SRI G. SRIDHAR vs K. GULAM RASOOL S/O LATE K. BASHA
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC-D:15924
WP No. 104091 of 2026
CNR: KAHC020087602026
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
RD
DATED THIS THE 23 DAY OF SEPTEMBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 104091 OF 2026 (GM-CPC)
BETWEEN:
SRI. G. SRIDHAR S/O LATE G. BASALINGAPPA,
AGE. 56 YEARS, OCC. BUSINESSMAN,
R/O. S.R. NAGARA, HOSAPETE,
DIST. VIJAYANAGARA-583201.
…PETITIONER
(BY SRI. SADIQ N. GOODWALA, ADVOCATE)
AND:
1. SRI. K. GULAM RASOOL S/O LATE K. BASHA
AGE. 73 YEARS, OCC. RETIRED EMPLOYEE,
TH
R/O. DOOR NO.S-50, 5 CROSS, MAIN ROAD,
T.B. DAM, HOSAPETE, DIST. BALLARI-583101.
SRI. DHEERENDRA SWAMY
BY HER LR’S
2. SMT. NIRMALADEVI W/O LATE DHEERENDRA SWAMY,
AGE. 63 YEARS, OCC. HOUSEWIFE,
R/O. WARD NO.34, DEVANGAPETE, GOPALA NILAYAM,
BY THE SIDE OF SHAKRAMMA TEMPLE,
HOSAPETE, DIST. BALLARI-583101.
Digitally
signed by
SAROJA
HANGARAKI
Location: high
court of
karnataka,
dharwad bench
3. SRI. SRINIVAS S/O LATE DHEERENDRA SWAMY,
AGE. 34 YEARS, OCC. EMPLOYEE,
R/O. WARD NO.34, DEVANGAPETE, GOPALA NILAYAM,
BY THE SIDE OF SHAKRAMMA TEMPLE,
HOSAPETE, DIST. BALLARI-583 101.
4. SMT. GAYATHRI W/O SRINATH
AGE. 38 YEARS, OCC. HOUSEWIFE,
R/O. WARD NO.34, DEVANGAPETE,
BY THE SIDE OF SHAKRAMMA TEMPLE,
GOPALA NILAYAM, HOSAPETE,
DIST. BALLARI-583 101.
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NC: 2026:KHC-D:15924
WP No. 104091 of 2026
CNR: KAHC020087602026
5. SYED THABREJ S/O SYED KHADRI,
AGE. 56 YEARS, OCC. BUSINESS,
R/O. WARD NO.16, BASAVESWARA BADAVANE,
HOSAPETE, DIST. VIJAYANAGARA-583201.
6. S.P. AMARESHWARAIAH
S/O LATE S.P. PARAMESHWARAIAH,
AGE. 69 YEARS, OCC. AGRICULTURE,
TH
R/O. 8/A, 7 WARD, NEAR GOVERNMENT PRIMARY
SCHOOL, ANANTHASAYANAGUDI, HOSAPETE,
DIST. VIJAYANAGARA-583 201.
…RESPONDENTS
(BY SRI. K.L. PATIL, ADVOCATE FOR R2,R3,R5 AND R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO A WRIT IN THE
NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED
08.01.2026 PASSED BY PRL. SENIOR CIVIL JUDGE AND CJM,
VIJAYANAGAR DISTRICT, HOSAPETE IN EP NO.28/2020 IN SO FAR
AS CANCELLING THE SALE CERTIFICATE IN FAVOR OF PETITIONER
VIDE ANNEXURE-L AND ETC.
THIS WP COMING ON FOR ORDERS, THIS DAY, ORDER WAS
MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL
ORAL ORDER
1. The petitioner is an auction purchaser of the property
which was auctioned towards recovery of the decretal
amount. Applications under Order XXI Rules 97, 99, 100,
101, 103, 104, 58 read with Section 151 of the CPC
rd
(I.A.No.20) was filed by 3 party respondent No.5 herein.
Another application under order XXI Rule 97 (I.A No.21)
rd
was filed by another 3 party-respondent No.6 herein.
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NC: 2026:KHC-D:15924
WP No. 104091 of 2026
CNR: KAHC020087602026
The trial Court by the impugned order though rejected
the applications has however cancel the sale certificate
issued in favour of the petitioner and has directed ted the
decree holder to return the auction purchase amount to
the petitioner., The trial Court has further rejected the
execution petition reserving the liberty to the decree
holder to file a fresh execution petition against the
judgment debtor for recovery of decreetal amount.
2. Learned counsel for the petitioner, referring to the
operative portion of the impugned order, submits that,
without there being any application or request from
anyone whomsoever, the Trial Court, on its own,
assuming jurisdiction under Order XXI Rule 90 of the
CPC, has set aside the auction conducted by the Court
and has also cancelled the sale certificate issued in favour
of the auction purchaser-petitioner herein.
