Hamsath Beevi v. Saffiyath Beevi (CRP No. 3067 of 2000 (F) and connected petitions)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 ## **CRP.No. 3067 of 2000(F)** AGAINST THE ORDER DATED 09/11/2000 IN EA.73/1999 IN OS.103/1980 OF SUB COURT, MAVELIKKARA REVN. PETITIONER: CR.PETITIONER: --------------------- HAMSATH BEEVI, KAPPIL THOTTAM, MALLIKAIKADA, NADUMKUNNAM, PATHANAPURAM, KOLLAM DISTRICT. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.RAMPRASAD UNNI.T. SRI.T.K.AJITH KUMAR. RESPONDENT: PETITIONER: --------------- SAFFIYATH BEEVI, SAFFEENA MANZIL, AYAPARAMPU MURI, CHERUTHANA VILLAGE, ALLEPPEY DISTRICT. ADV. SRI P.R VENKITESH THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/04/2011, ALONG WITH CRP NOS.204 AND 1370 OF 2001, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN, J.** **-------------------------------------------------C.R.P. NO. 3067 OF 2000 and C.R.P.NOS.204 & 1370 OF 2001 --------------------------------------------------Dated this the 6[th] day of April, 2011** ## **O R D E R** All these Civil Revision Petitions are filed by Hamsath Beevi, the second judgment debtor in E.P.No.235 of 1985 in O.S.No.103 of 1980, on the file of the Sub Court, Mavelikkara. 2. One Mathew Philip filed the suit against Muhammed Khan Rawther and Hamsath Beevi (revision petitioner) for realisation of money. The suit was decreed on 14.8.1981. Pending suit, the immovable properties belonging to the defendants were attached before judgment. In execution of the decree, six items of properties were sold in auction. The decree holder purchased property in auction. The sale was conducted on 20.1.1988 and it was confirmed on 25.2.1988. 3. Before the sale was conducted, the plaintiff died on 25.2.1986 and his legal representatives, namely, Graceamma Philip, Mohan K.Philip and Anila Philip were impleaded as additional parties. 4. The second judgment debtor, Hamsath Beevi, filed E.A.No.470 C.R.P. NOS.3067/2000, 1370/2001 & 204/2001 :: 2 :: of 1997 under Section 47 of the Code of Civil Procedure to set aside the sale. That application was dismissed on 5.11.1997. The judgment debtor No.2 challenged that order in C.R.P.No.2102 of 1997. The Revision was dismissed on 24.2.1998. The matter was taken in appeal to the Honourable Supreme Court and the Special Leave Petition was dismissed on 3.4.1998. The mother of the second judgment debtor filed a claim petition in respect of the property sold in court auction as E.A.No.75 of 1989 and that application was also dismissed. The mother of the first defendant had filed O.S.No.7 of 1989 restraining the decree holders from obtaining delivery of item No.4 in the sale proclamation. O.S.No.7 of 1989 was dismissed on 27.6.1992. 5. On 28.7.1993, the legal representatives of the decree holder sold the properties which were bid in auction, in favour of Rajamma and Harindra Babu. Harindra Babu died and his legal representatives are Jayasree, Harikrishnan, Aparna and Madhavi, who are additional respondent Nos. 4 to 7 before the court below in the present proceedings. On 25.4.2000, Rajamma executed an assignment deed in favour of Saffiyath Beevi. Saffiyath Beevi sought to implead herself in the present proceedings and filed E.A.No.280 of 2000. The court below allowed that application, against which, the second judgment debtor filed C.R.P.No.3067 of 2000. C.R.P. NOS.3067/2000, 1370/2001 & 204/2001 :: 3 :: 6. E.A.No.167 of 1998 was filed by the second judgment debtor Hamsath Beevi, praying to declare that the building in item No.4 was not sold in court auction and that the sale relates only to the land and not the building. Mohan K.Philip, one of the legal representatives of the decree holder and the assignees of the legal representatives of the decree holder, namely, Rajamma and Harindra Babu, filed E.A.No.73 of 1999 for correction of the sale proclamation by including the building also in the schedule to the proclamation. It was also prayed that the sale certificate may also be corrected so as to include the building in item No.4. 