ANANTHAKRISHNAN v. SHANMUGHAN

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN TUESDAY, THE 28TH DAY OF OCTOBER 2014/6TH KARTHIKA, 1936 ## **CRP.No. 516 of 2009 (B)** E.A.NO.581/2007 IN E.P.NO.444/2002 IN OS.NO.318/2001 ON THE FILE OF THE MUNSIFF'S COURT, CHITTUR DATED 10-08-2009 ## REVISION PETITIONER/RESPONDENT/DECREE HOLDER: ANANTHAKRISHNAN, S/O.PONNAN, AGED 49 YEARS, RESIDING AT MANGOTTIL, NEMMARA VILLAGE CHITTUR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.RAJESH SIVARAMANKUTTY SMT.A.PREMAKUMARI ## RESPONDENT/PETITIONER/JUDGEMENT DEBTOR: SHANMUGHAN, S/O.GOPALADAS, AGED 47 YEARS, RESIDING AT AARUKETTY HOUSE TALIKULAM VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.T.H.ABDUL AZEEZ THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28.10.2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.2802/2009 IN C.R.P.NO.516/2009** DISMISSED 28/10/2014 SD/- **K.T.SANKARAN, JUDGE** //TRUE COPY// AHZ/ ## **K.T.SANKARAN, J. --------------------------------------------C.R.P.No.516 of 2009 ---------------------------------------------Dated this the 28[th] day of October, 2014** ## **ORDER** The decree holder-auction purchaser in O.S.No.318 of 2001 on the file of the court of the Munsiff of Chittur is the Revision Petitioner. He is aggrieved by the order dated 10[th] August, 2009 in E.A.No.581 of 2007 in E.P.No.444 of 2002 passed by the executing court by which the court allowed the application under Section 47 of the Code of Civil Procedure filed by the judgment debtor. 2. The judgment debtor owned an extent of 87.5 cents of land. He purchased that property in the year 2000. On 10/01/2001 the judgment debtor entered into an agreement for sale with the decree holder by which the former agreed to sell an extent of 70.5 cents of land to the latter at the rate of Rs.3,500/- per cent of land. An advance amount of Rs.75,000/- was paid by the buyer to the seller. 3. On 17/07/2001, the buyer filed the suit for return of the advance amount. He did not file a suit for specific performance of the agreement for sale. The suit ## C.R.P. NO.516 OF 2009 :: 2 :: was decreed exparte on 03/01/2002. E.P. No.444 of 2002 was filed by the decree holder praying for realisation of the decree amount by attachment and sale of 87.5 cents of land belonging to the judgment debtor, including the extent of 70.5 cents of land which was agreed to be sold by the judgment debtor to the decree holder. The entire extent of 87.5 cents of land was attached before judgment in the suit. That property was sold in court auction and it was purchased by the decree holder himself for a sum of `77,500/-. The court auction sale was held on 20/09/2004. The sale was confirmed. Sale certificate was issued to the decree holder-auction purchaser on 22/01/2005. Delivery of the property was effected on 19/07/2007. 4. On 04/12/2007, the judgment debtor filed E.A.No.581 of 2007 under Section 47 of the Code of Civil Procedure praying to set aside the sale. In the application to set aside the sale, the following contentions were taken by the judgment debtor. Out of the 87.5 cents, an extent of 17 cents was in the possession of Madura and she was residing in a house therein. The agreement for sale was ## C.R.P. NO.516 OF 2009 :: 3 :: entered into after excluding the said 17 cents of land. However, on the application of the plaintiff/decree holder, not only the extent of 70.5 cents of land but the entire extent of 87.5 cents of land including the property in the possession of Madura was attached before judgment. It was contended that the judgment debtor did not get summons in the suit. Service was completed in the suit by substituted service as per a news paper publication. The judgment debtor filed an application for setting aside the exparte decree. However, that application was dismissed. It was contended that in the execution proceedings, no notice was issued before settling the proclamation. Thus the proclamation of sale and the consequent sale are void. 5. The decree holder-auction purchaser contested the application. He contended that notice was received by the judgment debtor in the Execution Petition and notice was issued before settling the proclamation. The notice before settling proclamation was completed by publication of notice. The execution sale, the confirmation thereof and the issue of sale certificate as well as the delivery of C.R.P. NO.516 OF 2009 :: 4 :: possession were all made in accordance with law. The application under Section 47 of the Code of Civil Procedure is not maintainable. No application was filed to set aside the sale either under Rule 89 or Rule 90 of Order XXI of the Code of Civil Procedure. Even the application under Section 47 of the Code of Civil Procedure is barred by limitation, as it was not filed within three years from the date of sale or the confirmation thereof. 