Gopinathan N. v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH TUESDAY, THE 3RD DAY OF JANUARY 2012/13TH POUSHA 1933 OPC.No. 3869 of 2011 (O) ======================== CQA NO.181/2011-12 IN EP NO.81/2000 IN LAR 14/89 OF SUB COURT, THODUPUZHA PETITIONER(S)/PETITIONER ======================== GOPINATHAN.N., GOPI BHAVAN, THODUPUZHA IDUKKI DISTRICT. BY ADV.SRI.UNNIKRISHNAN.V.ALAPATT RESPONDENT(S) ============= STATE OF KERALA, REP. BY DISTRICT COLLECTOR IDUKKI - 685001. GOVERNMENT PLEADER SHRI ABDUL SHUKOOR THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03-01-2012 , ALONG WITH O.P.(C) NO.4179/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.3869/2011 ## APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER EXT.P2 TRUE COPY OF THE AWARD EXT.P3 TRUE COPY OF THE CHEQUE APPLICATION EXT.P4 TRUE COPY OF THE ORDER IN EA 295/2011 IN EP NO.81/2000 IN LAR 14/89 OF SUB JUDGE, THODUPUZHA EXT.P5 TRUE COPY OF THE ORDER OF THE SUBORDINATE JUDGE, THODUPUZHA //TRUE COPY// ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C). Nos.3869 & 4179 of 2011 -------------------------------------Dated this the 3[rd] day of January, 2012.** ## **JUDGMENT** Exts.P5 and P3, orders are under challenge in these Original Petitions, respectively. 2. Property of petitioners were acquired by the State and reference cases were registered by the learned Sub Judge, Thodupuzha as L.A.R.Nos.14 of 1989 and 5 of 2001. References were answered in favour of petitioners. For realisation of the amount due, petitioners filed E.P.Nos.81 of 2000 and 60 of 2005, in L.A.R.Nos. 14 of 1989 and 5 of 2001, respectively. It is not disputed that properties of respondent - State were attached and sold in auction and purchased by petitioners, in both the cases. It would appear that thereafter, there was some attempt to settle the dispute based on which the matter was referred to the Adalath. In L.A.R.No.14 of 1989, the amount payable to the petitioner was fixed by the Adalath as `14,00,000/- to be paid within one month. Of the said amount, respondent deposited `12,41,380/- in the executing court. That was followed by petitioner filing an application for cheque on 22.09.2011 for withdrawal of the said amount. In the meantime, respondent in O.P.(C) No.3869 of 2011 filed application to set aside the sale. But that application was dismissed by Ext.P4, order dated 04.09.2011 as it was presented beyond the prescribed time. The application for cheque preferred by petitioner was **OP(C)Nos.3869 & 4179/2011** 2 dismissed by Ext.P5, order for the reason that petitioner had purchased the property of respondent in auction, application filed by respondent to set aside the sale was dismissed and hence the application for issue of cheque cannot be maintained. 3. In O.P.(C) No.4179 of 2011, the amount payable to the petitioners was settled in the Adalath as `4,85,550/- out of which respondent deposited `4,35,538/- in the executing court. There, respondent filed Ext.P2, application to set aside the sale after recording full satisfaction of the decree since according to the respondent, the entire amount due under the decree was deposited. That application was dismissed. Following that, the application for cheque preferred by petitioners was dismissed by Ext.P3, order dated 11.08.2011. There also the same reasoning as adopted by learned Sub Judge in Ext.P5, order (in O.P.(C) No.3869 of 2011) is made use of. 4. It is contended by learned counsel for petitioners that though subsequent to the purchase of property in auction by petitioners, as the matter was settled in the Adalath the executing court ought to have set aside the sale and allowed the applications filed by petitioners for cheque. It is contended by learned counsel that even if the applications presented by the respondent to set aside the sale were beyond the prescribed time and hence the executing court could not have set aside the sale, it is within the power of this Court exercising jurisdiction under Article 226 of the Constitution of India to grant relief in such a situation since grant of such relief is necessary in the ends of justice and it does **OP(C)Nos.3869 & 4179/2011** 3 not in any way affect the right or interest of any of the parties to the proceedings. Learned counsel has placed reliance on the decision of Supreme Court in **Sree Jain Swetambar Terapanthi Vid(S) v. Phundan Singh and others (AIR 1999 SC 2322)** and in particular, observations in paragraph 18. 