SHTRLAKOPPA TOWN MUNICIPALITY Vs. SHARADA RICE MILLS
HIGH COURT OF KARNATAKA
SHTRLAKOPPA TOWN MUNICIPALITY
SHARADA RICE MILLS
Click here to view full judgement.
(1.) This appeal by the decree holder is
directed against the order, dated
23-11-1976, passed by the Prl. Civil Judge,
Shimoga, in Ex. A No. 17/1974, on his
file, dismissing the appeal of the decree
holdex on confirming the order, dated
13-8-1974, passed by the Munsiff, Shikaripur,
in Exn. No. 99/1973, on his file dismissing the execution petition against the
sixth judgment debtor, namely, District
Forest Officer, Sagar Division, Sagar.
Shiralkoppa Town Municipality obtained a decree against respondents 1 to 5 in
OS 28/1961 on the file of the Munsiff,
Shikaripur and in execution of that decree
instituted Ex. Case No. 99/73 for the recovery of Rs. 3,207-08 p. by the sale of the
scheduled property on which a charge was
created in the decree.
(2.) The suit was instituted for recovery of
taxes on the suit property. The sixth judgment debtor, namely, the District Forest
Officer, Sagar Division, Sagar, resisted the
execution by contending that he was not a
party to the proceedings in OS No. 28/
1961 ; that he purchased the suit property
even before the suit was instituted and
hence no charge could be created on the
suit property as on the date of the auction
he was the owner of the suit property by
purchase in the public auction. The
learned Munsiff upheld the contention and
dismissed the petition against the sixth
judgment debtor. Aggrieved by the said
order the Municipality went up in appeal
before the Prl. Civil Judge, Shimoga, in
Exn. A No. 17/1974. The learned Civil
Judge raised the following points as arising
for his consideration in the appeal.
1) Whether the decree holder can
proceed against the petition schedule
property for the recovery of the decretal amount on the ground that a charge
has already been created on the property ?
2) Whether the charge created on the
said property is proper ?
3) Whether the order of the learned
Munsiff calls for interference ?
4) What order ?
Re assessing the evidence on record the
learned Prl. Civil Judge, held that since
the sixth judgment-debtor in the execution
petition became the owner of the property
even earlier to the filing of the suit, no
charge could be created on the suit property as sixth judgment debtor was not
made a party to the suit. In that view he
dismissed the appeal, and confirmed the
order passed by the Munsiff. Aggrieved
by the said order the Municipality has
come up with the above second appeal before this Court.
(3.) This Court while admitting the appeal
has raised the following point of law as
arising in this case :
"Whether the Court below was right
in holding that the sixth respondent had
become the owner of the property in
question prior to the date of the institution of the suit in OS No. 28/1961 ?
It is on record that the suit property was
sold, for the balance due from the owners
towards the purchase of timber, in public
auction, by the Deputy Commissioner on
27 6-1960. Recovery procedure was taken
as if the money due was arrears of land
revenue. The property was purchased by
the sixth respondent, namely, the District
Forest Officer. The sale was confirmed on
6-12-1960 and possession was given on
4-12 1969 The present suit, namely, OS
No. 28/1961 was instituted by the Municipality against judgment debtors 1 to 5 on
20-1 1961. That being so it was contended
by the District Forest Officer that even before the suit was instituted, the property
was sold in his favour and sale was confirmed on 6 12 1960 and therefore he
became owner of the suit, property on
6-12-1960, much prior to the institution
of the suit on 20-1-1961. In that view, it
was submitted that a charge could not be
created on the property for arrears of tax
prior to the sale in his favour as he was
act made a party to the suit. Both the
Courts below have upheld that contention.;
Copyright © Regent Computronics Pvt.Ltd.