Mohammed Moideen vs Maben Nidhi Ltd
2023 Latest Caselaw 9022 Ker

                                                             "C.R."

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                 &
          THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
                        F.A.O.NO. 6 OF 2021
AGAINST THE ORDER DATED 20.11.2020 IN E.A.NO.844 OF 2019
IN E.P.NO.51 OF 2017 IN ARBITRATION CASE NO.18 OF 2015 OF
         THE III ADDITIONAL DISTRICT COURT, THRISSUR


APPELLANT/PETITIONER/JUDGMENT DEBTOR:


           MOHAMMED MOIDEEN, AGED 50 YEARS, S/O.
           ARAVASSEERY ISMAIL, VADANAPILLY P.O., THRISSUR
           DISTRICT-680 614.
           BY ADV G.SREEKUMAR (CHELUR)

RESPONDENT/RESPONDENT/DECREE HOLDER:


           MABEN NIDHI LTD., BUILDING NO.5/421, NEAR HIGH
           SCHOOL JUNCTION, REPRESENTED BY ITS MANAGER,
           VALAPPAD P.O., THRISSUR DISTRICT-680 567.
           BY ADVS.
           SRI.V.B.UNNIRAJ
           SMT.R.S.GEETHA
           SMT.K.SEEMA
           SMT.P.ANITHA

        THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
FINAL    HEARING   ON   10.08.2023,   THE   COURT   ON   23.08.2023
DELIVERED THE FOLLOWING:
                                      2
F.A.O.No.6 of 2021


                             JUDGMENT                           "C.R."

P.G. Ajithkumar, J.

The appellant has filed E.A.No.844 of 2019 in E.P.No.51

of 2017 in Arbitration Case No.18 of 2015 for setting aside the

sale held on 21.05.2005 selling 4.05 Ares of land comprised in

Sy.No.176/3 of Vadanappally Village belonging to him. That

petition was dismissed by the III Additional District Judge,

Thrissur as per the order dated 20.11.2020. The said order is

under challenge in this appeal filed under Order XLIII, Rule

1(j) of the Code of Civil Procedure, 1908.

2. After the appearance of the respondent, the matter

was referred for mediation as per the order dated 11.02.2021.

The mediation took place in the Ernakulam Mediation Centre,

High Court of Kerala was unsuccessful.

3. Heard the learned counsel appearing for the

appellant and the learned counsel appearing for the

respondent.

4. The appellant would contend that 4.05 Ares of land

along with a double-storied building was sold for a meagre

F.A.O.No.6 of 2021

amount of Rs.7,50,100/-; whereas the said property worths

Rs.65 lakhs. It is alleged that the proclamation schedule was

drawn up without mentioning about the building thereon even

and stating a low price. It is also alleged that there was no

proper proclamation. When the sale was conducted with such

serious irregularities and thereby a property worth Rs.65

lakhs was sold just for an amount of Rs.7,50,100/-, that

resulted in substantial injury to the appellant.

5. The petition for setting aside the sale was resisted

by the respondent-decree holder contending that having given

sufficient opportunity to file objection to the proclamation

schedule, the appellant could not seek to set aside the sale on

such grounds. It was further contended by the respondent

that the respondent-decree holder purchased the property for

a commensurate price and no evidence to substantiate that

the property would have fetched more value is let in. In such

circumstances, the respondent took the stand that the plea

for setting aside the sale by the appellant was not liable to be

allowed.

F.A.O.No.6 of 2021

6. The amount due under the arbitral award is

Rs.20,82,897/-. In order for realisation of such an amount,

the execution petition was filed by the respondent and the

property belonging to the appellant, who is the 2 nd judgment

debtor, was brought on sale. It is seen that the appellant had

filed an objection to the draft proclamation schedule. The

court has settled the proclamation thereafter, however,

estimating the value of the property to be sold as

Rs.7,50,000/- and the sale proclamation was accordingly

published. The respondent-decree holder had bid the

property. The specific contention of the appellant is that the

building in the property was not separately stated in the

proclamation schedule and the price estimated was very low.