6. The court below held that the proclamation was settled by the court without notice to the judgment debtor. The executing court did not consider the question whether the sale of a portion of the property was sufficient to satisfy the decree debt. The court did not apply its mind to this question. Irreparable injury was caused to the judgment debtor. No proclamation was drawn up as per law. It was held by the executing court that the application under Section 47 of the Code of Civil Procedure is maintainable and that it is not barred by limitation. The court held that limitation starts from the date of dispossession and not from the date of sale, following the decision of Supreme C.R.P. NO.516 OF 2009 :: 5 :: Court in **Merla Ramanna Vs. Nallaparaju and others AIR 1956 SC 87** and **1996 (1) KLJ 755 Mrs.Achamma Cyriac Vs. K.F.C. & others** 7. In **Desh Bandhu Gupta Vs. N.L.Anand & Rajinder Singh 1994(1)SCC 131** , the Supreme Court held that absence of notice under Rule 66 of Order XXI of the Code of Civil Procedure would make the sale void. In **AIR 1990 SC 119 Ambati Narasayya Vs. M.Subba Rao** **& another** , the Supreme Court held that sale of only the property sufficient to satisfy the decree debt should be made. The court is bound to ascertain whether sale of the entire extent of land is necessary for realisation of the decree debt. According to the Supreme Court, this is not a mere discretion but mandate of the legislature. It was also held that even if the property consists of one item, the court is bound to ascertain whether sale of a portion of that item is sufficient to satisfy the decree debt. 8. In the present case, an extent of 70.5 cents of land was agreed to be sold by the judgment debtor to the decree holder at the rate of `3,500/- per cent. That means C.R.P. NO.516 OF 2009 :: 6 :: had the sale deed been executed in terms of the agreement, the judgment debtor would have got `2,46,750/- for his property and after deducting the advance amount of `75,000/-, he would have got the balance amount. But the buyer did not file a suit for specific performance of the agreement for sale. He confined the relief in the suit to return of the advance amount of `75,000/-. In execution of that money decree, the decree holder brought the property to sale and purchased not only 70.5 cents but 87.5 cents for a sum of `77,000/-. Thus not only the seller lost the property agreed to be sold but he lost an additional extent of 17.5 cents of land without even getting the price of the property agreed upon. It is relevant to note here that in the draft sale proclamation, the decree holder estimated the value of property at `75,000/-. He knew very well that he agreed to purchase an extent of 70.5 cents of land for a sum of `2,46,750/-. Still, he valued the property and that too after two years of the date of execution of the agreement, at a paltry amount of `75,000/-. The executing court also did not advert to the facts of the case and to the C.R.P. NO.516 OF 2009 :: 7 :: question whether it was necessary to sell the entire extent of land. Thus the judgment debtor lost the entire extent of land for a sum of `77,500/- out of which `75,000/- was the advance amount received by him. This has resulted in an atrocious situation. In **Lal Chand** v. **VIII Addl. District Judge and others [(1997) 4 SCC 356]** , a similar case was considered by the Supreme Court. An extent of 43 decimals of land was agreed to be sold for a sum of `6,625/-. A sum of `2,000/- was paid as advance. A suit was filed by the buyer for specific performance of the agreement. The relief of specific performance was not granted. However, a decree for return of `2.000/- was granted in favour of the buyer. In execution of the decree, an extent of one acre 52½ decimals of land belonging to the judgment debtor was sold in court auction and it was purchased by the decree holder himself for a sum of `12,000/-. The