F.A.O. No. 28 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944 F.A.O.NO. 28 OF 2019** **AGAINST THE ORDER DATED 10.01.2019 IN E.A.NO.109 OF 2018 IN E.P.NO.133 OF 2014 IN O.S.NO.125 OF 2011 OF THE SUB COURT,** ## **KOCHI** ## **APPELLANTS/PETITIONERS:** - **1 FASALUDDIN K.S. AGED 45 YEARS, S/O SAIDU, H.NO.20/625, KATIPPARUTHI, POWRASAMITHI JUNCTION, PALLURUTHY, KOCHI-682006.** - **2 JAMALUDDIN, S/O SAIDU, HOUSE NO.4/235 E, KATIPPARUTHI HOUSE, KARUTHARAPARAMBU, MARAMPILLI P.O., ALWAYE-683105.** - **3 SUDHIR, S/O. SAIDU, KATTIPPARUTHY HOUSE, H.NO. 2/809, LAZAR ROAD, FORT KOCHI VILLAGE, KOCHI-682001.** - **4 SHAMEER, S/O. SAIDU, KATIPPARUTHI HOUSE, 2/809, LAZAR ROAD, FORT KOCHI-682001.** - **5 SHAKEER** - **S/O. SAIDU, KATIPPARUTHI HOUSE, 19/475-A, GOVT. HOSPITAL ROAD, PALLURUTHI, KOCHI-682006.** **BY ADVS.** **T.K.PANKAJASHAN PILLAI** **SRI.R.SIVASANKAR RAO SRI.SAJI PANKAJAKSHAN** 2 F.A.O.No.28 of 2019 ## **RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTORS:** - **1 SHAHEER** **AGED 44 YEARS, S/O. ALI, C.C. 50/431 A, MANIMALA ROAD, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK, KOCHI, ERNAKULAM DISTRICT (DECREE HOLDER)** - **2 SAKEENA,** **AGED 47 YEARS, W/O. LATE K.S. HANEEF, H.NO. 2/838, PULLUPALAM ROAD, FORT KOCHI VILLAGE, PIN-682001.** - **3 SAHNA @ FATHIMA,** - **AGED 29 YEARS, D/O.K.S. HANEEF, H.NO. 2/838, PULLUPALAM ROAD, FORT KOCHI VILLAGE, PIN-682001.** - **4 MUBINA,** **AGED 28 YEARS, W/O. SHANU AND D/O. K.S. HANEEF, H.NO.2/838, PULLUPALAM ROAD, FORT KOCHI VILLAGE, PIN-682001.** **BY ADVS.** **SRI.N.C.JOSEPH** **SRI.M.H.HANIS** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR** **FINAL HEARING ON 04.08.2022, THE COURT ON 19.08.2022 DELIVERED THE FOLLOWING:** 3 F.A.O.No.28 of 2019 ## **JUDGMENT** Ajithkumar, J. This is an appeal filed under Order XLIII, Rule 1(j) of the Code of Civil Procedure, 1908. 2. The appellants filed E.A.No.109 of 2018 in E.P.No.133 of 2014 in O.S.No.125 of 2011 under Order XXI, Rule 90 of the Code. That petition was dismissed by the Sub Court, Kochi (Execution Court), as per the order dated 10.01.2019. The said order is under challenge in this appeal. 3. The appeal was admitted to file on 13.02.2019. Further proceedings in the execution petition were stayed as well. 4. Heard the learned counsel appearing for the appellants, the learned counsel appearing for the 1[st] respondent-decree holder and also the learned counsel appearing for respondents 2 to 4. 5. The 1[st] respondent filed O.S.No.125 of 2011 seeking a decree for realisation of money. Respondents 2 to 4 and one Sri.Saidu were the defendants. The claim of the 1[st] respondent 4 F.A.O.No.28 of 2019 was that he was entitled to realise Rs.24 lakhs from Sri.Haneef and as he died, the suit was instituted against his legal representatives. During the pendency of the suit, Sri.Saidu died. No other person was impleaded after his death. The suit was decreed on 30.07.2014 in the following terms:- “a) The plaintiff is entitled to get a sum of Rs.24,00,000/-(Rupees twenty four lakhs only) with interest at the rate of 6% per annum thereon from the date of suit (25.06.2011) till realisation from the defendants 1 to 3. However, it is made clear that the liability of defendants 1 to 3 shall be to the extent of the property inherited by them from late Haneef. b) The suit against the 4[th] defendant stands abated. c) The plaintiff is not entitled to get charge over the plaint schedule property. d) The plaintiff is entitled to get the costs of the suit from defendants 1 to 3.” 6. The 1[st] respondent filed E.P.No.133 of 2014. The petition schedule property was attached and brought on sale. It is seen that at that time the appellants raised an objection that not only respondents 2 to 4 but Sri.Saidu and the appellants, being his brothers, also have share in the property 5 F.A.O.No.28 of 2019 of Sri.Haneef. Since the decree was passed only against the property inherited by respondents 2 to 4 from Sri.Haneef, the entire property could not be sold. 7. The Execution Court overruled the said objection and sale was proclaimed. The sale took place on 07.09.2018. The 1[st] respondent-decree holder, after obtaining leave under Order XXI, Rule 72 of the Code, bid the property. Immediately, the appellants filed E.A.No.109 of 2018, seeking to set aside the sale on the ground of fraud and material irregularity. The definite contention of the appellants was that the decree was against respondent Nos.2 to 4, that too, to the extent of the property inherited by them from late Sri.Haneef and therefore the properly of Sri.Saidu or the appellants, who are his brothers or Sri.Haneef, ought not to have been sold in auction. Even if the said aspects were brought to the notice of the court, the same were not reckoned with. In the said circumstances, the sale was sought to be set aside. 