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 TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944 F.A.O.NO. 252 OF 2014 AGAINST THE ORDER DATED 31.05.2014 IN E.A.NO.406 OF 2014 IN E.A.NO.840 OF 2011 IN E.P.NO.205 OF 2010 IN O.S.NO.289 OF 2008 OF THE SUB COURT, IRINJALAKUDA APPELLANT/PETITIONER: SHAIJAN S/O.THOTTATHIPARAMBIL KUTTAN, ALATHUR VILLAGE AND DESOM,MUKUNDAPURAM TALUK,THRISSUR. BY ADV SRI.T.N.MANOJ RESPONDENTS/RESPONDENTS: 1 VARGHESE S/O.KANNAMPUZHA OUSEP,CHAMBANNOOR KARA, ANKAMALY VILLAGE, ALUVA TALUK - 683 101. 2 YOHANNAN STEPHEN S/O.PYNADATH OUSEP, CHAMBANNUR KARA, KARUKUTTY VILLAGE, ALUVA TALUK - 683 101. 3 DILEEP S/O.CHETTIPARAMBIL KUMARAN, ALATHUR VILLAGE & DESOM, MUKUNDAPURAM TALUK - 680 511. BY ADVS. R1 BY SRI.K.S.BHARATHAN R1 BY S.ANJUSHA R1 BY B.C.MENON R2 & R3 BY SRI.JOSSY KURIAN THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 23.05.2022, THE COURT ON 31.05.2022 DELIVERED THE FOLLOWING:
JUDGMENT
Ajithkumar, J.
This is an appeal filed under Order XLIII, Rule 1(j) of the Code
of Civil Procedure, 1908. The appellant, a third party to the suit, claims that the judgment debtors did not have title to the petition schedule property of 10 cents of land comprised in Sy.No.1238/2 of Alathur Village as the same was purchased by the appellant as early on 13.05.2008 as per sale deed No.2336 of 2008, for valuable consideration. He also alleges that the sale of the said property on 28.2.2014 in execution of the decree is vitiated by material irregularity and fraud. On such grounds, he sought to set aside the sale for which he filed E.A.No. 405 of 2014. The Execution Court
(Principal Sub Court), Irinjalakuda, did not entertain the contentions and dismissed the application as per order dated 31.05.2014. Challenging the said order, this appeal has been preferred.
2. It was contended that the proclamation was not properly
published and the sale was for totally an inadequate price. A portion of the property alone was enough to satisfy the decree. The sale was conducted without satisfying the mandatory requirements, and therefore, the same is unsustainable in law.
3. The 1st respondent, who is the decree-holder, filed a
counter-statement controverting the averments and allegations set out in the application. It was further contended that the appellant had filed E.A.No.945 of 2012 invoking the provisions of Order XXI, Rule 58 of the Code on the very same contentions, but it was dismissed by the Execution Court. Pointing out the said circumstances, the 1st respondent sought to dismiss the application.
4. The appellant gave oral evidence as PW1. The Execution Court after considering the oral testimony of PW1 and on hearing both sides held that none of the grounds mentioned in Rule 90 of
Order XXI of the Code has been established by the appellant and
resultantly the application was dismissed.
5. One of the contentions of the appellant is that the
property, which has an extent of 10 cents, was sold for a totally inadequate price and sale of a part of the property was sufficient to satisfy the award. In the award, the 1st respondent-decree holder was permitted to realise an amount of Rs.3,20,000/- along with interest from the judgment debtors, who are respondents 2 and 3. In
order to realise that amount, the property was brought on sale. The
claim of the appellant is based on the sale deed No.2336 of Annamanada Sub Registrar's Office dated 13.05.2008. Admittedly, the consideration paid by the appellant for that property was Rs.40,000/-. On the face of that fact, how can the appellant contend that the sale of the entire 10 cents of the property was not required for realisation of Rs.3,20,000/- and its interest.
6. Auction sale of an immovable property in execution of a
decree can be set aside only if the parameters in Rule 90 of Order
XXI of the Code are established. The sale shall be vitiated by reason of material irregularity or fraud, either in publishing or conducting of the sale in order to have the sale set aside. Even on establishing those facts, the court gets jurisdiction to set aside the sale only if it is further established that such irregularity or fraud has resulted in substantial injury to the person seeking to set aside the sale. The oral testimony of PW1 is totally insufficient to prove any of the said facts. He was unable to depose before the court regarding the procedure followed in settling the proclamation and publishing it, or about the procedure of the sale. No particulars of the proclamation or sale, which in his view was irregular or fraudulent, have been pointed out in the application or deposed to by PW1. It was after taking into consideration such nature of
pleadings and evidence that the Execution Court dismissed E.A.No.405 of 2014 in E.P.No.205 of 2010 in O.S.No.289 of 2008.
7. Having gone through the materials available on record,
we do not find any reason to interfere with the said finding of the Execution Court (Principal Sub Court), Irinjalakuda. Therefore, we dismiss this appeal with cost to the 1st respondent. Sd/- ANIL K.NARENDRAN JUDGE Sd/- P.G. AJITHKUMAR JUDGE dkr