasons stated in the accompanying affidavit, the decree holder prays that this honourable court may be pleased to order that the sale of the schedule property in terms of the order passed by this honourable court be sold through the commission issued by this Honourable court appointing a commissioner to auction the properties in most suitable manner so that the properties are sold in an orderly manner so that the decree holder recovers the money due to him, by sale either as a whole of the listed land or in part i.e., whole of the survey No. starting from this land which is facing - 13 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 the road and continuing thereafter as found suitable by the commissioner, till the amount due under the decree would be realised from the sale of the properties listed in brief below and grant such other reliefs as deemed just in the circumstances in the ends of justice. 1. land measuring 4 acres 01 gunthas in survey No. 15 2. Land measuring 3 acres 07 gunthas in survey No. 76 3. Land measuring 1 acre 37 gunthas in survey No. 16 4. Land measuring 6 acres in survey No. 12/4 5. Land measuring 4 acres 05 gunthas in survey No. 77 All the above lands are situate at Kudidele Village, K. Hoskote Hobli, Alur Taluk, Hassan District." 3. The decree holder has clearly indicated that the property should be sold after appointment of a Court Commissioner, as to how many acres of land should be sold, for the recovery of the decreetal amount along with interest as the case would be. The application comes to be allowed without appointing the Court Commissioner. The entire 41 acres of land is put to auction, by two parcels. The auction that is held has fetched about ₹2.75 crores, which is in deposit before the concerned Court. The auction purchaser is also before this Court. - 14 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 4. The issue now would be whether the order is in consonance with law. Order XXI Rule 64 mandates that the sale should take place qua the decreetal amount when the decree is for recovery of a specified amount. The Apex Court in AMBATI NARASAYYA vs. M.SUBBA RAO AND ANOTHER, reported in 1989 Supp (2) SCC 693, has held as follows: "6. The principal question that has been highlighted before us relates to the legality of the sale of 10 acres of land without considering whether a portion of the land could have been sold to satisfy the decree. It is said that the total sum claimed in the execution was Rs.2,395.50. The relevant provision which has a bearing on the question is Rule 64 Order XXI of the Code of Civil Procedure and it reads as follows: "Order XXI Rule 64: Power to order property attached to be sold and proceeds to be paid to persons entitled.-Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same." 7. It is of importance to note from this provision that in all execution proceedings, the Court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small, the Court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of - 15 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 law only such portion of the property should be sold. This, in our opinion, is not just a discretion, but an obligation imposed on the Court. Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction." 5. The Apex Court interpreting Order XXI Rule 64 holds that it would be immaterial if the property is one or several, but the amount and the value of the property should be assessed prior to proclamation of sale or putting the property to sale by the Court. The order of the concerned Court runs counter, not only to the observations of the Apex Court but even the application filed by the decree holder, as no Court Commissioner is appointed to assess the value of the property which is to be put to auction, for the purpose of recovery of the amount. The amount now recovered is in excess or otherwise is immaterial, if the procedure has not been followed. 6. The auction purchaser appears to have been caught in the crossfire of procedural aberration, between the Court and the judgment debtor and decree holder, as the Court has not followed the procedure prior to proclamation as obtaining under - 16 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 Order XXI Rule 64 and as elucidated by the Apex Court quoted supra. Therefore, the auction purchaser does not want to pursue the matter, he is wanting to withdraw the amount of ₹2,69,00,000/- that is in deposit before the concerned Court. 7. In the light of the aforesaid circumstance of the property being directed to put to auction all over again in accordance with the law, the auction purchaser's amount that is in deposit before the concerned Court shall be permitted to be withdrawn after due verification and in the event, it is kept in a fixed deposit, the interest accrued on the said deposit also should be returned to the auction purchaser, by the Registry of the concerned Court. 8. In that light, the concerned Court will have to hear the applications in I.A.Nos.12 and 13 afresh as is directed in the companion petition and pass necessary orders, in accordance with law. - 17 - HC-KAR NC: 2025:KHC:29295 WP No. 30827 of 2024 C/W WP No. 32994 of 2024 9. All the other contentions and observations made in the companion petition would become applicable to the case at hand as well. Ordered accordingly and Writ Petition is disposed. Sd/- (M.NAGAPRASANNA) JUDGE CBC List No.: 1 Sl No.: 66