Kerala High Court
K.Jayarajan vs Sambasivan on 1 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943
CRP NO. 156 OF 2020
AGAINST THE JUDGMENT DATED 12.06.2020 IN CMA 31/2019 OF DISTRICT
COURT,KOZHIKODE
PETITIONERS/APPELLANTS:
1 K.JAYARAJAN
AGED 52 YEARS
S/O.PADMANABHAN NAIR,
KEEDOTH HOUSE,
CHEVARAMBALAM P.O.,
CHEVAYUR, KOZHIKODE - 17.
2 CHANDHANAMPURATH SHEENA (DIED)
AGED 51 YEARS
W/O.K.JAYARAJAN,
KEEDOTH HOUSE, P.O.CHEVAYUR,
CHEVAYUR AMSOM AND DESOM,
KOZHIKODE TALUK, PIN - 670 017.
ADDL.3 YATHU KRISHNA
AGED 14 YEARS( MINOR)
S/O. LATE CHANDANAMPURATH SHEENA & K. JAYARAJAN,
REPRESENTED BY NATURAL GUARDIAN,
THE 1ST PETITIONER K. JAYARAJAN,
AGED 52 YEARS, KEEDOTH HOUSE,
CHEVARAMBALAM,
P.O. CHEVAYUR, KOZHIKODE-17
ADDL.4 RADHA
AGED 67 YEARS
M/O. LATE CHANDANAMPURATH SHEENA,
CHANDANAMPURATH HOUSE,
P.O. MEDICAL COLLEGE,
KOZHIKODE, PIN- 673 008.
(ADDITIONAL R3 & R4 ARE IMPLEADED AS THE LEGAL HEIRS OF
DECEASED R2 AS PER ORDER DATED 03.01.2022 IN
I.A.NO.1/2021)
BY ADVS.
T.KRISHNANUNNI (SR.)
VINOD RAVINDRANATH
CRP NO. 156 OF 2020
2
SMT.MEENA.A.
SRI.K.C.KIRAN
SMT.M.R.MINI
SRI.M.DEVESH
SRI.ASHWIN SATHYANATH
SHRI.ANISH ANTONY ANATHAZHATH
SHRI.THAREEQ ANVER
RESPONDENT/RESPONDENT:
SAMBASIVAN
AGED 63 YEARS,
S/O.P.C.NARAYANAN,
MEPPEKKATTIL PARAMBA,
CHEVAYUR AMSOM AND DESOM,
KOZHIKODE TALUK, PIN - 670 017.
BY ADV SRI.R.BINDU (SASTHAMANGALAM)
THIS CIVIL REVISION PETITION HAVING COME UP FOR
HEARING ON 03.01.2022, THE COURT ON 01.02.2022
DELIVERED THE FOLLOWING:
CRP NO. 156 OF 2020
3
CR
ORDER
The appellants in C.M.A.31/2019 on the
file of the District Court, Kozhikode have
filed this Civil Revision Petition under
Section 115 of the C.P.C. In C.M.A.
31/2019, the petitioners herein challenged
the dismissal of E.A.No.425/2018 in
E.P.No.494/2017 in O.S.No.93/2014 on the
file of the Additional Sub Cour, Kozhikode.
The sole respondent herein is the decree
holder in the above suit.
2. Heard both sides in detail and
perused the lower Court records.
3. The relevant facts for the
determination of the case are under:
The decree holder herein filed a suit
CRP NO. 156 OF 2020
for the specific performance of an agreement
for the sale of 5 cents of property. The
matter was settled in the Adalath and the
petitioners/defendants in the suit agreed to
pay a sum of Rs.6,50,000/-. Since the
judgment debtors failed to pay the amount as
per the award passed in the Adalath,
E.P.No.494/2017 was filed. In execution of
the decree, the property offered to be sold
was proceeded and thereafter the decree
holder auctioned the property. Sale
confirmed and sale certificate also was
issued.
4. E.A.No.425/2018 was filed by the
judgment debtors to set aside the sale under
Order XXI Rule 90 C.P.C. The Execution Court
dismissed the above petition. The above
order was challenged in C.M.A.31/2019. The
CRP NO. 156 OF 2020
learned District Judge, who heard the above
C.M.A. also confirmed the order of the
Execution Court on the ground that, the
challenge raised in the petition as regards
to non-compliance of issuance of notice
under Rule 66 is meritless. In paragraph
No.9 of the impugned judgment (Judgment in
C.M.A.31/2019) the appellate court observed
as under:
I have gone through the entire case
records. The notice under Rule 66
was served to the judgment debtors
properly but they neither appeared
nor raised any objections.
