Ganesh Pillai v. Sudevan and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 10TH DAY OF DECEMBER 2012/19TH AGRAHAYANA 1934 CRP.No. 957 of 2006 ( D ) ----------------------- AGAINST THE JUDGMENT DATED 16-11-2005 PASSED IN FAO.80/2003 OF DISTRICT COURT,KOLLAM WHICH ARISES FROM THE ORDER DATED 28-3-2003 IN E.A.NO.314 OF 2002 IN E.P.NO.41 OF 2001 IN OS.1077/1999 of MUNSIFF'S COURT, KOLLAM REVISION PETITIONER(S)/APPELLANT/PETITIONER:: -------------------------------------------- GANESH PILLAI, AGED 38, S/O.SANTHAPPAN PILLAI, MOOLAYIL VEEDU, BEACH NORTH, KOLLAM. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR. RESPONDENT(S)/RESPONDENTS/RESPONDENTS:: --------------------------------------- 1. SUDEVAN, AGED ABOUT 37, FATHER'S NAME NOT KNOWN, THEKKEPANDARAZHIKATH, MUNDAKKAL,KOLLAM. 2. KANNAN, AGED ABOUT 37, S/O.RAMAKRISHNAN ASARI, KAVYA BEAUTY PARLOUR THEVALLY, KOLLAM. 3. P.G.SALIMKUMAR, AGED ABOUT 50, S/O.GOVINDAN, GOPIMANDIRAM, UDAYAMARTHANDAPURAM CHERRY, MUNDAKKAL, EAST VILLAGE,KOLLAM. R1 BY ADVS. SRI.R.D.SHENOY (SENIOR ADVOCATE) I/B SRI.RAJA VIJAYARAGHAVAN. & SRI.M.T.SURESHKUMAR R3 BY ADVS. SRI.N.DHARMADAN (SENIOR ADVOCATE) SMT.D.P.RENU SRI.P.VISWANATHAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: amk ## **K.VINOD CHANDRAN, J** **--------------------------------------------------** C.R.P.No.957 OF 2006 --------------------------------------------------Dated this the 10[th] day of December, 2012. ## O R D E R A _bona fide_ purchaser, who was not aware of the sale in auction by the executing court executing a decree for recovery of money, is before this Court, against the concurrent findings rejecting of his application under Order 21 Rule 90. The suit was filed by the first respondent against the second respondent for recovery of money, numbered as O.S.No.1077/1999 before the Munsiff's court, Kollam. The suit was filed on 13-10-1999 and at the interlocutory stage an attachment before judgment, was ordered on 15-10-1999 in I.A.No.4289/1999. An ex-parte decree having been passed on 21-11-2000, 4 cents of property in Survey Nos.132/2 and 133/2 of Kollam East Village was brought to sale in E.P.No.41/2001. Auction took place on 22-10-2001 and the sale was confirmed on 6-11-2002. The revision petitioner herein approached the court under Order 21 Rule 90 with C.R.P.No.957 OF 2006 2 E.A.No.314/2002. The execution court having dismissed the application on 2-8-2003 finding that the applicant was not a _bona fide_ purchaser, the revision petitioner was unsuccessful in appeal too. 2. In fact before the appellate court, the revision petitioner filed an application to withdraw the application made under Order 21 Rule 90, on the premise that the same would not be maintainable and contending that he has already filed an application under Order 21 Rule 97. The appellate court, found that the application for withdrawal is not maintainable and rejected the same. At the same time, the appellate court also found that since the appellant had admitted by the application for withdrawal that the claim under Order 21 Rule 90 was not maintainable, the appeal also stood dismissed. 3. I have heard learned counsel Sri.P.Viswanathan appearing for the revision petitioner and learned Senior counsel C.R.P.No.957 OF 2006 3 Sri.R.D.Shenoy instructed by Sri.Raja Vijayaraghavan appearing for the respondents 1 and 2 being the decree holder/auction purchaser. 4. The learned counsel for the revision petitioner took me through the impugned orders, and contented that the finding entered into by the execution court that the sale in his favour was collusive is not borne out by any material. The lower court finds that the judgment debtor was an employee of the revision petitioner. It relies on the fact that the judgment debtor did not appear in court despite notice to find collusion. On a reading of the evidence of the sole witness before the execution court, PW1, the revision petitioner, such a case is neither admitted by the witness nor suggested by the respondents. There is not even a question put to the witness with respect to such employment nor has the respondents mounted the box to depose. With respect to the appellate order, the learned counsel would point out that the entire C.R.P.No.957 OF 2006 4 discussion is with respect to the withdrawal application and on finding the same to be unsustainable; the appellate court ought to have considered the appeal on merits, is the contention. The appellate courts' finding that the application for withdrawal would amount to an admission as to the unsustainability of the prayer made under Order 21 Rule 90 cannot be countenanced. 5. Going through the impugned order, I am inclined to hold that having found the application for withdrawal to be unsustainable, the appellate court ought to have definitely considered the appeal on merits. The findings in the order of the execution court especially on collusion is not supported by the evidence led before the execution court. The finding of the execution court that the appellant was not a _bona fide_ purchaser as upheld by the appellate court cannot be sustained. 