PW1 is the wife of the appellant. She deposed before the court

that the property is worth Rs.5 lakhs per cent. The learned

counsel appearing for the appellant would submit that when

sale of two cents of property would have fetched such a price,

the decree holder brought the whole of 4.05 Ares and the

building thereon on sale. It is accordingly contended that the

F.A.O.No.6 of 2021

sale was held totally in disregard to the mandatory provisions

of Rule 64 of Order XXI of the Code and therefore the sale is

liable to set aside.

7. The learned counsel appearing for the respondent,

on the other hand, would submit that the sale was held after

giving notice to the appellant and after considering his

objections. The property was sold for the value it actually

fetches. Touching to the above, the learned counsel appearing

for the respondent has fallen back on Order XXI Rule 90(3) of

the Code, which provides that "no application to set aside a

sale under this rule shall be entertained upon any ground

which the applicant could have taken on or before the date of

which the proclamation of sale was drawn up. The Apex Court

in Desh Bandhu Guptha v. N.L.Anand and Rajinder Singh

[(1994) 1 SCC 131] held that Order XXI Rule 90(3) of the

Code is a special rule brought on statute by 1976 Amendment

Act and it is like a "caveat emptor" that the judgment debtor

be vigilant and watchful to vindicate pre-sale illegalities or

material irregularities. He should not stand by to procrastinate

F.A.O.No.6 of 2021

the execution proceedings. If he does so, Rule 90(3)

forewarns him that he pays a penalty for obduracy and

contumacy. Equally it is a reminder that the court should be

strict to comply with the procedural part under Rule 54(1A)

before depriving the judgment debtor of the remedy under

Order XXI, Rule 90 of the Code. Hence, where the Court failed

to discharge its duty by non complying with the mandatory

provisions in Order XXI, Rule 90(3) of Order XXI of the Code

does not debar the appellant from raising such infraction.

8. Therefore the contention that in all cases where the

judgmental debtor had opportunity to raise objection before

conducting sale the bar under sub-rule (3) of Order XXI, Rule

90 of the Code cannot be held good. If there occurred non-

compliance of mandatory provisions of Rule 64 of Order XXI,

it cannot be said that the failure of the judgment debtor to

question the proclamation then and there would disentitle him

from raising that question at post sale stage.

9. In Shalimar Cinema v. Bhasin Film Corporation

[(1987) 4 SCC 717] the Apex Court held that the court has

F.A.O.No.6 of 2021

a duty to see that the requirements of Order XXI, Rule 66 are

properly complied with. It is incumbent on the court to be

scrupulous in the extreme. No action of the court or its officer

should be such as to give rise to the criticism that it was done

in a casual way. Therefore, a proclamation of sale drawn

casually without compliance of the mandatory requirement

and a sale held in furtherance thereof is not a sale in the eye

of law.

10. While drawing up the proclamation, it is the

obligation of the court as insisted by Rule 64 of Order XXI of

the Code to decide whether the whole or what portion of the

property of the judgment debtor need be sold. There is

nothing on record to show that the landed property as well as

the building were separately valued and the price estimated.

Without taking into account such necessary aspects in order

to ascertain the probable value of the property, the Execution

Court proceeded to sell the same. When the building in the

scheduled property is not described in the proclamation, the

effect is disastrous. A prospective purchaser would not get

F.A.O.No.6 of 2021

exact details of the property being auctioned and that

certainly would result in selling the property at a low price.

In that view of the matter, the sale of 4.05 Ares of land

along with a building thereon for an amount of Rs.7,50,100/-

when Rs.20,82,897/- was the decree debt, resulted in

substantial injury to the appellant-judgment debtor No.2.

Since the irregularities are so glaring the defect of filing

affidavit in support of the petition by the counsel, instead of

the appellant, shall not be a reason to decline relief,

especially when the wife of the appellant, who is competent

to give evidence on behalf of the husband under Section 120

of the Evidence Act, 1872, has given evidence in court.

Therefore, we find the sale held on 21.05.2019 in E.P.No.51

of 2017 is vitiated by material irregularity and is liable to be

set aside.

11. Accordingly, this appeal is allowed. The sale

conducted on 21.05.2019 is set aside. E.A.No.844 of 2019 in

E.P.No.51 of 2017 in Arbitration Case No.18 of 2015 stands

allowed. Respondent-decree holder is free to proceed with

F.A.O.No.6 of 2021

E.P.No.51 of 2017 in Arbitration Case No.18 of 2019 before

the III Additional District Judge, Thrissur.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr