Kerala High Court
C.K.Rajan vs Vasumathy on 3 July, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 3RD DAY OF JULY 2024 / 12TH ASHADHA, 1946
WP(C) NO. 15367 OF 2010
AGAINST THE ORDER DATED 20.07.2007 IN E.A. NO.465/1994 IN
E.P. NO.566/1990 IN OS NO.460 OF 1985 OF PRINCIPAL MUNSIFF
COURT, ERNAKULAM AND THE COMMON JUDGMENT DATED 04.12.2009
IN C.M.A. NOS.95/2007 AND 116/2007 OF DISTRICT COURT,
ERNAKULAM
PETITIONERS:
1 KRISHNAN
S/O. KUNJANKUMARI, CHAKKATHUKADU,
SOUTH PARUR P.O., MANAKUNNAM VILLAGE.
2 SANKARAN KRISHNAN S/O. SANKARAN, IN DO. DO.(DIED)
3 PAPPI RAMANAN S/O.PAPPI, IN DO. DO.
4 SHANMUGHAN S/O.LATE AYYAKUMARAN, IN DO. DO
5 KRISHNAN MANOHARAN S/O.KRISHNAN
(WRONGLY SHOWN AS KANNAN MANOHARAN, S/O. KANNAN
IN THE JUDGMENT IN C.M.A.NO.116 OF 2007), IN DO.
DO.
6 AMBILY BIJU (WRONGLY SHOWN AS BIJU AMBILY
IN THE JUDGMENT C.M.A. NO.116 OF 2007),W/O. BIJU,
IN DO. DO.
7 DHANAPALAN S/O. GOPALAN IN DO. DO.
BY ADVS.
SRI.S.V.BALAKRISHNA IYER (SR.)
SMT.GEETHA P.MENON
SRI.P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
RESPONDENTS:
1 VASUMATHY,
W/O. LATE RAGHAVAN ARAYAN,
RESIDING AT THAILAMPARAMBU, MALIKAYIL, CHEMBU
P.O., KOTTAYAM DISTRICT.
2
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
2 T.R.GANESH S/O. DO. IN DO. DO.
3 T.R.MURUGESH S/O.DO. IN DO. DO.
4 RAJAN (DIED)
S/O.KRISHNAN, CHAKKATHATTIL, PARUR MURI,
MANAKUNNAM VILLAGE.
5 RAMU THANKAMMA CHAKKATHUKADU, SOUTH
PARUR P.O.
6 NARAYANI OF DO. DO. DO. (DIED)
7 RAJAN S/O.NARAYANI IN DO. DO.
8 BHARGAVAN, PUTHUVAN NIKIKATHIL SOUTH
PARUR P.O.
9 SANKARAN NARAYANAN VADAKKEVELI DO. (DIED)
10 KUTTAN S/O.KOCHI, MAYAPPILICHIRA,
PADINJATTUM CHERIMEL, THEKKEMURI, VAIKOM VILLAGE,
VAIKOM TALUK.
11 KARTHIKEYAN, CHAKKATHUKADU, SOUTH PARUR
P.O.
12 VENU, CHAKKATHUKADU, SOUTH PARUR P.O.,
NOW WORKING AT FAST TRACK COURT(AD-HOC NO.1),
ERNAKULAM.
13 VALSALAWO.PURUSHAN, PEEKKAD, SOUTH
PARUR P.O.
ADDL. R14 C.R. KUNJUMON, CHAKKATHUDADU HOUSE, SOUTH PARUR
P.O., ERNAKULAM DISTRICT, PIN - 682307
[ADDITIONAL R14 IS IMPLEADED AS THE LEGAL
REPRESENTATIVE OF THE DECEASED R9 AS PER ORDER
DATED 01.07.2015 IN I.A. NO.11758/2014]
ADDL. R15 MADANAN, CHAKKATHUDADU HOUSE, SOUTH PARUR P.O.,
ERNAKULAM DISTRICT, PIN - 682307
[ADDITIONAL R15 IS IMPLEADED AS THE LEGAL
REPRESENTATIVE OF THE DECEASED R6 AS PER ORDER
DATED 19.07.2017 IN I.A. NO.11080/2017]
ADDL. R16 SIVANANDAN, ROHINI, VANDANATH, EROOR WEST P.O.,
THRIPPUNITHURA - 682306
[ADDITIONAL R16 IS IMPLEADED AS PER ORDER DATED
19.07.2017 IN I.A. NO.11081/2017]
3
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
ADDL. R17 SAJEEVAN C.K., AGED 49, CHAKKATHUDADU HOUSE,
MANNAKUNNAM VILLAGE, ERNAKULAM - 682307
[ADDITIONAL R17 IS IMPLEADED AS THE LEGAL
REPRESENTATIVE OF THE DECEASED P2 AS PER ORDER
DATED 19.07.2017 IN I.A. NO.11082/2017]
ADDL. R18 VALSALA,
W/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
ADDL. R19 SREEJA C.R.,
D/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
ADDL. R20 RENJITH C.R.,
S/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
ADDL. R21 SARATH BABU C.R.,
S/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
[ADDITIONAL R18 TO R21 ARE IMPLEADED AS THE LEGAL
REPRESENTATIVES OF THE DECEASED R4 AS PER ORDER
DATED 14.09.2018 IN I.A. NO.11766/2014]
BY ADVS.
