Kerala High Court
C.K.Rajan vs Vasumathy on 3 July, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 3RD DAY OF JULY 2024 / 12TH ASHADHA, 1946
WP(C) NO. 15367 OF 2010
AGAINST THE ORDER DATED 20.07.2007 IN E.A. NO.465/1994 IN
E.P. NO.566/1990 IN OS NO.460 OF 1985 OF PRINCIPAL MUNSIFF
COURT, ERNAKULAM AND THE COMMON JUDGMENT DATED 04.12.2009
IN C.M.A. NOS.95/2007 AND 116/2007 OF DISTRICT COURT,
ERNAKULAM
PETITIONERS:
1 KRISHNAN
S/O. KUNJANKUMARI, CHAKKATHUKADU,
SOUTH PARUR P.O., MANAKUNNAM VILLAGE.
2 SANKARAN KRISHNAN S/O. SANKARAN, IN DO. DO.(DIED)
3 PAPPI RAMANAN S/O.PAPPI, IN DO. DO.
4 SHANMUGHAN S/O.LATE AYYAKUMARAN, IN DO. DO
5 KRISHNAN MANOHARAN S/O.KRISHNAN
(WRONGLY SHOWN AS KANNAN MANOHARAN, S/O. KANNAN
IN THE JUDGMENT IN C.M.A.NO.116 OF 2007), IN DO.
DO.
6 AMBILY BIJU (WRONGLY SHOWN AS BIJU AMBILY
IN THE JUDGMENT C.M.A. NO.116 OF 2007),W/O. BIJU,
IN DO. DO.
7 DHANAPALAN S/O. GOPALAN IN DO. DO.
BY ADVS.
SRI.S.V.BALAKRISHNA IYER (SR.)
SMT.GEETHA P.MENON
SRI.P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
RESPONDENTS:
1 VASUMATHY,
W/O. LATE RAGHAVAN ARAYAN,
RESIDING AT THAILAMPARAMBU, MALIKAYIL, CHEMBU
P.O., KOTTAYAM DISTRICT.
2
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
2 T.R.GANESH S/O. DO. IN DO. DO.
3 T.R.MURUGESH S/O.DO. IN DO. DO.
4 RAJAN (DIED)
S/O.KRISHNAN, CHAKKATHATTIL, PARUR MURI,
MANAKUNNAM VILLAGE.
5 RAMU THANKAMMA CHAKKATHUKADU, SOUTH
PARUR P.O.
6 NARAYANI OF DO. DO. DO. (DIED)
7 RAJAN S/O.NARAYANI IN DO. DO.
8 BHARGAVAN, PUTHUVAN NIKIKATHIL SOUTH
PARUR P.O.
9 SANKARAN NARAYANAN VADAKKEVELI DO. (DIED)
10 KUTTAN S/O.KOCHI, MAYAPPILICHIRA,
PADINJATTUM CHERIMEL, THEKKEMURI, VAIKOM VILLAGE,
VAIKOM TALUK.
11 KARTHIKEYAN, CHAKKATHUKADU, SOUTH PARUR
P.O.
12 VENU, CHAKKATHUKADU, SOUTH PARUR P.O.,
NOW WORKING AT FAST TRACK COURT(AD-HOC NO.1),
ERNAKULAM.
13 VALSALAWO.PURUSHAN, PEEKKAD, SOUTH
PARUR P.O.
ADDL. R14 C.R. KUNJUMON, CHAKKATHUDADU HOUSE, SOUTH PARUR
P.O., ERNAKULAM DISTRICT, PIN - 682307
[ADDITIONAL R14 IS IMPLEADED AS THE LEGAL
REPRESENTATIVE OF THE DECEASED R9 AS PER ORDER
DATED 01.07.2015 IN I.A. NO.11758/2014]
ADDL. R15 MADANAN, CHAKKATHUDADU HOUSE, SOUTH PARUR P.O.,
ERNAKULAM DISTRICT, PIN - 682307
[ADDITIONAL R15 IS IMPLEADED AS THE LEGAL
REPRESENTATIVE OF THE DECEASED R6 AS PER ORDER
DATED 19.07.2017 IN I.A. NO.11080/2017]
ADDL. R16 SIVANANDAN, ROHINI, VANDANATH, EROOR WEST P.O.,
THRIPPUNITHURA - 682306
[ADDITIONAL R16 IS IMPLEADED AS PER ORDER DATED
19.07.2017 IN I.A. NO.11081/2017]
3
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
ADDL. R17 SAJEEVAN C.K., AGED 49, CHAKKATHUDADU HOUSE,
MANNAKUNNAM VILLAGE, ERNAKULAM - 682307
[ADDITIONAL R17 IS IMPLEADED AS THE LEGAL
REPRESENTATIVE OF THE DECEASED P2 AS PER ORDER
DATED 19.07.2017 IN I.A. NO.11082/2017]
ADDL. R18 VALSALA,
W/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
ADDL. R19 SREEJA C.R.,
D/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
ADDL. R20 RENJITH C.R.,
S/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
ADDL. R21 SARATH BABU C.R.,
S/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
[ADDITIONAL R18 TO R21 ARE IMPLEADED AS THE LEGAL
REPRESENTATIVES OF THE DECEASED R4 AS PER ORDER
DATED 14.09.2018 IN I.A. NO.11766/2014]
BY ADVS.