6. The contention of the learned counsel for the revision petitioner is threefold. The revision petitioner would contend that a C.R.P.No.957 OF 2006 5 bare reading of the schedule shown in Ext.A1 and the attachment schedule would show that the property attached before judgment and sold in auction in execution of the decree is not that covered by Ext.A1; which is the revision petitioner's title deed. The next aspect advanced by the revision petitioner is that Ext.A1, his title deed, would show a consideration of Rs.40,000/- in the year 2000. The sale in Court auction in pursuance of execution of the decree was for a total amount of Rs.1,11,000/-. The learned counsel would point out that it is pertinent that the sale was to the decree holder itself and was for the decretal amount which included the interest till then and is not comparable to the actual market value. The last contention raised is with respect to Rule 330 of the Civil Rules of Practice, which mandates the filing of an affidavit by the decree holder, while bringing the property to sale; clearly showing any encumbrance on the property and that too together with an encumbrance certificate. According to the revision petitioner this C.R.P.No.957 OF 2006 6 would have facilitated the court to issue notice to him and then he could have appeared before court even before the sale was conducted, to raise his valid objections. With respect to the two contentions raised on the boundaries of the property as also the minimal consideration, I am afraid if examined by this Court in revision, that would be over stepping the contours of the jurisdiction conferred under Section 115. It calls for a resolution on facts which the revision petitioner never even attempted before the lower courts. The contention raised with respect to Rule 330 has to be examined with reference to the legal issue raised by the learned senior counsel on the various aspects regarding the application of Rule 90, Rule 97 and Rule 99 of Order 21. 7. At the outset it is pointed out that the necessity of filing an affidavit showing an encumbrance, mandated under Rule 330 is not for issuing notice to the persons interested. It is for the intending purchasers to be made aware of such encumbrances. The C.R.P.No.957 OF 2006 7 learned Senior counsel would argue on the question of whether the application under Order 21 Rule 90 itself was sustainable without drawing support from the findings or the evidence laid before courts. The instant revision arises from the rejection of an application under Order 21 Rule 90. The auction admittedly was conducted on 22-10-2001 on which date the decree holder purchased the property with leave of the court. The sale was confirmed on 2-1-2002. Order 21 Rule 90 postulates an application to set aside sale on grounds of irregularity or fraud. It postulates that if any immovable property has been sold in execution of a decree, the decree holder, the purchaser or a person entitled to share in a ratable distribution or one whose interests are effected for sale may apply to the court for setting aside of the sale on the ground of irregularity or fraud. The limitation for filing such an application is provided under Article 127 of the Limitation Act, 1963, which stipulates 60 days from the date of sale. Admittedly, C.R.P.No.957 OF 2006 8 no application was filed within the limitation period. 8. The learned counsel for the revision petitioner has a contention that when fraud is alleged the limitation would only start from the date of knowledge. In addition to the fact that, the facts available in the above case does not lead to any inference of fraud. The case of the revision petitioner also was only of material irregularity. The contention of the learned Senior counsel is that Order 21 Rule 90 on the face of it is not a provision which could be invoked by the revision petitioner. As noticed above, Order 21 Rule 90 takes in persons whose interests are affected by the sale conducted by the court. The claim of the petitioner is that he has a better title by way of Ext.A1. The title flowing from Ext.A1 would remain unaffected by the sale conducted in execution, if such better title is established. 9. The entitlement of the revision petitioner would have been either under Rule 97 or Rule 99 of Order 21. Rule 97 C.R.P.No.957 OF 2006 9 enables the holder of a decree or the purchaser, in approaching the court, against any obstruction caused in the delivery of the property. The sweep and content of the said provision has been held to take within its fold, even a person who anticipates obstruction, from approaching the court before delivery and without actually having obstructed the delivery. Going by the facts available in this case though the revision petitioner was before the execution court on 6-11-2002, the delivery was effected after that, on 12-8-2003. The revision petitioner has not attempted any obstruction. However, admittedly the revision petitioner had filed an application under Order 21 Rule 97. It is agreed by both counsels that the application stood dismissed for non prosecution. Hence the alternative, which would have been available to the revision petitioner under Order 21 Rule 97, stands closed. 10. What remains is the remedy available under Order 21 Rule 99. Rule 99 could be invoked even after the dispossession by C.R.P.No.957 OF 2006 10 the decree holder or the purchaser. Limitation of course is 30 days from the date of dispossession as provided under Article 128 of the Limitation Act, 1963. The petitioner has not chosen to avail of that remedy and is now prevented from doing the same by operation of limitation. Though, the issue of limitation was not raised before the lower courts, it is trite that the same being a question of law could be raised at any stage. Further we are not concerned with a proceeding under Rule 97 or Rule 99 of Order 21, and were only examining the remedies that were available to a person, who claims title over a property; when faced with the situation of that being sold, in an auction sale by a Court in execution proceedings of a decree in a suit; when he is a stranger to both the suit and the execution. 