Further, it was found by the learned
District Judge as under -
Since there was no objection the
decree holder was directed to
produce the draft sale proclamation,
encumbrance certificate and others
CRP NO. 156 OF 2020
on 22.07.2018. The proclamation was
published for effecting sale on
30.04.2018. In the meanwhile on
05.03.2018, EA 206/18 was allowed
advancing the hearing and permitting
the decree holder to take part in
auction and adjourned to 03.04.2018
for report of the publication. On
04.04.2018 the property was sold in
auction and posted for confirmation
of sale on 04.06.2018. On 04.06.
2018 the case was adjourned by
notification to 20.06.2018. On that
day sale was confirmed and EP was
closed.
5. Admittedly, E.A.No.425/2018 was filed
on 10.09.2018, almost three months after the
confirmation of the sale, therefore, the
learned District Judge found that this
petition is otherwise barred by limitation.
It is not in dispute that as provided under
Order XXI Rule 90 C.P.C, where any immovable
CRP NO. 156 OF 2020
property has been sold in execution of a
decree, the decree-holder, or the purchaser,
or any other person entitled to share in a
rateable distribution of assets, or whose
interests are affected by the sale, may
apply to the Court to set aside the sale on
the ground of a material irregularity or
fraud in publishing or conducting it. As per
Article 127 of the Limitation Act, 60 days
time is the period provided to set aside a
sale in execution of a decree from the date
of sale. Thus it appears that E.A.425/2018
filed under Order XXI Rule 90 C.P.C. is
barred by limitation. Therefore, the
District Judge is justified in dismissing
the appeal.
6. In this matter, after filing
E.A.No.425/2018, the judgment debtors filed
CRP NO. 156 OF 2020
E.A.No.149/2019 and E.A.No.150/19 for
setting aside the ex parte order after
condoning the delay of 306 in filing the
same. Those applications were dismissed by
order dated 14.02.2019. Again E.A.
No.151/2019 was filed and the judgment
debtors sought permission to deposit the
decree amount with interest for setting
aside the sale and the same was also
dismissed.
7. It is zealously argued by the learned
Senior Counsel, Adv. Sri Krishnanunni,
appearing for the judgment debtors/
petitioners, that admittedly, E.A.
No.425/2018, if treated as one filed under
Order XXI Rule 90 of C.P.C, the above
petition is barred by limitation. However,
he contended that in view of the specific
CRP NO. 156 OF 2020
contention raised in E.A.No.425/2018, this
petition should be treated as one filed
under 47 of the C.P.C. Therefore, the
limitation is governed by residuary Article
137 of the Limitation Act and the period to
set aside the sale as provided under Section
47 of C.P.C. is within three years from the
date of sale. The legal position is not in
dispute on the point that, if the
application is one filed under Section 47 of
C.P.C., the same is governed by Article 137
of the Limitation Act and the period is
three years. In this connection, the learned
counsel placed a decision reported in 1997
ICO 4118, Gnan Das v. Paulin Moraes, with a
view to highlight the duty of the court when
dealing with application under Order XXI
Rule 90 C.P.C and Rule 64 of C.P.C. In the
CRP NO. 156 OF 2020
said case, the Division Bench of this Court
considered a case where the sale was not
confirmed. I do not think that the ratio of
the said decision has any relevance to the
facts of this case.
8. Another decision reported in 2008(2)
KHC 670, M/s. Mahakal Automobiles and
Another v. Kishan Swaroop Sharma, has been
highlighted to contend that, if there is a
failure to issue a notice under Order XXI
Rule 66(2), the same is fatal and therefore,
the same can be challenged under Section 47
of C.P.C. Another decision reported in
2016(2) KHC 515, Babu John v. A.K.
Ramakrishnan and Another, also placed to
contend that sale conducted in violation of
the mandate of Rule 64 and Rule 66 of Order
XXI C.P.C cannot be sustained merely on the
CRP NO. 156 OF 2020
fact that there was failure on the part of
the judgment debtors to object the sale
proceedings.