SRI.P.MARTIN JOSE
SRI.P.S.APPU
SRI.S.NITHIN ANCHAL
SRI.T.C.SURESH MENON
P.PRIJITH(K/233/2005)
THOMAS P.KURUVILLA(K/420-B/2005)
R.GITHESH(K/630/2002)
HARIKRISHNAN S.(K/497/2019)
S.SREEKUMAR (SR.)(S-571)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03.07.2024, ALONG WITH WP(C).15337/2010, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
4
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 3RD DAY OF JULY 2024 / 12TH ASHADHA, 1946
WP(C) NO. 15337 OF 2010
AGAINST THE ORDER DATED 20.07.2007 IN E.A. NO.465/1994 IN
E.P. NO.566/1990 IN OS NO.460 OF 1985 OF PRINCIPAL MUNSIFF
COURT, ERNAKULAM AND THE COMMON JUDGMENT DATED 04.12.2009
IN C.M.A. NOS.95/2007 AND 116/2007 OF DISTRICT COURT,
ERNAKULAM
PETITIONERS:
1 C.K.RAJAN (DIED)
(WRONGLY SHOWN AS C. RAJAN IN THE JUDGMENT IN
C.M.A. NO.95 OF 2007), S/O. KRISHNAN,
CHEKKATHATTIL, PARUR MURI, MANAKUNNAM VILLAGE.
ADDL. P2 VALSALA,
W/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
ADDL. P3 SREEJA C.R.,
D/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
ADDL. P4 RENJITH C.R.,
S/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
ADDL. P5 SARATH BABU C.R.,
S/O. LATE C.K. RAJAN, CHEKKATHATTIL,
SOUTH PARAVOOR MURI, MANNAKUNNAM VILLAGE - 682037
[ADDITIONAL PETITIONERS 2 TO 5 ARE IMPLEADED AS
PER ORDER DATED 27.07.2017 IN I.A. NO.11431/2014]
BY ADVS.
SRI.S.V.BALAKRISHNA IYER (SR.)
SMT.GEETHA P.MENON
5
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
SRI.P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
RESPONDENTS:
1 VASUMATHY
W/O. LATE RAGHAVAN ARAYAN,
RESIDING AT THAILAMPARAMBU, MALIKAYIL,
CHEMBU.P.O., KOTTAYAM DISTRICT.
2 T.R. GANESH, S/O. DO IN DO DO.
3 T.R.MURUGESH, S/O. DO. IN DO. DO.
4 RAMU THANKAMMA, CHAKKATHUKADU,
SOUTH PARUR P.O.
5 KRISHNAN CHAKKATHUKADU, SOUTH PARUR.P.O.
6 NARAYANI, IN DO.DO.
7 SANKARAN KRISHNAN, IN DO.DO. (DIED)
8 RAJAN CHAKKATHUKADU, IN DO.DO.
9 MADANAN, IN DO.DO.
10 PAPPI RAMANAN, IN DO.DO.
11 BHARAGAVAN, PUTHUVA NIKIKATHIL, SOUTH PARUR.P.O.
12 KRISHNAN MANOHARAN (WRONGLY STATED IN THE
JUDGMENT AS 'KANNAN MANOHARAN'), CHAKKATHUKADU,
IN DO.DO.
13 AMBILY BIJU (WRONGLY STATE IN THE JUDGMENT AS
'BIJU AMBILY') IN DO.DO.
14 DHANAPALAN IN DO. DO.
15 SANKARAN NARAYANAN, (DIED)
VADAKKEVELI,SOUTH PARUR.P.O.
16 SHANMUGHAN, CHAKKATHUKADU, SOUTH PARUR.P.O.
17 KARTHIKEYAN, CHAKKATHUKADU, SOUTH PARUR.P.O.
18 VENU, CHAKKATHUKADU, SOUTH PARUR.P.O.,NOW WORKING
AS FAST TRACK COURT (AD-HOC NO.1), ERNAKULAM.