SRI.P.MARTIN JOSE
SRI.P.S.APPU
SRI.S.NITHIN ANCHAL
SRI.T.C.SURESH MENON
P.PRIJITH(K/233/2005)
THOMAS P.KURUVILLA(K/420-B/2005)
R.GITHESH(K/630/2002)
HARIKRISHNAN S.(K/497/2019)
S.SREEKUMAR (SR.)(S-571)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03.07.2024, ALONG WITH WP(C).15337/2010, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
4
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 3RD DAY OF JULY 2024 / 12TH ASHADHA, 1946
WP(C) NO. 15337 OF 2010
AGAINST THE ORDER DATED 20.07.2007 IN E.A. NO.465/1994 IN
E.P. NO.566/1990 IN OS NO.460 OF 1985 OF PRINCIPAL MUNSIFF
COURT, ERNAKULAM AND THE COMMON JUDGMENT DATED 04.12.2009
IN C.M.A. NOS.95/2007 AND 116/2007 OF DISTRICT COURT,
ERNAKULAM
PETITIONERS:
1 C.K.RAJAN (DIED)
(WRONGLY SHOWN AS C. RAJAN IN THE JUDGMENT IN
C.M.A. NO.95 OF 2007), S/O. KRISHNAN,
CHEKKATHATTIL, PARUR MURI, MANAKUNNAM VILLAGE.
ADDL. P2 VALSALA,
W/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
ADDL. P3 SREEJA C.R.,
D/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
ADDL. P4 RENJITH C.R.,
S/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
ADDL. P5 SARATH BABU C.R.,
S/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
[ADDITIONAL PETITIONERS 2 TO 5 ARE IMPLEADED AS
PER ORDER DATED 27.07.2017 IN I.A. NO.11431/2014]
BY ADVS.
SRI.S.V.BALAKRISHNA IYER (SR.)
SMT.GEETHA P.MENON
5
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
SRI.P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
RESPONDENTS:
1 VASUMATHY
W/O. LATE RAGHAVAN ARAYAN,
RESIDING AT THAILAMPARAMBU, MALIKAYIL,
CHEMBU.P.O., KOTTAYAM DISTRICT.
2 T.R. GANESH, S/O. DO IN DO DO.
3 T.R.MURUGESH, S/O. DO. IN DO. DO.
4 RAMU THANKAMMA, CHAKKATHUKADU,
SOUTH PARUR P.O.
5 KRISHNAN CHAKKATHUKADU, SOUTH PARUR.P.O.
6 NARAYANI, IN DO.DO.
7 SANKARAN KRISHNAN, IN DO.DO. (DIED)
8 RAJAN CHAKKATHUKADU, IN DO.DO.
9 MADANAN, IN DO.DO.
10 PAPPI RAMANAN, IN DO.DO.
11 BHARAGAVAN, PUTHUVA NIKIKATHIL, SOUTH PARUR.P.O.
12 KRISHNAN MANOHARAN (WRONGLY STATED IN THE
JUDGMENT AS 'KANNAN MANOHARAN'), CHAKKATHUKADU,
IN DO.DO.
13 AMBILY BIJU (WRONGLY STATE IN THE JUDGMENT AS
'BIJU AMBILY') IN DO.DO.
14 DHANAPALAN IN DO. DO.
15 SANKARAN NARAYANAN, (DIED)
VADAKKEVELI,SOUTH PARUR.P.O.
16 SHANMUGHAN, CHAKKATHUKADU, SOUTH PARUR.P.O.
17 KARTHIKEYAN, CHAKKATHUKADU, SOUTH PARUR.P.O.
18 VENU, CHAKKATHUKADU, SOUTH PARUR.P.O.,NOW WORKING
AS FAST TRACK COURT (AD-HOC NO.1), ERNAKULAM.
19 VALSALA W/O. PURUSHAN, PEEKKAD, SOUTH PARUR.P.O.
ADDL.R20 C. R. KUNJUMON, CHAKKATHUKADU, SOUTH PARUR P.O.,
MANAKUNNAM VILLAGE, ERNAKULAM - 682307
[ADDITIONAL RESPONDENT 20 IS IMPLEADED VIDE ORDER
DATED 05.12.2022 IN I.A. NO.11451/2017]
6
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
ADDL.R21 SAJEEVAN C. K., AGED 49, CHAKKATHUKADU HOUSE,
MANAKUNNAM VILLAGE, ERNAKULAM - 682307
[ADDITIONAL RESPONDENT 21 IS IMPLEADED VIDE ORDER
DATED 05.12.2022 IN I.A. NO.11452/2017]
BY ADVS.
