Dhanya vs Krishnankutty
2021 Latest Caselaw 5864 Ker

OP (FC).No.699 OF 2019

                              1

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

      THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                              &

            THE HONOURABLE MR.JUSTICE C.S.DIAS

THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942

                  OP (FC).No.699 OF 2019

  AGAINST THE ORDER IN E.A. 89/2018 IN E.P NO.4/2018 IN
      O.P.596/2016 OF THE FAMILY COURT, OTTAPPALAM


PETITIONER/PETITIONER:

           DHANYA
           AGED 35 YEARS
           D/O. UNNEERI,
           MULANJOORTHODI VEEDU, CHOORAKKODE (PO.),
           676 336, VALLAPUZHA VILLAGE, PATTAMBI TALUK,
           PALAKKAD DISTRICT.

           BY ADVS.
           SRI.JAMSHEED HAFIZ
           SMT.T.S.SREEKUTTY

RESPONDENTS/RESPONDENTS:

     1     KRISHNANKUTTY
           AGED 45 YEARS,
           S/O. LATE RAMAN, MOOCHIKKAL VEEDU, AKALOOR
           (P.O.), 679 302, PAZHAYA LAKKIDI, OTTAPPALAM
           TALUK, PALAKKAD DISTRICT.

     2     ANILKUMAR,
           VAISHNAVAM UNNIYALANGAL, TIRUCHILANGADI,
           FAROOK COLLEGE (PO.), 673 632, KOZHIKODE
           DISTRICT.

           R2 BY ADV. SRI.K.RAVI (PARIYARATH)

     THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
18-02-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP (FC).No.699 OF 2019

                                2


                            JUDGMENT

Dated this the 18th day of February 2021

C.S.Dias, J.

The petitioner in this original petition had filed

O.P.596/2016 before the Family Court, Ottappalam

against her husband - the 1 st respondent for a decree

for return of money and gold ornaments that were

entrusted to the 1st respondent at the time of

marriage, as the petitioner's share in her parental

properties.

2. The Family Court, by Ext.P1 judgment,

decreed the original petition and directed the 1 st

respondent to return to the petitioner 15 sovereigns of

gold ornaments or its value of Rs.3,30,000/- with

interest at the rate of 12% per annum. As the 1st

respondent failed to pay the decretal amount within

the stipulated time period, the petitioner filed

E.P.4/2018 (Ext.P3) before the Family Court, to OP (FC).No.699 OF 2019

execute the decree and realise an amount of

Rs.3,51,000/- and the costs of the proceedings from

the 1st respondent and his assets. The 1st respondent

remained absent and was set ex parte by the

Execution Court.

3. The property belonging to the 1st respondent

was attached and put for sale to realise the decree

debt. The petitioner filed E.A 81/2018 (Ext.P4) seeking

permission of the Court, as provided under Order

XXI Rule 72 of the Code of Civil Procedure (in short "

Code") to purchase the property in the execution

proceedings. The Family Court without considering

the Ext.P4 application proceeded with the sale of the

property. The 2nd respondent - the third party bid in

the sale and purchased the property for an amount of

Rs.3,50,000/-. The petitioner filed E.A 89/2018

(Ext.P5) to set aside the sale on the ground of

material irregularity and that substantial injury was

caused to her. The 2nd respondent filed Ext.P6 written OP (FC).No.699 OF 2019

objection to Ext.P5 application. The Family Court by

the impugned Ext.P7 order dismissed Ext.P5

application.

4. Aggrieved by Ext.P7 impugned order, the

petitioner is before this Court.

5. Heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

2nd respondent. The 1st respondent has remained

absent before this Court also.

6. The learned counsel appearing for the

petitioner argued that the execution proceedings

conducted by the Family Court, by not passing any

order on Ext.P4 application, but permitting the 2 nd

respondent to participate in the auction as the sole

bidder is materially irregular, untenable and

unsustainable in law. He contended that substantial

injury, hardship and prejudice has been caused to the

petitioner due to the irregular procedure adopted by

the Family Court. If the petitioner was given an OP (FC).No.699 OF 2019

opportunity to bid in the sale, she should have

certainly quoted a higher price than that of the 2 nd

respondent, which would have been beneficial to the

1st respondent also. The 2 nd respondent is none other

than a benami of the 1st respondent and they are in

cahoots with each other, which unfortunately was

unnoticed by the Family Court, but has caused grave

prejudice to the petitioner. The Family Court ought

not to have proceeded with the execution proceedings

without considering and passing orders on Ext.P4

application. In the above factual background, Ext.P7

order is liable to be set aside invoking the supervisory

jurisdiction of this Court.

7. The learned counsel appearing for the 2 nd

respondent contended that the original petition is not

maintainable because the petitioner has an alternate

remedy of appeal as provided under O.XLIII (1)(j) of

the Code. The petitioner ought to have alerted the

Family Court regarding the pendency of Ext.P3 OP (FC).No.699 OF 2019

application. The petitioner was adopting a wait and

watch policy and has approached this Court only after

the sale was conducted. He relied on the decisions of

this Court in Arunima P.T. v. Anoop [2020 (1) KHC

749] and Ravikumar T.K. v. Punjab National

Bank and Others [2019 (2) KHC 421] to fortify his

contentions.