9. Before addressing the question as to
whether this petition is to be treated as
one filed under Section 47 of the C.P.C, it
is worthwhile to mention that, if the
petitioner filed E.A.425/2018 by invoking
Section 47 of C.P.C, instead of Order XXI
Rule 90 C.P.C, there is no reason for the
judgment debtors to file a civil
miscellaneous appeal before the District
Court. It is the well settled law that an
order passed in application filed under
Order XXI Rule 90 C.P.C. is one under Rule
92 of C.P.C. and the same is appealable as
per Order XLIII Rule 1(j) of C.P.C. (appeal
from orders). Thus by conduct, indent and
CRP NO. 156 OF 2020
spirit, the petitioners herein filed a
petition under Order XXI Rule 90 C.P.C. to
set aside the sale and after having failed
in getting the sale set aside before the
Execution Court and before the Appellate
Court, this Revision Petition has been
filed. When it is noticed that, if the
petition, E.A. 425/2018, is treated as one
filed under Order XXI Rule 90 C.P.C, the
same is unsustainable in view of the bar of
limitation, when the matter is argued before
this Court, the learned Senior Counsel
submitted that this petition is to be
treated as one filed under Section 47 of
C.P.C. The learned counsel for the
respondent refuted this contention and
submitted that the contention now advanced
shall not sustain.
CRP NO. 156 OF 2020
10. In this context, the pertinent
question arises for consideration is;
whether the grounds to set aside a sale as
enumerated in Order XXI Rule 90 of C.P.C.
are also available in a petition filed under
Section 47 C.P.C. to set aside a sale?
11. At this juncture, it is necessary to
have reference to certain decisions on this
point. In the decision reported in 1997(1)
KLT 777, G. Rajarethna Naikkan v. P.N.
Parameswara Kurup, this Court had occasion
to consider the difference between Section
47 and Order XXI Rule 90 of C.P.C. In the
said decision Full Bench decision of Madras
High Court, reported in AIR 1980 Madras 123,
A.P.V. Rajendran v. S.A. Sundararajan and
Others, which was the subject matter of
appeal in the decision reported in AIR 1981
CRP NO. 156 OF 2020
SC 693, S.A. Sundararajan v. A.P.V.
Rajendran, was referred, where it was held
as under:
Notwithstanding the wording of S.47
which is enough to cover all
applications to set aside sales on
the ground either of illegality or of
irregularity, its scope has naturally
to be restricted so as to give due
effect O.XXI, R.90 CPC. Thus, if the
sale is sought to be set aside on the
ground of material irregularity in
publishing and conducting the sale
within the meaning of O.XXI, R.90,
then S.47 cannot come into play at
all and the sale could be set aside
only invoking Order XXI, Rule 90. But
if the sale is claimed to be void for
certain illegality or voidable on
ground of material irregularities not
referred to in O.XXI, R.90, then S.47
has to be invoked an in such case,
O.XXI, R.90 CPC cannot come into play
at all.
CRP NO. 156 OF 2020
12.After referring the above ratio this
Court also endorsed the said principle in
para 4 of the judgment as under:-
When a judgment debtor makes an
application under Order XXI Rule 90
of the C.P.C, he accepts the factum
of the sale and seeks to challenge it
on the ground that the sale is
vitiated by material irregularity or
fraud in publishing or conducting the
sale. When an application under
Section 47 C.P.C. is made by a
judgment debtor challenging the sale,
he claims the sale to be void for
illegality or in any event voidable
on grounds other than those referred
to in Order XXI Rule 90 of C.P.C and
in a case where the judgment debtor
invokes Section 47 of the C.P.C,
Order XXI Rule 90 of the C.P.C could
not be applied. Errors committed in
settling the sale proclamation which
are mere irregularities cannot be
CRP NO. 156 OF 2020
described as errors which render a
sale void and hence, the application
made in that case could not be
treated as one under Section 47 of
CPC.
13. In the decision reported in 1985 KLT
991, K.P.M. Saheed v. Aluminium Fabricating
Company, the Division Bench of this Court
had indicated the distinction between Order
XXI Rule 90 and Section 47 of C.P.C as
under:-
It is the material irregularity
or fraud which affects the method
and manner of publishing the
proclamation and the actual conduct
of the sale that clothes the Court
with a jurisdiction to set aside the
sale under Order 21 Rule 90 C.P.C.
Where Order 21 Rule 90 applies,
Section 47 is not available.
However, where there is inherent
illegality in the execution
CRP NO. 156 OF 2020
application, such as want of leave
of Court appointing a receiver, it
is a matter arising in execution,
outside the purview of Order XXI
Rule 90 and thus within the scope of
Section 47 of the Code.
14. In fact, the period of limitation to
set aside a sale under Order XXI Rule 90
C.P.C. is governed by Article 127 of the
Limitation Act. The period provided is 60
days from the date of sale. Similarly, while
filing an application under Section 47 of
the C.P.C., then also article 137 governs
the period of limitation and the same is
three years from the date of sale.
15. In the decision reported in AIR
1998 Ker 201, Mohammed Khan And Anr. v.
Graceamma Philip And Ors., a Single Bench of
this Court while considering an application
CRP NO. 156 OF 2020
under Section 47 to declare a sale conducted
after seven years, categorically held that
it is a mischief under Order XXI Rule 90 of
C.P.C .