MARTIN JOSE P
SRI.P.S.APPU
SRI.S.SREEKUMAR
SRI.T.C.SURESH MENON
P.PRIJITH(K/233/2005)
THOMAS P.KURUVILLA(K/420-B/2005)
R.GITHESH(K/630/2002)
HARIKRISHNAN S.(K/497/2019)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03.07.2024, ALONG WITH WP(C).15367/2010, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
7
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
JUDGMENT
[WP(C) Nos.15367/2010 & 15337/2010] These Writ Petitions have been filed challenging the order passed by the Principal Munsiff Court, Ernakulam (for short 'the execution court') in E. A. No.465/1994 in E. P. No.566/1990 in O. S. No.460/1985 dated 20.07.2007 and the judgment passed by the District Court, Ernakulam (for short 'the appellate court') in C. M. A. Nos.95/2007 and 116/2007 dated 04.12.2009.
2. The original petitioner in W.P.(C) No.15337/2010 filed O. S. No.460/1985 against the predecessor in interest of respondents 1 to 3 therein namely, one Raghavan Arayan for recovery of advance amount based on a sale agreement. An agreement for sale was executed between the original petitioner namely C. K. Rajan and the predecessor in interest of the respondents 1 to 3, Raghavan Arayan whereby 10 cents of land belonged to Raghavan Arayan was agreed to be sold to C. K. Rajan for a total consideration of Rs.8,750/- 8 W.P.(C) NO.15367 OF 2010 & W.P.(C) NO.15337 OF 2010 (Rupees eight thousand seven hundred and fifty only). The sale was not taken place in time as per the agreement. Therefore, a suit for recovery of the advance consideration paid was instituted. The suit was decreed. In the execution proceedings (E. P. No.566/1990), a larger extent of property comprised in the agreement measuring 1.98 acres belonged to Raghavan Arayan was attached and put for sale. The sale was effected and the decree holder C. K. Rajan purchased the property. Thereafter, the said sale was challenged. Before the confirmation of the sale itself, the judgment debtor filed an application under Order 21 Rule 90 of the Code of Civil Procedure (C.P.C.) as E. A. No.465/1994 to set aside the sale on the ground of material irregularity. It was contended that the entire extent of property ought not have been sold to realise the decree debt. It was also contended that the amount shown in the sale proclamation was not correct. E. A. No.465/1994 was dismissed on 30.08.1995. The sale was confirmed, sale certificate was issued and 9 W.P.(C) NO.15367 OF 2010 & W.P.(C) NO.15337 OF 2010 delivery was effected. The appeal preferred against the said order was dismissed on the ground of delay. The judgment debtor challenged those orders before this Court in C.R.P. No.659/1997. This Court set aside the orders of the execution court in E. A. No.465/1994 as well as the appellate court and remanded the matter afresh to the appellate court to consider the appeal afresh. The appellate court remanded the matter to the execution court to consider E. A. No.465/1994 afresh in accordance with law. In the meanwhile, the decree holder assigned the property which was delivered to him to various third parties, some of whom claimed to be 'kudikidappukar' in respect of the property assigned to them. They were impleaded in the execution proceedings. Thereafter, after hearing both sides including the subsequent purchasers, the execution court allowed E. A. No.465/1994 as per the order dated 20.07.2007 setting aside the sale on the ground of material irregularity. The said order was challenged in appeal before the District Court 10 W.P.(C) NO.15367 OF 2010 & W.P.(C) NO.15337 OF 2010 both by the decree holder as well as the subsequent purchasers. Both appeals were dismissed by the appellate court as per the common judgment dated 04.12.2009. It is challenging the order of the execution court as well as the appellate court, these Writ Petitions have been filed. WP(C) No. 15337/2010 is filed by the decree holder and WP(C) No.15367/2010 has been filed by the subsequent purchasers.
3. The decree holder died during the pendency of these Writ Petitions and his legal heirs were impleaded.
4. Heard both sides.
5. The judgment debtor filed an application under Order 21 Rule 90 of C.P.C. to set aside the sale on the ground of material irregularity mainly on three grounds; i. The amount shown in the sale proclamation is not correct.
ii. The publication of sale proclamation was not in tune 11 W.P.(C) NO.15367 OF 2010 & W.P.(C) NO.15337 OF 2010 with the Sub Rule (2) of Rule 54 of Order 21 of C.P.C. iii. The execution court sold the entire property whereas only portion of the property was sufficient to satisfy the decree debt.