5. Learned Government Pleader for the respondent in both the cases submitted that setting aside the sale of properties would be to the advantage of respondent - State. It is pointed out by the learned Government Pleader that petitioners had not deposited the amount required for purchase of stamp papers and hence no sale certificate has been issued in favour of petitioners. Learned Government Pleader also stated that the amount above referred is deposited in the executing court. 6. No doubt, the applications preferred by the respondent - State to set aside the sale in both the cases are beyond the prescribed time and hence those applications could not be taken into account by the executing court. The question is whether this Court exercising power under Article 226 of the Constitution of India could grant relief to the parties in these proceedings. 7. It is not disputed by the parties that though subsequent to the auction sale in the executing petitions parties have settled the dispute in the Adalath consequent to which the amount payable to the petitioners was fixed **OP(C)Nos.3869 & 4179/2011** 4 and certain deposits are also made by the respondent - State in the executing Court. Admittedly the applications preferred by the respondent - State to set aside the sale of properties were dismissed. 8. Now, petitioners are not desirous of having a sale certificate in their favour and as admitted by both sides petitioners have also not deposited the amount required for purchase of stamp papers; nor has the sale certificates been issued in favour of petitioners. In such a situation, though, provisions of the Code of Civil Procedure (for short, “the Code”) do not enable the respondent – State to get the auction sale set aside, it is not beyond the power of this Court to grant relief. 9. The Supreme Court in the above cited decision was considering an order of injunction passed by the High Court though not in accordance with the provisions of law. The Supreme Court referred to various decisions and held: “From the above discussion, the principle that emerges is that where the High Court has granted some relief by way of social justice or on equitable grounds without violating the rights of other parties, though in law such relief was not permissible, the Supreme Court would not interfere in its discretionary jurisdiction under Article 136 if the order under appeal advances the cause of justice and if it is just and equitable so to do.” **OP(C)Nos.3869 & 4179/2011** 5 10. In the present cases, no question of social justice is involved. But, on equitable grounds I am inclined to grant relief to the respondent so far as setting aside of the sale is concerned. Such a course is necessary to grant relief to the petitioners also pursuant to the settlement in the Adalath. Granting relief in the circumstances would not affect the right of either of the parties. In that situation though, grant of such a relief is not strictly provided by the Code, I am inclined to invoke the power under Article 226 of the Constitution of India, set aside sale of properties of respondent - State in both the execution proceedings and permit petitioners to withdraw the amount in deposit. So far as the balance amount if any payable to the petitioners in each case is concerned, respondent has to deposit such amount if any in the executing court within a period of four (4) months from this day failing which it will be open to the petitioners to realise the balance amount if any by way of execution of the award of the Adalath. ## Resultantly these Original Petitions are allowed as under: i. Auction sale of properties of the respondent - State in E.P.Nos.81 of 2000 in L.A.R.No.14 of 1989 and 60 of 2005 in L.A.R.No.5 of 2001 of the court of learned Sub Judge, Thodupuzha are set aside. ii. The impugned orders are set aside. **OP(C)Nos.3869 & 4179/2011** 6 iii. CQA No.181 of 2011-12 in E.P.No.81 of 2000 (in L.A.R.No.14 of 1989) and CQA No.79 of 2011-12 in E.P.No.60 of 2005 (in L.A.R.No.5 of 2001) of the court of learned Sub Judge, Thodupuzha are allowed. Learned Sub Judge shall issue cheques to the petitioners concerned as requested for in the said applications. iv. Respondent - State is directed to deposit the balance amount if any, (less the amount deposited from the total amount fixed in the Adalath) in the executing court within four (4) months from this day. On such deposit, petitioners concerned could withdraw the amount on application. In case of nondeposit petitioners concerned could execute the award of Adalath for realisation of such balance amount if any. v. In case auction sale of the property have been intimated to the Sub Registrar, learned Sub Judge shall intimate the Sub Registrar concerned of the order of this Court setting aside the sale. **THOMAS P.JOSEPH, Judge.** ## **cks**