8. The 1[st] respondent resisted that petition on the grounds that judgment-debtors who are respondent Nos.2 to 6 F.A.O.No.28 of 2019 4 did not disclose that there was any other legal representative, despite filing an application asking them to disclose that fact. The estate of the deceased Sri.Haneef has been properly represented, and therefore, the appellants have no right to challenge the validity of the same. The appellants raised a similar objection earlier and the same was overruled by the Execution Court and that order has become final, without there having any appeal or revision. Therefore, the appellants have no right now to challenge the validity of the same. Sub-rule (3) of Order XXI, Rule 90 of the Code debars them from raising such contention also. Accordingly, the 1[st] respondent sought to dismiss the petition. 9. The Execution Court after hearing both sides, took the view that since the objection raised by the appellants on an earlier occasion against the proclamation of the property for sale on the same grounds was rejected, the petition could not be entertained. In that regard a decision of the Calcutta High Court in **Baleshwar Mishra v. Jameel Khan [2005 KHC 5014:AIR 2005 Allahabad 49]** was relied on. It was 7 F.A.O.No.28 of 2019 further observed that no irregularity or fraud in publishing the proclamation or conducting the sale was substantiated and for that reason, the petition was not liable to be entertained. 10. The learned counsel appearing for the appellants would contend that the Execution Court totally went wrong in dismissing E.A.No.109 of 2018. It is contended that the decree allowed the 1[st] respondent to realise the decree debt from the assets inherited by respondents 2 to 4 alone and as such, bringing the entire property, which includes shares of deceased Sri.Saidu and also the appellants, on sale has vitiated the entire proceedings. The process of the sale was in violation of the directions in the decree and therefore, the sale is not sustainable in law. It is further contended that the fundamental rule that the Execution Court cannot go behind the decree has been violated. Accordingly, it is contended that the sale conducted on 07.09.2018 is illegal and liable to be set aside. 11. The learned counsel appearing for the 1[st] respondent, on the other hand, would contend that this is a 8 F.A.O.No.28 of 2019 case where bar under sub-rule (3) of Order XXI Rule 90 of the Code specifically applies. Respondents 2 to 4 either feigned ignorance or failed to disclose the details of the legal representatives of Sri.Saidu, and therefore, the objection of the appellants cannot now be taken into account. The theory of substantial representation was also mooted as a reason not to entertain the objection now raised by the appellants. 12. A decree passed without impleading one or a few of the legal representatives of the deceased defendant may not always invalidate the decree; provided the estate of the deceased is properly represented in the suit. The said principle laid down by the Apex Court in **N. K. Mohammed Sulaiman Sahib v. N.C.Mohammed Ismail Saheb and others [AIR 1966 SC** **792]** and reiterated repeatedly is the trite law. But whether there has been substantial representation or not is not a question involved in this case. This is a case where the decree has been passed allowing the 1[st] respondent to proceed against the property inherited by respondent Nos.2 to 4 alone. Since the decree specifically excluded the property of the deceased, 9 F.A.O.No.28 of 2019 Sri.Saidu, the question has to be considered in the light of the specific direction in the decree. ## 13. Order XXI, Rule 64 of the Code reads,- “ **64. Power to order property attached to be sold and proceeds to be paid to person entitled.