6. The execution court as well as the appellate court found objection Nos.1 and 3 in favour of the judgment debtor. However, it was found that the 2 nd objection with regard to the publication of the sale proclamation is not sustainable.
7. It is settled that it is the obligation of the court to ensure that only such portion of the property which is sufficient to meet claim in execution petition alone need to be sold. Order 21 Rule 64 of C.P.C. mandates that:
"Any court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may see necessary to satisfy the decree shall be sold, ..........."
8. As stated already, the suit was instituted for recovery of advance amount paid by the decree holder to 12 W.P.(C) NO.15367 OF 2010 & W.P.(C) NO.15337 OF 2010 the judgment debtor covered by a sale agreement. The extent of the property agreed to be sold was 10 cents of land out of 1.98 acres of land sought to be sold. The consideration fixed for the 10 cents of land in the year 1982 was Rs.8,750/- out of which Rs.7,850/- was paid as advance. If the value of 10 cents of land in 1982 was Rs.8,750/-, as rightly held by the execution court as well as the appellate court, by no stretch of imagination could it be held that 1.98 acres of land which comprises the very same property would fetch only Rs.18,000/- during 1994. It is true that the sale cannot be set aside under Order 21 Rule 90 of C.P.C., unless the court is satisfied that substantial injury has been caused to the applicant. The very fact that a larger extent of property measuring 1.98 acres of land was sold for a meager amount itself is a substantial injury to the judgment debtor. The execution court on appreciation of materials before it found that the entire extent of 1.98 acres of land ought not have been sold to meet the decree claim. It was also found 13 W.P.(C) NO.15367 OF 2010 & W.P.(C) NO.15337 OF 2010 that the amount shown in the sale proclamation was not the actual amount due. The appellate court on reappreciation of evidence has confirmed the said findings. This Court under the exercise of jurisdiction vested with it under Article 227 of the Constitution of India cannot reappreciate the fact and upset the said finding of fact.
9. The learned counsel for the petitioners in WP(C) No.15367/2010 submitted that they are bonafide purchasers and they have constructed residential houses in the respective plots purchased by them from the judgment debtor and if the sale is set aside, substantial injury would be caused to them. It is further submitted that in fact they were holding 'kudikidappu' in the respective plots, they have purchased from the judgment debtor. The learned senior counsel appearing for the judgment debtor submits that the judgment debtor disputes the case set up by the purchasers that they were originally 'kudikidappukars' under the judgment debtor. The fact remains that all the sales in 14 W.P.(C) NO.15367 OF 2010 & W.P.(C) NO.15337 OF 2010 favour of the subsequent purchasers were taken place during the pendency of the execution proceedings. The fact that the subsequent purchasers have put up constructions in the property is not at all a ground to be taken into account while considering the application to set aside the sale on the ground of material irregularity under Order 21 Rule 90 of C.P.C., especially for the reason that they purchased the property and construction was made during the pendency of the proceedings. That apart, the execution court in its order has observed that the kudikidappukars and purchasers of property from the decree holder are at liberty to chalk out their remedies at appropriate stage as permitted by law. I see no illegality or impropriety in the impugned orders.
Accordingly, these Writ Petitions are dismissed.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE BR 15 W.P.(C) NO.15367 OF 2010 & W.P.(C) NO.15337 OF 2010 APPENDIX OF WP(C) 15367/2010 PETITIONERS' EXHIBITS ExhibitP1 DATED NIL, PLAN (SKETCH) SHOWING PLOTS DEMARKED.
ExhibitP2 DATED 20-07-2007, TRUE COPY OF THE ORDER
IN E.A.NO.465 OF 1994 IN E.P.
NO.566/1990 IN O.S. NO.460 OF 1985 ON
THE FILE OF THE MUNSIFF'S COURT,
ERNAKULAM.
ExhibitP3 DATED 04-12-2009, TRUE COPY OF THE
COMMON JUDGMENT IN C.M.A. NOS.95 AND 116
OF 2007, DISTRICT COURT, ERNAKULAM
RESPONDENTS' EXHIBITS: NIL
16
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
APPENDIX OF WP(C) 15337/2010
PETITIONERS' EXHIBITS
ExhibitP1 DATED NIL, PLAN (SKETCH) SHOWING PLOTS
DEMARKED.
ExhibitP2 DATED 20-07-2007, TRUE COPY OF THE ORDER
IN E.A.NO.465 OF 1994 IN E.P.
NO.566/1990 IN O.S. NO.460 OF 1985 ON
THE FILE OF THE MUNSIFF'S COURT,
ERNAKULAM.
ExhibitP3 DATED 04-12-2009, TRUE COPY OF THE
COMMON JUDGMENT IN C.M.A. NOS.95 AND 116
OF 2007, DISTRICT COURT, ERNAKULAM
RESPONDENTS' EXHIBITS: NIL