executing court as well as the High Court did not set aside the sale on the application of the judgment debtor. The Supreme Court set aside the sale and held thus: C.R.P. NO.516 OF 2009 :: 8 :: “8. There is yet another infirmity which goes to the root of the matter. It is seen that the respondent, in fact, had a contract to purchase 43 decimals of land and in the execution,managed to give the list of all other lands totaling 1 acre 52-1/2 decimals and the decree for Rs. 10,000/- and odd was sought to be put to execution, and purchased the land for Rs. 12,000/-. In other words, he had over-reached his original agreement which he filed in the suit itself by participating and getting sale in his favour. There is no attempt made for sale of a reasonable portion of the property for realisation of the decree debt. ....” 9. The court below held in the order under challenge that great injustice was caused to the judgment debtor. He was dispossessed and a stranger lady was also dispossessed from a property which was not the subject matter of the agreement for sale. The court held that the application under Section 47 of the Code of Civil Procedure is maintainable and it is not barred by limitation. On facts, the court below held that there was absolute absence of ## C.R.P. NO.516 OF 2009 :: 9 :: notice under Rule 66 of Order XXI of the Code of Civil Procedure. 10. The learned counsel for the petitioner submitted that absence of notice under Rule 66 would not make the sale void but it only makes the sale voidable. He relied on the decision of the Supreme Court in **Deerendranath Vs. Sudheer Chandran (AIR 1964 SC 1300)** and the decision of this Court in **Rajarethna Naikkan Vs. Prameswara Kurup 1997 (1) KLT 777.** 11. The executing court did not advert to the relevant facts and discharge its duty, as held by the Supreme Court in **Ambati Narasayya Vs. M.Subba Rao and another AIR 1990 SC 119** which resulted in a manifest injustice to the judgment debtor. As held by the Supreme Court in **Lal Chand** v. **VIII Addl. District Judge and others [(1997) 4 SCC 356]** , an atrocious situation arose in the case, that is, by executing the decree for return of the advance amount, the judgment debtor not only did not get the balance sale price but he lost the property agreed to be sold and another extent of 17 cents. C.R.P. NO.516 OF 2009 :: 10 :: Great injustice was caused to the judgment debtor and that too since the court lost sight of several material aspects and binding precedents. Added to this, no notice was served under Rule 66 of Order XXI of the Code of Civil Procedure as rightly held on facts by the court below. All these circumstances of the case, compel me to reject the contentions put forward by the petitioner/decree holder. Even though some of the points raised by the petitioner/decree holder may be technically right, the over all justice demands that the respondent should be protected. An Act of court should not prejudice the litigant. The respondent was prejudiced by the total non-application of mind by the court. Notice was served by resorting to substitute service. I am of the view that justice demands that the order for re-delivery passed by the court below should be upheld. 12. The court below directed the judgment debtor to deposit before the executing court a sum of `77,000/-, the amount being the entire decree amount, cost and 5% of the purchase price. The judgment debtor complied with the C.R.P. NO.516 OF 2009 :: 11 :: said direction and the amount was deposited in the court. At the same time, it is to be noted that the decree holder paid a sum of `75,000/- to the judgment debtor on 10/01/2001. Taking into account the entire facts and circumstances of the case, I am of the view that judgment debtor should be directed to pay a sum of `25,000/- to the petitioner/decree holder in addition to the amount directed to be deposited by the court. I am fortified by the decision of the Supreme Court in **Mangal Prasad(dead) by LRs. and another Vs. Krishna Kumar Maheshwari and others AIR 1992 SC 1857,** in granting such an equitable relief to the parties. For the aforesaid reasons, the Civil Revision Petition is dismissed. However, there will be a direction to the respondent to deposit a sum of `25,000/- before the executing court for payment to the revision petitioner/ decree holder. ## **K.T.SANKARAN Judge** skj/ahz/2/11/15