-** 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, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.” The rule implies that the court executing the decree may proceed to sell any property which is liable to sell. Its necessary corollary is that the Execution Court has no right or authority to sell a property that is not liable for sale. The obligation of a court under Rule 64 of Order XXI of the Code is so strict that any violation thereof will render the sale vitiated. If such a mandatory direction regarding the sale of a property is violated, the same definitely work out illegality not merely affecting the proclamation and sale, but affecting the legality of the whole process of sale. 10 F.A.O.No.28 of 2019 ## 14. In **Fathima Beevi v. Joly John [2022 (2) KLT** ## **396]** , this Court held,- “26. Touching to the above issue 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 & 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 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. Here is a case where the Court failed to discharge its duty by non complying with the mandatory provisions in Order XXI, Rule 64 of the Code and therefore the Rule 90(3) of Order XXI of the Code does not debar the appellant from raising such a contention.” 11 F.A.O.No.28 of 2019 15. The Execution Court, however, approached the issue in a different perspective. It is true that the appellants raised an objection regarding the saleability of the entire property. Since the 1[st] respondent resisted that plea, the matter was considered by the Execution Court in detail and ruled against the appellants. They did not challenge the order at that stage. Stating that the said order thereby has become final, the Execution Court refused to entertain the petition. The Execution Court took the view that the right of the appellants to challenge the same is barred under sub-rule (3) Order XXI, Rule 90 of the Code. That view is incorrect in the light of the proposition of law laid down in the aforesaid decision. It is more so, because the Execution Court ignoring the provisions of Order XXI, Rule 64 of the Code and the direction in the decree brought the entire property on sale. The 1[st] respondent does not have a claim that respondents 2 to 4 inherited the entire estate of the deceased Sri.Haneef. Recognising that position, the decree has been passed as well. That being the state of affairs, the Execution Court should not 12 F.A.O.No.28 of 2019 have been asked by the 1[st] respondent to put the entire property on sale. The proclamation should have been confined to the share of respondents 2 to 4 in the property. In that view of the matter, the sale has become illegal. It can only be be said that sale of the share of the appellants, even if it is a minor share, affects their right materially. Therefore, the illegality that occurred in the sale resulted in substantial injury to the appellants. 16. The principle of **Baleshwar Mishra** (supra) that has been followed by the Executive Court has no application in this case. In that case, the objection raised was regarding some procedural defects in the proclamation and conducting of sale. Observing that the objector did raise such an objection and the court rejected it, the bar under Order XXI, Rule 90(3) of the Code gets attracted. Here is a case where the property was sold in total disregard to the provision under Order XXI, Rule 64 of the Code and also in violation of the direction of the decree. Therefore, the said decision has no application on the facts of this case. 13 F.A.O.No.28 of 2019 17. In view of what are stated above, we are of the view that the order of the Executive Court in E.A.No.109 of 2018 is incorrect. The share of respondents 2 to 4 in the petition schedule property, alone is available for sale in execution of the decree in O.S.No.125 of 2011. In the sale in question, the entire property was sold. So much so, the sale is liable to be set aside and we do so by setting aside the impugned order. The Execution Court will take fresh steps for the sale of the property as allowed by the decree in O.S.No.125 of 2011. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr