Dhanya v. Krishnankutty and Anil Kumar

**OP (FC).No.699 OF 2019** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** **OP (FC).No.699 OF 2019** **AGAINST THE ORDER IN E.A. 89/2018 IN E.P NO.4/2018 IN O.P.596/2016 OF THE FAMILY COURT, OTTAPPALAM** ## **PETITIONER/PETITIONER:** **DHANYA AGED 35 YEARS D/O. UNNEERI, MULANJOORTHODI VEEDU, CHOORAKKODE (PO.), 676 336, VALLAPUZHA VILLAGE, PATTAMBI TALUK, PALAKKAD DISTRICT.** **BY ADVS. SRI.JAMSHEED HAFIZ SMT.T.S.SREEKUTTY** ## **RESPONDENTS/RESPONDENTS:** **1 KRISHNANKUTTY AGED 45 YEARS, S/O. LATE RAMAN, MOOCHIKKAL VEEDU, AKALOOR (P.O.), 679 302, PAZHAYA LAKKIDI, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 2 ANILKUMAR, VAISHNAVAM UNNIYALANGAL, TIRUCHILANGADI, FAROOK COLLEGE (PO.), 673 632, KOZHIKODE DISTRICT.** ## **R2 BY ADV. SRI.K.RAVI (PARIYARATH)** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 18-02-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No.699 OF 2019** **2** ## **JUDGMENT** **Dated this the 18th day of February 2021** C.S.Dias, J. The petitioner in this original petition had filed O.P.596/2016 before the Family Court, Ottappalam against her husband - the 1[st] respondent for a decree for return of money and gold ornaments that were entrusted to the 1[st] respondent at the time of marriage, as the petitioner's share in her parental properties. 2. The Family Court, by Ext.P1 judgment, decreed the original petition and directed the 1[st] respondent to return to the petitioner 15 sovereigns of gold ornaments or its value of Rs.3,30,000/- with interest at the rate of 12% per annum. As the 1[st] respondent failed to pay the decretal amount within the stipulated time period, the petitioner filed E.P.4/2018 (Ext.P3) before the Family Court, to **OP (FC).No.699 OF 2019** **3** execute the decree and realise an amount of Rs.3,51,000/- and the costs of the proceedings from the 1[st] respondent and his assets. The 1[st] respondent remained absent and was set ex parte by the Execution Court. 3. The property belonging to the 1[st] respondent was attached and put for sale to realise the decree debt. The petitioner filed E.A 81/2018 (Ext.P4) seeking permission of the Court, as provided under Order XXI Rule 72 of the Code of Civil Procedure (in short “ Code”) to purchase the property in the execution proceedings. The Family Court without considering the Ext.P4 application proceeded with the sale of the property. The 2[nd] respondent – the third party bid in the sale and purchased the property for an amount of Rs.3,50,000/-. The petitioner filed E.A 89/2018 (Ext.P5) to set aside the sale on the ground of material irregularity and that substantial injury was caused to her. The 2[nd] respondent filed Ext.P6 written **OP (FC).No.699 OF 2019** **4** objection to Ext.P5 application. The Family Court by the impugned Ext.P7 order dismissed Ext.P5 application. 4. Aggrieved by Ext.P7 impugned order, the petitioner is before this Court. 5. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the 2[nd] respondent. The 1[st] respondent has remained absent before this Court also. 6. The learned counsel appearing for the petitioner argued that the execution proceedings conducted by the Family Court, by not passing any order on Ext.P4 application, but permitting the 2[nd] respondent to participate in the auction as the sole bidder is materially irregular, untenable and unsustainable in law. He contended that substantial injury, hardship and prejudice has been caused to the petitioner due to the irregular procedure adopted by the Family Court. If the petitioner was given an **OP (FC).No.699 OF 2019** **5** opportunity to bid in the sale, she should have certainly quoted a higher price than that of the 2[nd] respondent, which would have been beneficial to the 1[st] respondent also. The 2[nd] respondent is none other than a benami of the 1[st] respondent and they are in cahoots with each other, which unfortunately was unnoticed by the Family Court, but has caused grave prejudice to the petitioner. The Family Court ought not to have proceeded with the execution proceedings without considering and passing orders on Ext.P4 application. In the above factual background, Ext.P7 order is liable to be set aside invoking the supervisory jurisdiction of this Court. 7. The learned counsel appearing for the 2[nd] respondent contended that the original petition is not maintainable because the petitioner has an alternate remedy of appeal as provided under O.XLIII (1)(j) of the Code. The petitioner ought to have alerted the Family Court regarding the pendency of Ext.P3 **OP (FC).No.699 OF 2019** **6** application. The petitioner was adopting a wait and watch policy and has approached this Court only after the sale was conducted. He relied on the decisions of this Court in **Arunima P.T. v. Anoop** [2020 (1) KHC 749] and **Ravikumar T.K. v. Punjab National Bank and Others [** 2019 (2) KHC 421] to fortify his contentions. 8. It is on record that the petitioner had filed Ext.P4 application seeking permission of the Court to purchase the property of the 1[st] respondent in the execution proceedings. A perusal of the impugned order shows that the Family Court was conscious of the pendency of Ext.P4 application. The sole reason for non-consideration of Ext.P4, as seen in the impugned order, is that on 4.8.2018 when the case was posted for sale, there was no submission from the side of the petitioner regarding the said application and hence the same was not considered. **OP (FC).No.699 OF 2019** **7** Accordingly, the Family Court without passing any orders on Ext.P4 application proceeded to the next step. The said course adopted by the Family Court is materially irregular and unsustainable in law. 9. It is rudimentary that when an application under Order XXI Rule 72 of the Code is pending, the same has to be considered. If the application is allowed, then the Court has to fix the reserve price for the property. The Family Court without passing orders on Ext.P4 application proceeded to the next stage of execution, denying the petitioner her valuable right to participate in the bid. 10. This Court in **Theckala Antony v. Thomas and Others** [2008 (4) KLT 486] has held that if a sale is conducted in violation of Order XXI Rule 72 of the Code, it is sufficient enough to set aside the sale without even establishing that any substantial injury caused by such sale. **OP (FC).No.699 OF 2019** **8** 11. In the case on hand, the non-consideration of Ext.P4 application has certainly caused severe prejudice and injustice to the petitioner. If the petitioner had participated in the sale, certainly there would have been a competitive bid between the petitioner and the 2[nd] respondent, which would have been beneficial to both the petitioner as well as the 1[st] respondent. The stoic silence maintained by the 1[st] respondent in the execution proceedings as well as before this Court leads us to the irresistible assumption that the respondents are acting in collusion with each other. 12. In the aforementioned legal and facual analysis of the case, particularly when an application filed under Order XXI Rule 72 of the Code has been kept idle and the 2[nd] respondent has been permitted to bid in the sale after denying the petitioner an opportunity, we have no doubt in our minds that the appellate remedy as provided under Order XLIII (1)(j) **OP (FC).No.699 OF 2019** **9** of the Code is not attracted. As injustice has been caused to the petitioner, and there is irregularity in the procedure adopted, we are of the definite opinion that the sale stands vitiated. Hence, we hold that Ext.P7 order passed by the Family Court is erroneous and unjustifiable. In the result, we allow this original petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, by setting aside Ext.P7 order. Consequently, we allow Ext.P4 application by granting the petitioner permission to participate in the sale proceedings to be conducted by the Family Court in E.P 4/2018. The Family Court shall fix the reserve price of the property sought to be sold and proceed with the execution proceedings from that stage onwards. The 2[nd] respondent will be at liberty to participate in the proposed sale. The parties are directed to appear before the Family Court on 15.3.2021. The Family **OP (FC).No.699 OF 2019** **10** Court shall proceed with E.P 4/2018 and conclude the execution proceedings, as expeditiously as possible. **Sd/-** **A.MUHAMED MUSTAQUE JUDGE** ## **Sd/-** ma/19.2.2021 /True copy/ **C.S.DIAS JUDGE** **OP (FC).No.699 OF 2019** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE JUDGMENT IN O.P. 596/2016 BEFORE THE FAMILY COURT, OTTAPPALAM DATED 06.07.2017.** **EXHIBIT P2** **A TRUE COPY OF THE JUDGMENT IN M.C. 154/2016 BEFORE THE FAMILY COURT OTTAPALAM DATED 28.04.2017.** - **EXHIBIT P3** **A TRUE COPY OF THE EXECUTION PETITION FIELD BY THE PETITIONER E.P. 4/2018 BEFORE THE FAMILY COURT OTTAPPALAM DATED 06.02.2018.** **EXHIBIT P4** - **A TRUE COPY OF THE APPLICATION FIELD BY THE PETITIONER SEEKING PERMISSION TO TAKE PART IN AUCTION E.A. 81/2019 IN E.P. 4/2018 BEFORE THE FAMILY COURT, OTTAPPALAM DATED 18.07.2018.** - **EXHIBIT P5** - **A TRUE COPY OF THE E.A. 89/2018 IN E.P. 4/2018 IN O.P. 596/2016 BEFORE THE FAMILY COURT OTTAPPALM DATED 29.08.2019.** - **EXHIBIT P6** - **A TRUE COPY OF THE COUNTER TO THE E.A. 89/2018 IN E.P 4/2018 IN O.P. 596/2916 BEFORE THE FAMILY COURT OTTAPPALAM DATED 17.01.2019.** - **EXHIBIT P7** **A TRUE COPY OF THE ORDER DATED 02.11.2019 IN E.A. 89/2018 IN E.P. 4/2018 IN O.P. 596/2016 BEFORE THE FAMILY COURT OTTAPPALAM.**