19 VALSALA W/O. PURUSHAN, PEEKKAD, SOUTH PARUR.P.O.
ADDL.R20 C. R. KUNJUMON, CHAKKATHUKADU, SOUTH PARUR P.O.,
MANAKUNNAM VILLAGE, ERNAKULAM - 682307
[ADDITIONAL RESPONDENT 20 IS IMPLEADED VIDE ORDER
DATED 05.12.2022 IN I.A. NO.11451/2017]
6
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
ADDL.R21 SAJEEVAN C. K., AGED 49, CHAKKATHUKADU HOUSE,
MANAKUNNAM VILLAGE, ERNAKULAM - 682307
[ADDITIONAL RESPONDENT 21 IS IMPLEADED VIDE ORDER
DATED 05.12.2022 IN I.A. NO.11452/2017]
BY ADVS.
MARTIN JOSE P
SRI.P.S.APPU
SRI.S.SREEKUMAR
SRI.T.C.SURESH MENON
P.PRIJITH(K/233/2005)
THOMAS P.KURUVILLA(K/420-B/2005)
R.GITHESH(K/630/2002)
HARIKRISHNAN S.(K/497/2019)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03.07.2024, ALONG WITH WP(C).15367/2010, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
7
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
JUDGMENT
[WP(C) Nos.15367/2010 & 15337/2010]
These Writ Petitions have been filed challenging the
order passed by the Principal Munsiff Court, Ernakulam (for
short 'the execution court') in E. A. No.465/1994 in E. P.
No.566/1990 in O. S. No.460/1985 dated 20.07.2007 and the
judgment passed by the District Court, Ernakulam (for short
'the appellate court') in C. M. A. Nos.95/2007 and 116/2007
dated 04.12.2009.
2. The original petitioner in W.P.(C) No.15337/2010
filed O. S. No.460/1985 against the predecessor in interest of
respondents 1 to 3 therein namely, one Raghavan Arayan for
recovery of advance amount based on a sale agreement. An
agreement for sale was executed between the original
petitioner namely C. K. Rajan and the predecessor in interest
of the respondents 1 to 3, Raghavan Arayan whereby 10
cents of land belonged to Raghavan Arayan was agreed to
be sold to C. K. Rajan for a total consideration of Rs.8,750/-
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
(Rupees eight thousand seven hundred and fifty only). The
sale was not taken place in time as per the agreement.
Therefore, a suit for recovery of the advance consideration
paid was instituted. The suit was decreed. In the execution
proceedings (E. P. No.566/1990), a larger extent of property
comprised in the agreement measuring 1.98 acres belonged
to Raghavan Arayan was attached and put for sale. The sale
was effected and the decree holder C. K. Rajan purchased
the property. Thereafter, the said sale was challenged.
Before the confirmation of the sale itself, the judgment
debtor filed an application under Order 21 Rule 90 of the
Code of Civil Procedure (C.P.C.) as E. A. No.465/1994 to set
aside the sale on the ground of material irregularity. It was
contended that the entire extent of property ought not have
been sold to realise the decree debt. It was also contended
that the amount shown in the sale proclamation was not
correct. E. A. No.465/1994 was dismissed on 30.08.1995.
The sale was confirmed, sale certificate was issued and
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
delivery was effected. The appeal preferred against the said
order was dismissed on the ground of delay. The judgment
debtor challenged those orders before this Court in C.R.P.
No.659/1997. This Court set aside the orders of the
execution court in E. A. No.465/1994 as well as the appellate
court and remanded the matter afresh to the appellate court
to consider the appeal afresh. The appellate court remanded
the matter to the execution court to consider E. A.
No.465/1994 afresh in accordance with law. In the
meanwhile, the decree holder assigned the property which
was delivered to him to various third parties, some of whom
claimed to be 'kudikidappukar' in respect of the property
assigned to them. They were impleaded in the execution
proceedings. Thereafter, after hearing both sides including
the subsequent purchasers, the execution court allowed E.
A. No.465/1994 as per the order dated 20.07.2007 setting
aside the sale on the ground of material irregularity. The
said order was challenged in appeal before the District Court
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
both by the decree holder as well as the subsequent
purchasers. Both appeals were dismissed by the appellate
court as per the common judgment dated 04.12.2009. It is
challenging the order of the execution court as well as the
appellate court, these Writ Petitions have been filed. WP(C)
No. 15337/2010 is filed by the decree holder and WP(C)
No.15367/2010 has been filed by the subsequent
purchasers.
3. The decree holder died during the pendency of these
Writ Petitions and his legal heirs were impleaded.
4. Heard both sides.
5. The judgment debtor filed an application under
Order 21 Rule 90 of C.P.C. to set aside the sale on the
ground of material irregularity mainly on three grounds;
i. The amount shown in the sale proclamation is not
correct.
ii. The publication of sale proclamation was not in tune
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
with the Sub Rule (2) of Rule 54 of Order 21 of C.P.C.
iii. The execution court sold the entire property whereas
only portion of the property was sufficient to satisfy the
decree debt.
6. The execution court as well as the appellate court
found objection Nos.1 and 3 in favour of the judgment
debtor. However, it was found that the 2 nd objection with
regard to the publication of the sale proclamation is not
sustainable.
7. It is settled that it is the obligation of the court to
ensure that only such portion of the property which is
sufficient to meet claim in execution petition alone need to
be sold. Order 21 Rule 64 of C.P.C. mandates that:
"Any court executing a decree may order that
any property attached by it and liable to sale, or
such portion thereof as may see necessary to
satisfy the decree shall be sold, ..........."
8. As stated already, the suit was instituted for
recovery of advance amount paid by the decree holder to
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
the judgment debtor covered by a sale agreement. The
extent of the property agreed to be sold was 10 cents of
land out of 1.98 acres of land sought to be sold. The
consideration fixed for the 10 cents of land in the year 1982
was Rs.8,750/- out of which Rs.7,850/- was paid as advance.
If the value of 10 cents of land in 1982 was Rs.8,750/-, as
rightly held by the execution court as well as the appellate
court, by no stretch of imagination could it be held that 1.98
acres of land which comprises the very same property would
fetch only Rs.18,000/- during 1994. It is true that the sale
cannot be set aside under Order 21 Rule 90 of C.P.C., unless
the court is satisfied that substantial injury has been caused
to the applicant. The very fact that a larger extent of
property measuring 1.98 acres of land was sold for a meager
amount itself is a substantial injury to the judgment debtor.
The execution court on appreciation of materials before it
found that the entire extent of 1.98 acres of land ought not
have been sold to meet the decree claim. It was also found
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
that the amount shown in the sale proclamation was not the
actual amount due. The appellate court on reappreciation of
evidence has confirmed the said findings. This Court under
the exercise of jurisdiction vested with it under Article 227 of
the Constitution of India cannot reappreciate the fact and
upset the said finding of fact.
9. The learned counsel for the petitioners in WP(C)
No.15367/2010 submitted that they are bonafide purchasers
and they have constructed residential houses in the
respective plots purchased by them from the judgment
debtor and if the sale is set aside, substantial injury would
be caused to them. It is further submitted that in fact they
were holding 'kudikidappu' in the respective plots, they have
purchased from the judgment debtor. The learned senior
counsel appearing for the judgment debtor submits that the
judgment debtor disputes the case set up by the purchasers
that they were originally 'kudikidappukars' under the
judgment debtor. The fact remains that all the sales in
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
favour of the subsequent purchasers were taken place
during the pendency of the execution proceedings. The fact
that the subsequent purchasers have put up constructions in
the property is not at all a ground to be taken into account
while considering the application to set aside the sale on the
ground of material irregularity under Order 21 Rule 90 of
C.P.C., especially for the reason that they purchased the
property and construction was made during the pendency of
the proceedings. That apart, the execution court in its order
has observed that the kudikidappukars and purchasers of
property from the decree holder are at liberty to chalk out
their remedies at appropriate stage as permitted by law. I
see no illegality or impropriety in the impugned orders.
Accordingly, these Writ Petitions are dismissed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
BR
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
APPENDIX OF WP(C) 15367/2010
PETITIONERS' EXHIBITS
ExhibitP1 DATED NIL, PLAN (SKETCH) SHOWING PLOTS
DEMARKED.
ExhibitP2 DATED 20-07-2007, TRUE COPY OF THE ORDER
IN E.A.NO.465 OF 1994 IN E.P.
NO.566/1990 IN O.S. NO.460 OF 1985 ON
THE FILE OF THE MUNSIFF'S COURT,
ERNAKULAM.
ExhibitP3 DATED 04-12-2009, TRUE COPY OF THE
OF 2007, DISTRICT COURT, ERNAKULAM
RESPONDENTS' EXHIBITS: NIL
W.P.(C) NO.15367 OF 2010 &
W.P.(C) NO.15337 OF 2010
APPENDIX OF WP(C) 15337/2010
PETITIONERS' EXHIBITS
ExhibitP1 DATED NIL, PLAN (SKETCH) SHOWING PLOTS
DEMARKED.
ExhibitP2 DATED 20-07-2007, TRUE COPY OF THE ORDER
IN E.A.NO.465 OF 1994 IN E.P.
NO.566/1990 IN O.S. NO.460 OF 1985 ON
THE FILE OF THE MUNSIFF'S COURT,
ERNAKULAM.
ExhibitP3 DATED 04-12-2009, TRUE COPY OF THE
OF 2007, DISTRICT COURT, ERNAKULAM
RESPONDENTS' EXHIBITS: NIL