11. Would then the remedies of the revision petitioner be closed ? To answer the question, this Court draws support from _**1999(1) K.L.T 637 (F.B), Kerala Financial Corporation v.**_ C.R.P.No.957 OF 2006 11 _**Syndicate Bank**_ . That was a case in which the owner of a property mortgaged it to the Kerala Financial Corporation and the Syndicate Bank, the latter being the puisne mortgagee. The Kerala Financial Corporation filed a suit under Section 31 & 32 of the State Financial Corporations Act, 1951 and obtained a decree in execution of which the properties were brought to sale and purchased by the decree holder. The Corporation was also put in possession of the same. Simultaneously or slightly later in time to the suit of the Corporation, a suit was filed by the Syndicate Bank also, against the mortgagor and an ex-parte decree was obtained in execution of which the very same properties were brought to sale and purchased by another person. The purchaser also took delivery of the properties from the Corporation with the aid of the court. 12.The issue was as to what were the rights available to the original mortgagee and the puisne mortgagee and how the same could be enforced. The majority in the said case, held that though C.R.P.No.957 OF 2006 12 the puisne mortgagee's suit need not have been instituted with the original mortgagee in the party array, it was incumbent upon the original mortgage to have impleaded the puisne mortgage. While holding that the original mortgagee had a better title to the property, the majority judgment refused to disturb the delivery effected to the purchaser in the execution filed by the Syndicate Bank. This was on the principle that any person who had a better title over the property could file a suit to enforce his right irrespective of the fact that the property was purchased by another in execution of a decree in another proceedings. 13. This principle laid down by the majority in the decision would further buttress the contention of the learned Senior counsel that the revision petitioners' rights alleged to flow from Ext.A1 title deed remains unaffected by the sale conducted in execution proceedings and the revision petitioner's remedy is not under Rule 90 of Order 21. As already held the remedies available C.R.P.No.957 OF 2006 13 under Rule 97 and Rule 99 of Order 21 is no more available for reason of the default of the revision petitioner as also the operation of limitation. It is also pertinent that Rule 101 of Order 21 deals with a situation, when an application under Rule 97 or Rule 99 is filed challenging a sale in execution. There is a clear mandate in the provision that, then the question relating to right, title or interest in the property shall be determined by the court dealing with the application and not by a separate suit. That mandate however cannot be looked upon as providing a restriction from filing a suit. It only enables the applicant under Rule 97 or Rule 99 to call for a determination of the question regarding the right, title or interest; by the execution court itself without being relegated to the remedy of a separate suit. It is also apposite to refer to Rule 104 which provides that when an order has been made under Rule 101 or Rule 103, then that shall be subject to the result of any suit pending on the date of commencement of a proceeding in which C.R.P.No.957 OF 2006 14 such an order is made. Rule 92 of Order 21 also has to be noticed which provides that, if no application is made under Rule 89, Rule 90 or Rule 91, then irrespective of the fact whether an application is made, the court is bound to confirm the sale, after the period of 60 days. However, the said rule which makes a sale absolute, in the event of there being no application filed as provided in Rule 89, Rule 90 or Rule 91; specifically provides for a third party challenge to the judgment-debtors title by filing a suit against the auction purchaser, the decree holder and the judgment debtor by sub-Rule 4 of Rule 92 of Order 21. It is not from sub-rule(4) of Rule 92 of Order 21 that the third party derives the entitlement to file a suit, but the provision which mandates the confirmation of sale in court auction, recognizes the rights of a third party to challenge the judgment-debtors title and provides for the parties who are to necessarily participated in such a proceeding. 14. In the facts and circumstances of the case, despite C.R.P.No.957 OF 2006 15 this Court finding that the impugned orders of the lower courts are not supported by any material as revealed from the evidence led before the lower courts, this Court exercising revisional jurisdiction is of the opinion that the rejection of the application made under Order 21 Rule 90 is proper for the reason of it being not maintainable. Hence though not for the reasons stated by the appellate court, this Court is of the opinion that the rejection of the application under Order 21 Rule 90 is to be confirmed, but for reasons stated above. Needles to say that the petitioner shall be entitled to avail of the remedy noticed by this Court of a separate suit, subject however to the laws of limitation. The civil revision petition hence stands dismissed and the parties are left to suffer their respective costs. **K.VINOD CHANDRAN,** amk