Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Kar) 394

IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
M.G.S. Kamal, J.
Hiranappa S/o. Mallappa - Appellants
Versus
M/s. Sriram Finance Co. Ltd., Through Its Power Of Attorney Holder Saidappa, S/o. Somalingappa Bijjaragi - Respondents
R.F.A. No. 200058 Of 2020 (RES)
Decided On : 19-09-2022

Advocates Appeared:
For the Appellants :Sri. Ameet Kumar Deshpande, Sr. Advocate. For Sri. Ganesh S. Kalburgi, Advocate
For the Respondents: Sri. D.P. Ambekar, Sri. Beemanna Gollalappa, Sri. Sachin M. Mahajan.

Point of Law: Section 21 of CPC provides as No objection as to the place of suing shall be allowed by any appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues or settled at or before such settlement, and unless there has been a consequent failure of justice.

Headnote:
Code of Civil Procedure, 1908 - Order 21 Rules 97, 98, 101, 13, 64, Section 151,96, 47 - Karnataka Stamp Act, 1957 - Section 34, 35, 36, 41, 42, (1), 39 or 40 - Arbitration of Conciliation Act, 1996 - Sections 2 (1) (e), 29A and 34(5) - Government of India Act, 1935 - Section 175(3) - Ancestral Property - Possession - Whether executing court on facts and circumstances is justified in rejecting application filed by appellant/petitioners under Order 21 Rule 97, 98 and 101 of CPC - Whether petitioner proves, property in question is joint and ancestral property of petitioner and Judgment Debtor No.1 - Whether petitioners proves that sale auction conducted by this Court is in violation of Rule 64 of Order 21 of Code of Civil Procedure - Whether at this stage, execution of award cannot be proceeded without payment of stamp duty by decree-holder. [Para 34]
Finding of the Court: Appellants/petitioners and judgment debtors, if concerned about preserving subject property, would not have sold same for a sum which is far less than amount recovered by Court auction - In circumstances, it is to be noted that even after satisfaction of award payable to decree holder, there is still excess of amount far more than amount realised by judgment debtors by selling same under Ex.P15 - Respondent No.2/ Judgment Debtor No.1 having sold subject property, with appellant No.1/petitioner No.1 being witness to document cannot be heard to say that there is no compliance of provisions of Rule 64 Order 21 of CPC - There appears to be substantial compliance of requirement of Rule 64 of Order 21 CPC in which executing Court taking into consideration of amount recoverable and guidance value of property as on date of auction deemed it appropriate to auction entire property - There cannot be any grievance by appellants/petitioners in this regard - Learned judge of High Court relying upon judgment of Apex Court in case of Bharat Aluminum Company vs. Kaiser Aluminum Technical Service Incorporation and Others reported in dealing with distinction between subject matter of arbitration and subject matter of suit with reference to Section 2 (1) (e) of Arbitration and Conciliation Act, 1996, has held that jurisdiction of executing Court would be place of arbitration proceedings as subject matter in arbitration was amount claimed with interest and not immovable property - That merely because immovable property which sought to be sold for satisfying award is situated within jurisdiction of executing court it cannot be filed there, but can be transferred for execution - Thus, objection to territorial jurisdiction needs to be raised at first instance and same cannot be raised thereafter - For aforesaid reasons and analysis, this Court is of considered view that no grounds are made out warranting interference with judgment and order passed by executing Court - Points raised above are answered accordingly.
Result: Appeal dismissed.

JUDGMENT :

1. Present appeal is filed by appellants/petitioners being aggrieved by the order dated 29.02.2020 passed in Execution Case No.54/2015 on the file of III Additional District and Sessions Judge at Kalaburagi, by which the application filed under Order 21 Rules 97, 98 and 101 of CPC by the appellants/petitioners is rejected.

2. Brief facts of the case leading up to filing of the appeal are as under:

a) The aforesaid execution case in E.P.No.54/2015 has been filed by decree-holder seeking to execute the award dated 30.08.2013 passed in Arbitration Case No.259/2013 for an amount of Rs.4,40,743/-together with interest at 18% p.a. from 29.03.2013 to 29.05.2015 amounting to Rs.2,51,221/-with further interest at the rate of 18% p.a., till the date of payment against respondents No.2 and 3/Judgment Debtors. That along with the aforesaid Execution Petition, an application was filed by the respondent No.1/Decree Holder under Order 21 Rule 13 read with Section 151 of CPC seeking attachment of immovable property bearing Survey No.72/1 measuring 3 acres 10 guntas situated at Revanoor village, Jewargi.

b) The appellants/petitioners in their aforesaid application contended that the appellant No.1/Petitioner No.1 is the father of respondent No.2/Judgment Debtor No.1. Appellant Nos.2 to 5/Petitioners No.2 to 5 are the sons and daughters of the respondent No.2/Judgment Debtor No.1. The appellant Nos.2 and 3/Petitioners No.2 and 3 are minors and are under care and custody of their grandfather, appellant No.1/Petitioner No.1. That their father Siddaramappa -Judgment Debtor No.1, was not taking care of the interest of appellant Nos.2 and 3/Petitioners 2 and 3. As such, they were represented by appellant No.1/Petitioner No.1. Appellants/Petitioners and the respondent No.2/Judgment Debtor No.1 constituted a Hindu Undivided Family and there was no partition of the joint family property amongst them. That the aforesaid land in Survey No.72/1 measuring 3 acres 10 guntas is the ancestral property. That on 16.02.2019, the appellants/petitioners learnt that a bailiff was to come to deliver possession of the same to one Mahesh, son of Siddaramappa Patil of Jewargi, who claims to be a purchaser of the said land in the Court auction. That respondent No.2/Judgment Debtor No.1 is not the exclusive owner of the said property and the appellants/petitioners have got 1/5th share each therein. That the decree-holder had no right to auction the said land to recover the alleged dues. The auction conducted was thus not binding on the appellants/petitioners. That there were irregularities in conducting the auction. That the appellants/petitioners are not the parties to the loan transaction. They cannot be dispossessed of from the land. It is also contended that since proper stamp duty on the above award has not been paid by the decree-holder, the said award could not be executed without collecting proper stamp duty thereon.

c) Objections were filed to the said application by the Respondent No.4/auction purchaser denying the averments made in the above application. It is contended that as per records of rights for the year 2004-05, land in Survey No.72/A was measuring 14 acres 27 guntas. That after partition an extent measuring 3 acres 10 guntas had been allotted to the share of respondent No.2/Judgment Debtor No.1 and the said fact is evident from the records of right pertaining to the year 2008-09. Therefore, the claim of the appellants/petitioners of property being joint family property and no partition having taken place between the family members is incorrect. Further it is also contended that respondent No.2/Judgment Debtor No.1 had obtained loan from the decree-holder to meet his family necessity by offering aforesaid land as security and since he failed to repay the loan, proceedings were initiated, award was accordingly passed. In the proceeding for recovery of award amount sufficient opportunity was provided to the respondent No.2/Judgment Debtor No.