Shaijan vs Varghese
2022 Latest Caselaw 5858 Ker

             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.405 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.
    2        YOHANNAN STEPHEN
             S/O.PYNADATH OUSEP, CHAMBANNUR KARA, KARUKUTTY
             VILLAGE, ALUVA TALUK.
    3        DILEEP
             S/O.CHETTIPARAMBIL KUMARAN, ALATHUR VILLAGE &
             DESOM, MUKUNDAPURAM TALUK.
             BY ADVS.
             SRI.K.S.BHARATHAN
             SRI.JOSSY KURIAN
             S.ANJUSHA



     THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL
HEARING ON 23.05.2022, THE COURT ON 31.05.2022 DELIVERED THE
FOLLOWING:
                                        2

F.A.O.No.252 of 2014



                                 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.

F.A.O.No.252 of 2014

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,

F.A.O.No.252 of 2014

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.

F.A.O.No.252 of 2014

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