Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 31ST DAY OF JULY 2023 / 9TH SRAVANA, 1945 R.P. NO. 708 OF 2023 AGAINST THE JUDGMENT DATED 12.06.2023 IN F.A.O.NO.56 OF 2023 OF THE HIGH COURT OF KERALA
REVIEW PETITIONER/RESPONDENT/RESPONDENT/DECREE HOLDER/PLAINTIFF: SHYAMALA AGED 59 YEARS W/O UNNI, ODIKKALAPARAMBIL, THYKKAVU, CHERANALLOOR, KOCHI, PIN - 682034. BY ADVS. T.B.THANKAPPAN T.T.HARIKUMAR DIPIN DILEEP A.GOPALAKRISHNAN (ALAPAT) MORELY STALIN JAMES RESPONDENT/APPELLANT/PETITIONER/JUDGMENT DEBTOR/ DEFENDANT: HARSHAPPAN, S/O KUNJAPPAN, AGED 70 , AZHHIKKAKADAVU, VYPPIN.P.O, NOW RESIDING AT AZHIKKAL , 10/494 A, HOMEO DISPENSARY ROAD, VISHNUPURAM, CHERANALLOOR, KOCHI - 682034. BY ADV PETERLAL THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON 20.07.2023, THE COURT ON 31.07.2023 DELIVERED THE FOLLOWING:
ORDER
P.G.Ajithkumar, J.
The respondent in the appeal is the petitioner. She seeks to review the judgment dated 12.06.2023 on the ground that there occurred error on the face of the record. Hence she filed this petition under Order XLVII, Rule 1 read with Section 114 of the Code of Civil Procedure, 1908.
2. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
3. The respondent filed the appeal under Order XLIII Rule 1(j) of the Code assailing the order dated 10.04.2023 of
the Sub Court, Ernakulam in E.A.No.1005 of 2019 in E.P.No.224 of 2018 in O.S.No.87 of 2017. That execution application was filed seeking to set aside sale of an immovable property that took place on 25.11.2019. The Sub Court dismissed that application on 10.04.2023. That order was under challenge in the appeal.
4. This Court, after hearing both sides, found that the
order of the Sub Court dated 10.04.2023 was liable to be set
aside and accordingly it was set aside. The petitioner would now contend that the said judgment suffers from the errors that the decision relied on to set aside the sale was rendered on a different set of facts and does not have application here, the respondent having had opportunity earlier, the objections raised by him regarding insufficiency of the value of the land fixed for sale should not have been considered in view of sub- rule (3) of Order XXI, Rule 90 of the Code and the expenses incurred by way of stamp duty and other expenses was not ordered to be reimbursed to the petitioner.
5. The first two grounds namely, the law laid down in a
decision rendered on a different set of facts was relied on and that the bar under sub-rule (3) of Order XXI, Rule 90 of the Code was overlooked while rendering the judgment dated 12.06.2023 are relating correctness or not of the view taken in that judgment. Those reasons are not relating to any error apparent on the face of the record and therefore no reason for a review.
6. The petitioner is the decree holder. In the
auction, held on 25.11.2019, he bid the property. When the sale was confirmed, the petitioner was obliged to deposit the value of the stamp paper required to engross the purchase certificate. Therefore, he deposited Rs.1,04,040/-. He also had to meet the expenses for taking delivery of the
property. Since the sale was set aside as per the judgment
dated 12.06.2023, the entire money the petitioner spent for the purchase of stamp paper and other expenses in connection with the delivery of the property is lost. On the said premises, she claims that while setting aside the sale, she should have been allowed to realise that amount as compensation from the respondent.
7. In that regard, the learned counsel appearing for
the petitioner placed reliance on M/s Beaver Estates Pvt.Ltd.v. ICDS and others [ILR 2006 (2) Ker.309]. This Court held in that decision that when the auction is set aside, the auction purchaser is entitled to get back the expenses incurred by way of stamp duty and other expenses. It was also held that in certain circumstances, the auction purchaser may be entitled to get compensation as well.
8. The learned counsel appearing for the respondent,
on the other hand, would contend that when the sale is set aside, the petitioner is entitled to get value of the stamp papers reimbursed from the Registration Department and therefore the respondent cannot be fastened with such a liability. The learned counsel placed before us a decision of a Single Judge of the Karnataka High Court in M/s Annapurna Industries and another v. Syndicate Bank and others [AIR 1993 Kar.279] and also a decision of the Single Bench of this Court dated 09.02.2016 in W.P.(C) No.22798 of 2011 (Trinity Securities Private Ltd. v. Revenue Divisional Officer and others]. In both those cases, auction purchasers were strangers. In M/s Annapoorna Industries, the court
held that the value of the stamp paper and registration
charges were to be refunded to the auction purchaser by the department of registration since the act of the court should not cause any kind of injury to him. The said view was accepted by this court in Trinity Securities Private Ltd. and the District Registrar of the Registration Department was directed to refund the amount remitted towards stamp duty and registration fee.
9. In this case, the decree holder himself is the
purchaser. There is no provision in the Kerala Stamp Act, 1959 for return of the value of the stamp paper in a case where the sale through public auction by court is set aside. In a deserving case, the court may be able to order such a refund. Here, only on account of the fault on the part of the respondent, in making the payment in terms of the settlement award within the time he agreed to make the payment, the property happened to be sold. Entire process of sale was completed by executing the purchase certificate and effecting delivery. It was thereafter the sale was set aside. We are of the view that in the facts and circumstances of this case, the loss sustained to the petitioner by setting aside the sale, that is, the amount spent by the petitioner towards the stamp duty of Rs.1,04,040/- is liable to be reimbursed by the respondent.
We follow the law laid down by this court in M/s Beaver Estates Pvt.Ltd. [ILR 2006 (2) Ker.309] in that regard. In the judgment dated 12.06.2023, such a stipulation was omitted and to that extent the judgment is liable to be reviewed and corrected.
10. This Review Petition is allowed and the judgment
dated 12.06.2023 is modified to the extent, that the respondent shall pay to the petitioner Rs.1,04,040/- within two months from today. If the respondent fails to make the payment in time, the petitioner is entitled to realise the same from the respondent and his assets treating the same as the cost due under the decree in O.S.No.87 of 2017.
Sd/- ANIL K. NARENDRAN, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr