Kerala High Court
Esiya P vs Raheena on 13 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
MAT.APPEAL (EXE.) NO. 3 OF 2022
AGAINST THE ORDER DATED 17.03.2022 IN E.A.NO.4 OF 2020 IN
E.P.NOI.2 OF 2016 IN O.P.NO.39 OF 2013 ON THE FILES OF
THE FAMILY COURT, KALPETTA
APPELLANT:
ESIYA P.,
AGED 35 YEARS, W/O. RAFEEQUE, PUNNAKKODAN
HOUSE, MEPPADI, KAPPAMKOLLY, KOTTAPPADI
VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT-673
577.
BY ADVS.
MATHEW KURIAKOSE
K.R.ARUN
J.KRISHNAKUMAR (ADOOR)
MONI GEORGE
RESPONDENTS:
1 RAHEENA
AGED 39 YEARS, D/O. ABU, PALLIYALITHODI HOUSE,
PUTHOOR POST, KOTTAKKAL, MALAPPURAM DISTRICT-
676 573.
2 MUHAMMED SHAFI,
S/O. ALAVI, PUNNAKKODAN HOUSE, KAPPAMKOLLY,
WAYANAD DISTRICT-673 577.
2
Mat.Appeal (Exe.) No.3 of 2022
3 USMAN,
KUNNMMAL HOUSE, KOOTTILANGADI, MALAPPURAM
DISTRICT-676 506.
BY ADVS.
R1 BY MUHAMMED SHAMEEM
R3 BY BOBY THOMAS
R3 BY SAJARUDHEEN PARAKKAL
R3 BY C.C.ANOOP
THIS MAT APPEAL (EXECUTION) HAVING COME UP FOR
FINAL HEARING ON 03.03.2023, THE COURT ON 13.03.2023
DELIVERED THE FOLLOWING:
3
Mat.Appeal (Exe.) No.3 of 2022
JUDGMENT
P.G. Ajithkumar, J.
The appellant filed E.A.No.4 of 2020 in E.P.No.2 of 2016
in O.P.No.39 of 2013 before the Family Court, Kalpetta
seeking to set aside sale invoking the provisions of Order XXI,
Rule 90 of the Code of Civil Procedure, 1908. The Family
Court dismissed that Execution Application on 17.03.2022.
The said order is under challenge in this appeal filed under
Section 19(1) of the Family Courts Act, 1984.
2. On 19.04.2022, the appeal was admitted. The
respondent entered appearance pursuant to notice. As per the
order dated 29.04.2022 parties were referred for mediation.
Mediation failed.
3. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the
respondents.
4. The 1st respondent is the decree holder. He filed
O.P.No.39 of 2013 seeking a decree for realisation of money,
including maintenance. That original petition was decreed on
22.07.2014. The decree was put in execution. In the
Mat.Appeal (Exe.) No.3 of 2022
execution petition, E.P.No.2 of 2016, the appellant has filed
E.A.No.5 of 2016 invoking the provisions in Order XXI, Rule
58 of the Code. Her claim was that the property attached and
proposed to be sold in E.P.No.2 of 2016 belonged to her as
she obtained it by virtue of gift deed No.4495/2014 dated
06.12.2014. That application was dismissed as per the order
dated 15.10.2018. The property was later sold. The appellant
thereafter filed E.A.No.4 of 2020 invoking the provisions of
Order XXI, Rule 90 of the Code seeking to set aside the sale.
5. The appellant contended that at the time of
attachment the 2nd respondent-judgment debtor had no right in
the property; since the property was already assigned in favour
of the appellant on the basis of gift deed No.4495/2014 dated
06.12.2014. The property is worth more than Rs.20 lakhs. But it
was sold for a meagre amount. The upset price fixed by the court
was too low. It was absolutely unnecessary to sell whole of the
property. The Family Court by doing so violated the mandatory
provisions of Rule 66, Order XXI of the Code. Pointing out such
irregularities and fraud in publication of proclamation and sale of
the property, E.A.No.4 of 2020 was filed.
Mat.Appeal (Exe.) No.3 of 2022
6. The 1st respondent filed a counter refuting all the
allegations in the application. It was contended that the
auction sale on 21.11.2019 was conducted by following all the
necessary requirements in law. The 1 st respondent bid the
property with all bona fides and for sufficient consideration.
The Family Court as per the order in E.A.No.5 of 2016 held
that the appellant does not have any right in the property.
That order was affirmed by this Court. Other allegations of
irregularities and fraud in publication of proclamation and sale
are denied also.
7. No evidence was let in. The Family Court, after
hearing both sides, considered the rival contentions and held
that E.A.No.4 of 2020 was filed without sufficient cause and
accordingly it was dismissed. The contention of the appellant
is that the 2nd respondent had no right in the property at the
time of attachment, and therefore, there could not be a valid
sale. The learned counsel appearing for the appellant would
submit that the property having an area of more than 7 cents,
which abuts a prominent public road was sold for a paltry sum
and for that reason itself, the sale is invalid. The learned
Mat.Appeal (Exe.) No.3 of 2022
counsel would submit that sub-rule (2) of Rule 66 Order XXI
of the Code allows a court executing a decree to sell the
property that would be sufficient to satisfy the decree alone
and not more than that. Whereas, in this case, property worth
more than Rs.20 lakhs was sold for realisation of an amount
of Rs.7,95,000/- due as per the decree. Since the mandatory
provision of sub-rule (2) of Rule 66 Order XXI of the Code was
violated, the sale is liable to be set aside.
8. Per contra, the learned counsel appearing for the
1st respondent would submit that E.A.No.4 of 2020 itself was
not maintainable having the claim of the appellant was
already rejected by the Family Court and this Court. It is
pointed out that provisions of Rule 90, Order XXI of the Code
can be invoked by a person having interest in the property
alone and when the Family Court and this Court held that the
appellant could not have any valid claim to the property,
which was sold in auction, no petition for setting aside the
sale at her instance is possible. It is also contended by the
learned counsel for the 1st respondent that E.A.No.4 of 2020
was filed beyond the period of limitation.
Mat.Appeal (Exe.) No.3 of 2022
9. Sub-rules (1) and (2) Rule 90 of Order XXI of the
Code reads,-
"90. Application to set aside sale on ground of
irregularity or fraud.-(1) Where any immovable
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,
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
conduction it.
(2) No sale shall be set aside on the ground of
irregularity or fraud in publishing or conducting it
unless, upon the facts proved, the Court is satisfied
that the applicant has sustained substantial injury by
reason of such irregularity or fraud."
The categories of persons who can file an application under
Rule 90 are enumerated. The decree holder, the purchaser,
any other person entitled to share in a rateable distribution of
assets, or any person whose interest are affected by the sale,
is entitled to file an application to set aside the sale.
Therefore, the person applies to set aside a sale should have
a subsisting interest in the property, which was sold. Sub-rule
(2) contemplates that even in a case where there occurred
Mat.Appeal (Exe.) No.3 of 2022
irregularity or fraud in publishing or conducting the sale, the
court cannot set aside the sale unless the applicant proved
that he sustained substantial injury by reason of such
irregularity or fraud.
10. A person, who can legitimately claim some right or
interest in the property alone can therefore file a petition and
such a person alone can allege substantial injury on account
of the sale of the property. The appellant is the sister of the
2nd respondent judgment debtor. She claimed right and
interest in the property on the basis of the gift deed No.4495
of 2014 dated 06.12.2014. The Family Court dismissed that
application and the appeal filed by the present appellant as
Mat.Appeal (Exe.) No.6 of 2019 was dismissed as per the
judgment dated 19.02.2020. A copy of the said judgment was
made available for our perusal. The fact that the said appeal
was dismissed has fairly been stated by the appellant in the
appeal memorandum itself. When the right claimed by the
appellant in the property in question was found against her,
she cannot claim right in the property any more. Since she
has no right in the property, she is disentitled to file an
Mat.Appeal (Exe.) No.3 of 2022
application under Rule 90, Order XXI of the Code. For that
reason E.A.No.4 of 2020 is liable to be dismissed.
11. The sale was conducted on 29.11.2019. An
application for setting aside the sale under Order XXI, Rule 90
of the Code shall be filed within a period of sixty days in view
of Article 127 of the Limitation Act, 1963. The appellant filed
E.A.No.4 of 2020 beyond that period. The contention of the
appellant was that the period of limitation was applicable only
to the judgment debtor and not to a stranger. That contention
is untenable. Article 127 of the Limitation Act applies to an
application filed to set aside a sale in execution of a decree;
be it filed by the judgment debtor or any other person. Article
127 only exemplifies that an application filed by the judgment
debtor also is covered by that Article. Therefore, E.A.No.4 of
2020 was barred by the law of limitation.
12. Since the claim of the appellant in the property in
question was considered by the Family Court and this Court
and rejected her claim, she is disentitled from agitating that
question again. The right claimed by the appellant in E.A.No.4
of 2020 is also based on the gift deed No.4495/2014 dated
Mat.Appeal (Exe.) No.3 of 2022
06.12.2014. Therefore, consideration of that question is
barred by the principles of res judicata and for that reason
also the appellant cannot have a plea that the sale is invalid.
13. For the reasons stated above, we hold that the
Family Court rightly had dismissed E.A.No.4 of 2020.
Therefore, this appeal lacks merits and is only liable to be
dismissed. Hence, the appeal is dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