16. In the decision rendered in 2008(2)
KHC 657, Prakasan K.D. v. State Bank Of
Travancore and others, another single bench
of this Court considered the distinction of
Section 47 and Order XXI Rule 90 C.P.C. and
held that, if the sale is vitiated by
material irregularity or fraud in publishing
and conducting the sale, which attracts Rule
90 Order XXI of C.P.C. The very
maintainability of the execution petition
would very well be taken by invoking Section
47 of C.P.C.
17. Thus the law emerges is that it is
the material irregularity or fraud which
CRP NO. 156 OF 2020
affects the method and manner of publishing the
proclamation and the actual conduct of the sale
that clothes the Court with a jurisdiction to
set aside the sale under Order XXI Rule 90
C.P.C. Where Order XXI Rule 90 applies, Section
47 is not available. However, where there is
inherent illegality in the execution
application, the same is a matter arising in
execution, outside the purview of Order XXI
Rule 90 and thus within the scope of Section 47
of the Code. To put it otherwise, w hen a
judgment debtor makes an application under
Order XXI Rule 90 of the C.P.C, he accepts
the factum of the sale and seeks to
challenge it on the ground that the sale is
vitiated by material irregularity or fraud
in publishing or conducting the sale. When
an application under Section 47 is made, by
a judgment debtor challenging the sale, he
CRP NO. 156 OF 2020
claims the sale to be void for illegality or
in any event voidable on grounds other than
those referred in Order XXI Rule 90 of C.P.C
and in a case where the judgment debtor
invokes Section 47 of the C.P.C, order XXI
Rule 90 of the C.P.C could not be applied.
Errors committed in settling the sale
proclamation which are mere irregularities
cannot be described as errors which render a
sale void and hence, the application made in
that case could not be treated as one under
Section 47 of CPC.
18. Here the learned counsel for the
petitioners/judgment debtors attempted to
bring patent illegality in publishing and
conducting the sale on the ground that no
notice under Order XXI Rule 66 was issued.
However, the records of the court below, as
CRP NO. 156 OF 2020
rightly observed by the District Judge,
would go to show that Order XXI Rule 66
notice was issued to the judgment debtors
and for which, they did not raise any
objection and thereafter the sale was
confirmed.
19. Apart from non issuance of Order
XXI Rule 66, nothing is argued to contend
that the sale is vitiated by patent
illegality or irregularity in any other
manner so as to invoke the power under
Section 47 C.P.C. to set aside the sale.
20. It is relevant note that the
judgment debtors, the petitioners herein
filed OP(C).517/2019 before this Court
challenging order in E.A.No.149/2019
referred earlier, and this Court dismissed
the said original petition holding that
CRP NO. 156 OF 2020
there is nothing in the application also to
show that any material irregularity was
committed in the conduct and sale of the
immovable property. The draft proclamation
of sale produced before this Court at the
time of hearing also shows that the
property comprised of the house also.
21. In the above original petition the
plea raised by the learned counsel for the
petitioners herein the redeem the property
after paying the entire amount also was
negatived on the ground that the decree
holder was not amenable for the same. The
said order is not challenged so far and the
same attained finality.
22. Thus it appears that even treating
the petition as one filed under Section 47
of C.P.C, for argument sake, then also the
CRP NO. 156 OF 2020
same is unsustainable, since it is found
that Order XXI Rule 66 notice already issued
in this case. So this Revision Petition is
found devoid of any merits and same deserves
dismissal. I have to observe that the
petitioners herein are obstructing the
delivery of the property after confirming
the sale years back and after issuance of
sale certificate by filing petitions before
the trial court and original petitions
before this Court.
23. In view of the matter, this Revision
Petition is dismissed.
Having considered the grievance of the
decree holder, I direct the Execution Court
to expedite the delivery within a period of
three weeks from the date of receipt or
production of copy of this judgment by the
CRP NO. 156 OF 2020
decree holder before the Execution Court.
The Registry is direct to forward a copy of
this judgment to the Execution Court for
compliance.
Sd/-
A. BADHARUDEEN
JUDGE
SPV
CRP NO. 156 OF 2020
APPENDIX
RESPONDENT'S ANNEXURE:
ANNEXURE R1(a):- TRUE COPY OF THE JUDGMENT PASSED
BY THIS HON'BLE COURT IN O.P.(CIVIL)
NO.597/2019 DATED 04.04.2019.
//TRUE COPY//
PA TO JUDGE
