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Judgment
A.N. Venugopala Gowda, J.—Petitioner while availing loan from Union Bank of India, Hampanakatta Branch, Mangalore, mortgaged his immovable property as security. Since he became a defaulter, the bank instituted O.S. No. 180/1995 for recovery of Rs. 3,28,310.85ps with interest and costs. Suit was decreed and a preliminary decree dated 11.08.1999 was passed. Bank applied for final decree, for sale of immovable property mortgaged in its favour in FDP No. 38/2000 and final decree was passed on 31.10.2001. Ex.P No. 45/2004 was filed by the bank, wherein, it sought for sale of the mortgaged property. On 16.07.2009, the executing court ordered for issue of sale proclamation for spot sale and for court sale. Sale took place. Respondent was the successful bidder, having offered the bid amount of Rs. 16,50,000/-. The court sale was made on 29.08.2009. The said property was auctioned in favour of the Respondent for Rs. 16,50,000/-.
Respondent filed Ex.P. No. 155/2009 on 18.12.2009 for delivery of the auctioned property to him. The Petitioner filed statement of objections dated 21.07.2010. Upon consideration, the execution court by an order dated 03.08.2010 has held that, the contentions raised in the statement of objections is not sustainable and it would proceed with the petition. Aggrieved the objector/judgment debtor has filed this writ petition,
The respondent/auction purchaser has filed statement of objections and has produced Annexures R1 to R7.
Sri Pundikai Ishwara Bhat, learned Counsel appearing for the Petitioner/judgment debtor contended that, the court below has not appreciated in the correct perspective the statement of objections filed to the execution petition and hence, the impugned order is perverse and illegal. Learned Counsel submitted that, the property in question is the only property available to the Petitioner and he would be put to untold hardship and the property would fetch market value of Rs. 70,00,000/- and has been auctioned for meager sum of Rs. 16,50,000/- in
the court auction, which is vitiated and hence, interference is called for.
Sri Cyril Prasad Pais, learned advocate appearing for the respondent/auction purchaser, on the other hand contended that, the Petitioner has suppressed material facts and that, there is abuse of process of law by the Petitioner. Learned Counsel submits that, Petitioner and his wife are habitual defaulters and are in the habit of filing suit after suit to defeat the rights of the creditors as well as the auction purchasers. Learned Counsel submits that, the Petitioner has sold the property long ago and has suppressed the fact and that, he has no locus standi to oppose the execution petition. Learned Counsel produced additional documents along with list on 06.10.2010 i.e.,
(1) sale deed executed by the Petitioner dated 09.09.1992 in favour of Smt. Akila Banu
(2) sale deed executed by the Petitioner dated 22.06.2000 in favour of Mrs. Sakeena
(3) deposition of the Petitioner in Misc.case, pending on the file of Prl. Civil Judge (Sr. Divn.,) Mangalore, wherein in the deposition dated 03.08.2010, he has admitted the sale of entire property in favour of Mr. Sakeena.
Learned Counsel submits that, in view of the sale of property by the Petitioner, the Petitioner has no locus standi to maintain the writ petition.
Having heard the learned Counsel on both sides and having perused the writ petition papers, the point for consideration is:
Whether the impugned order is perverse and iitegai?
Indisputedly, the Petitioner mortgaged the property and availed loan from the bank. Bank has obtained the preliminary decree in O.S. No. 180/1995 dated 11.08.1999. The bank applied for final decree in FDP No. 38/2000 and final decree was passed on 31.10.2001. The bank filed Ex.P. No. 45/2004, wherein the sale proclamation was issued and the property mortgaged in favour of the bank, in respect of which the decree was passed, was sold in favour of respondent/auction purchaser and sale certificate was issued. The auction purchaser filed Ex.P No. 155/2009 to deliver the vacant possession of the property, which was sold in his favour in the auction sale conducted by the court The fact that, the Petitioner has sold the property in question under registered sale deeds dated 09.09-1992 and 22.06.2000 as per the documents produced in the court, is not disputed by the Petitioner. In fact, when the said documents were produced in the court, i.e., on 06.10.2010, the Petitioner was present in the court. Sri Pundikai Ishwara Bhat, made enquires with the Petitioner with regard to sale of property under the said deeds. Learned Counsel submitted that, Petitioner has no reply to offer. Thus, the sale of the property-by the Petitioner under the said sale deeds is not in dispute.
Since the Petitioner has sold the property, he has no locus standi to object the proceedings in Ex.P No. 155/2009 filed by the respondent/auction purchaser for delivery of vacant possession of the property to him. In the circumstances, the execution court is justified in overruling the objection and deciding to proceed further in the matter.
The Petitioner has only abused the due process of law. The Petitioner, who had sold the property by suppressing the same, has filed objection statement in the execution court. Even in this writ petition, the Petitioner has not stated anything about the sale of property by him under the sale deeds noticed supra. Since the Petitioner has not disclosed the material facts, his conduct requires to be deprecated.
In the result, the writ petition is devoid of merit and shall stand dismissed with cost of Rs. 5,000/- payable to the Respondent.