3. He further submits that the Trial Court has directed the
decree holder to return a sum of ₹1,03,68,488/- with
interest at 6% per annum. It is his submission that such
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WP No. 104091 of 2026
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an order is one without jurisdiction and therefore seeks
for quashing of the same.
4. Heard and perused the records.
5. Learned counsel for the respondents-Objectors is present.
Respondent No.6 is also one of the objectors. He has not
filed any appeal.
6. There is no challenge to the rejection of the applications
filed under Order XXI Rules 97, 99, 100, 101, 103, 104,
58 read with Section 151 of the CPC.
7. At paragraphs 20, 21 and 22 of the impugned order, the
Executing Court has noted as under:
“20. Be that as it may, the order passed by
Tahasildar, Hosapete, manifestly goes to show that
the entire 3.66 acres of the property comprised in
Sy.No.134/B4/B was re-granted in favour of Gosi
Shankarappa, and the mutation in respect thereof was
ordered to be changed in his name. Accordingly, in the
year 2012, his name 17 E.P.No.28/2020 has been
entered in the record of rights. This aspect makes it
clear that the property which was sold in the public
auction does not belong to the deceased Jdr but it
belongs to a third party. In spite of that, it has been
sold. Therefore, the very sale of this property is void
and illegal for which the sale must be set aside and
consequently, the sale certificate also needs to be
cancelled inasmuch as the decree holder has played
fraud on this court in bringing the property belonging
to a third party for sale and in having it sold in public
auction. The Hon’ble Supreme Court in a decision
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WP No. 104091 of 2026
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reported in 1995(3) SCC 579 between Nani Gopal
Paul V/s. P.Prasad Singh and others , has held
that though as per order XXI Rule 89 or 90 of CPC, an
application is required to be filed within limitation to
have the sale conducted by the court set aside, that
procedure need not be insisted upon. Because, the
court or the appellate court will not remain a mute or
helpless spectator to obvious and manifest illegality
committed in conducting court sale. The court can sue
moto take judicial notice of the illegality and set aside
the sale. In the light of the supra devision, it can be
said that there is no legal impediment to set aside the
sale. Once the sale is set aside, the decree holder 18
E.P.No.28/2020 becomes liable to return back the sale
price to the auction purchaser with reasonable
interest.
21. I have already discussed that the decree which is
put in execution speaks that the judgment debtors are
not personally liable to pay the decreetal amount.
Rather, their liability is restricted to the estate and
property inherited by them from the deceased Jdr.
Therefore, the decree has to be executed as against
the property left by the deceased Jdr. Indeed, in this
execution petition, the property bearing
Sy.No.134/B4/B is sought to be attached and sold for
recovery of decreetal amount. But, as I said earlier,
this property does not belong to him. So, the decree
holder will have to proceed against some other
property, if any, left by the deceased Jdr.
22. On the other hand, since there is no personal
liability on the part of legal representatives of the
deceased Jdr, they cannot be arrested and sent to civil
prison for disobedience of the decree. Likewise, their
movable properties cannot be attached. Yet, all these
reliefs are sought in the present execution petition.
Thus, there is defect as the requirements of Order XXI
rule 11 to 14 are not complied with. Therefore, the
petition has to be rejected as per rule 17 of Order XXI.
19 E.P.No.28/2020 In this context, the decree holder
will have to file a separate execution petition so as to
recover the decreetal amount. Hence, this court
deems it proper to dismiss the present execution
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petition by reserving liberty to file a fresh petition.
With this observation, I proceed to pass the
following:”
8. The aforesaid paragraphs indicate that the Executing
Court, on its own, has found from the objections raised
that the property which was put to auction did not belong
to the deceased judgment debtor, but belonged to a third
party. The order does not indicate who the third party is,
whether notice has been issued to such third party or
whether the third party has raised any objection in this
regard.
9. Inasmuch as the parties who had filed the applications in
I.A. Nos.20 and 21 have not been able to substantiate
their objections, their applications came to be rejected.
Therefore, the Trial Court ought to have been clear as to
whom does the property in question belong to, if it did
not belong to the deceased judgment debtor. No reasons
are assigned in this regard in the impugned order.
10. Therefore, the writ petition is allowed . The
impugned order, to the extent of setting aside the auction
sale, and the sale certificate, and directing the decree
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WP No. 104091 of 2026
CNR: KAHC020087602026
holder to return the aforesaid amount, is quashed and the
matter is remitted to the Executing Court for hearing the
parties on the issue as to whom does the property which
was purchased by the petitioner belong to and pass an
appropriate order.
11. The Executing Court shall identify the person to whom
the property is stated to belong and afford such person
an opportunity of being heard before passing appropriate
orders.
12. The Executing Court shall dispose of the matter within a
period of six months from the date of receipt of the
certified copy of this order.
Sd/-
(M.G.S. KAMAL)
JUDGE
VB, CT:VP
LIST NO.: 1 SL NO.: 71