8. It is on record that the petitioner had filed

Ext.P4 application seeking permission of the Court to

purchase the property of the 1st respondent in the

execution proceedings. A perusal of the impugned

order shows that the Family Court was conscious of

the pendency of Ext.P4 application. The sole reason

for non-consideration of Ext.P4, as seen in the

impugned order, is that on 4.8.2018 when the case

was posted for sale, there was no submission from

the side of the petitioner regarding the said

application and hence the same was not considered. OP (FC).No.699 OF 2019

Accordingly, the Family Court without passing any

orders on Ext.P4 application proceeded to the next

step. The said course adopted by the Family Court is

materially irregular and unsustainable in law.

9. It is rudimentary that when an application

under Order XXI Rule 72 of the Code is pending, the

same has to be considered. If the application is

allowed, then the Court has to fix the reserve price

for the property. The Family Court without passing

orders on Ext.P4 application proceeded to the next

stage of execution, denying the petitioner her

valuable right to participate in the bid.

10. This Court in Theckala Antony v. Thomas

and Others [2008 (4) KLT 486] has held that if a sale

is conducted in violation of Order XXI Rule 72 of the

Code, it is sufficient enough to set aside the sale

without even establishing that any substantial injury

caused by such sale.

OP (FC).No.699 OF 2019

11. In the case on hand, the non-consideration of

Ext.P4 application has certainly caused severe

prejudice and injustice to the petitioner. If the

petitioner had participated in the sale, certainly there

would have been a competitive bid between the

petitioner and the 2nd respondent, which would have

been beneficial to both the petitioner as well as the

1st respondent. The stoic silence maintained by the 1 st

respondent in the execution proceedings as well as

before this Court leads us to the irresistible

assumption that the respondents are acting in

collusion with each other.

12. In the aforementioned legal and facual

analysis of the case, particularly when an application

filed under Order XXI Rule 72 of the Code has been

kept idle and the 2nd respondent has been permitted

to bid in the sale after denying the petitioner an

opportunity, we have no doubt in our minds that the

appellate remedy as provided under Order XLIII (1)(j) OP (FC).No.699 OF 2019

of the Code is not attracted. As injustice has been

caused to the petitioner, and there is irregularity in

the procedure adopted, we are of the definite opinion

that the sale stands vitiated. Hence, we hold that

Ext.P7 order passed by the Family Court is erroneous

and unjustifiable.

In the result, we allow this original petition

invoking the supervisory jurisdiction of this Court

under Article 227 of the Constitution of India, by

setting aside Ext.P7 order. Consequently, we allow

Ext.P4 application by granting the petitioner

permission to participate in the sale proceedings to be

conducted by the Family Court in E.P 4/2018. The

Family Court shall fix the reserve price of the property

sought to be sold and proceed with the execution

proceedings from that stage onwards. The 2nd

respondent will be at liberty to participate in the

proposed sale. The parties are directed to appear

before the Family Court on 15.3.2021. The Family OP (FC).No.699 OF 2019

Court shall proceed with E.P 4/2018 and conclude the

execution proceedings, as expeditiously as possible.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

C.S.DIAS ma/19.2.2021 /True copy/ JUDGE OP (FC).No.699 OF 2019

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE JUDGMENT IN O.P.

596/2016 BEFORE THE FAMILY COURT, OTTAPPALAM DATED 06.07.2017.

EXHIBIT P2 A TRUE COPY OF THE JUDGMENT IN M.C.

154/2016 BEFORE THE FAMILY COURT OTTAPALAM DATED 28.04.2017.

EXHIBIT P3 A TRUE COPY OF THE EXECUTION PETITION FIELD BY THE PETITIONER E.P. 4/2018 BEFORE THE FAMILY COURT OTTAPPALAM DATED 06.02.2018.

EXHIBIT P4 A TRUE COPY OF THE APPLICATION FIELD BY THE PETITIONER SEEKING PERMISSION TO TAKE PART IN AUCTION E.A. 81/2019 IN E.P. 4/2018 BEFORE THE FAMILY COURT, OTTAPPALAM DATED 18.07.2018.

EXHIBIT P5 A TRUE COPY OF THE E.A. 89/2018 IN E.P. 4/2018 IN O.P. 596/2016 BEFORE THE FAMILY COURT OTTAPPALM DATED 29.08.2019.

EXHIBIT P6 A TRUE COPY OF THE COUNTER TO THE E.A.

89/2018 IN E.P 4/2018 IN O.P. 596/2916 BEFORE THE FAMILY COURT OTTAPPALAM DATED 17.01.2019.

EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 02.11.2019 IN E.A. 89/2018 IN E.P.

4/2018 IN O.P. 596/2016 BEFORE THE FAMILY COURT OTTAPPALAM.