P.S. NAGARAJA SETTY Vs. P.V. NARAYANAPPA

JUDGEMENT

(1.) Challenging impugned order dtd. 6/6/2015 (Annexure-F) passed by Prl. Civil Judge (Sr.Dn.) and CJM and MACT, Chiradurga, on Misc.no.6/2013 filed in Ex.no.156/2009, this writ petition is filed.

(2.) Sri. K.N. Ravikumar, learned counsel for petitioners submitted that Execution case no.156/2009 was filed for executing decree passed in O.S.no.35/2001 for recovery of Rs.3,77,565.00. It was submitted that since property was situated at Chitradurga, decree was transferred to jurisdictional Court at Chitradurga, for execution.

(3.) It was submitted that on 7/1/2012 executing Court ordered for sale of item no.3 of suit property and for sale warrant on 4/2/2012. It was contended that petitioners had purchased item no.3 under two sale deeds dtd. 12/1/2006 and 6/10/2006 from Judgment Debtor (for short 'J.Dr.') prior to date of decree, which was on 14/8/2007. It was submitted that sale was ordered and conducted in violation of mandatory procedure stipulated on Order 21 Rule 66 of CPC. It was submitted that there was Decree holder (for short 'D.Hr.') had not filed verified statement with particulars as contemplated in sub-rule (2) of Rule 66 and therefore, sale was contrary to law and fraudulent. It was submitted that D.Hr. failed to produce encumbrance certificate and value of bid was far lower than market value. Despite same, when petitioner filed Misc. petition no.6/2013 under Order 21 Rule 90 of CPC read with Sec. 144 and 145 of CPC for setting aside of auction sale, confirmation of sale and cancellation of sale deed dtd. 3/4/2012, trial Court dismissed same under impugned order. 3. It was submitted that reason assigned by Executing Court was that J.Dr.no.1 had not objected and order of attachment before judgment was obtained in respect of some other property and subsequently amended in respect of property purchased by petitioners prior to decree. Hence, there was material irregularity and if not interfered with would lead to miscarriage of justice. It was submitted that observation that petitioners were subsequent purchasers and therefore, had no right to question sale and after confirmation of sale, petition was not maintainable was contrary to law and sought for allowing writ petition.