7. E.A.No.167 of 1998 filed by Hamsath Beevi (2[nd] judgment debtor) was dismissed by the order dated 8.7.1998. That order was challenged by the second judgment debtor in C.R.P.No.1415 of 1998, which was disposed of on 24.9.1998. By the order dated 24.9.1998, the order passed by the court below in E.A.No.167 of 1998 was set aside on the ground that the court below did not properly consider the question whether the building was also sold in the court auction. In the order in C.R.P.No.1415 of 1998, it was held thus: “.. The real question is whether the building was also sought to be sold along with the land. For this purpose the court has to look into the property that was sold. If, as a matter of fact, value of the building was also taken into consideration in fixing the value of the property, surely the building will be included. Probably it was by a mistake that the building was not included. But these are all matters C.R.P. NOS.3067/2000, 1370/2001 & 204/2001 :: 4 :: which the court below should have considered. Hence I set aside the impugned order and direct the court below to consider E.A.167/98 de novo and find out whether what was the property that was actually sold. If there is a mistake either in the proclamation schedule or in the sale certificate, the auction purchaser or the decree holder can file a petition for correction of the same. Parties are allowed to adduce evidence.” 8. After the order in C.R.P.No.1415 of 1998 was passed, the executing court considered E.A.No.167 of 1998 and E.A.No.73 of 1999 together. Though an opportunity was afforded to the parties to adduce evidence, as per the order in C.R.P.No.1415 of 1998, the parties chose not to adduce any evidence. The executing court, by the common order dated 15.12.2000, dismissed E.A.No.167 of 1998 filed by the second judgment debtor and allowed E.A.No.73 of 1999, filed by Mohan K.Philip and others. C.R.P.No.1370 of 2001 is filed by the second judgment debtor against the order in E.A.No.167 of 1998. C.R.P.No.204 of 2001 is filed by the second judgment debtor against the order allowing E.A.No.73 of 1999. 9. The question involved in C.R.P.No.3067 of 2000 is whether Saffiyath Beevi, who got assignment as per assignment deed dated 25.4.2000, is entitled to be impleaded as an additional party. It is not disputed that she has got assignment of the property. The court below thought that her presence is necessary for the purpose of taking steps in C.R.P. NOS.3067/2000, 1370/2001 & 204/2001 :: 5 :: the execution proceedings including delivery of possession. By impleading Saffiyath Beevi, no prejudice would be caused to any of the parties. As the assignment in her favour is not disputed, the court below was justified in allowing E.A.No.280 of 2000. Therefore, C.R.P.No.3067 of 2000 is liable to be dismissed and it is accordingly dismissed. 10. In so far as C.R.P.Nos.204 and 1370 of 2001 are concerned, the question to be considered is whether the house in item No.4 was also sold in court auction. It is not disputed that there was an attachment before judgment. It is also not in dispute that this particular item of property where the house is situated was also attached. Though in the present proceeding the revision petitioner contended that the house was not attached, the court below was not inclined to accept that contention for the reason that the attachment schedule specifically mentions about the house also in this particular item. Another reason stated by the court below for rejecting this contention is that the direction in C.R.P.No.1415 of 1998 was to arrive at a finding as to whether the house was sold in court auction and not whether the house was attached. The court below noticed that the value of the property shown in the attachment schedule in respect of this item was shown in the sale proclamation as well. In other words, there is no difference between the value shown in the attachment schedule and the value shown in the sale proclamation. This was taken C.R.P. NOS.3067/2000, 1370/2001 & 204/2001 :: 6 :: as a circumstance to indicate that the house was also sold in court auction. 11. The court below perused the trial court records. The attachment report prepared by the Amin which contains the schedule of the property, was also perused. The schedule shows that 32 cents of land and the structures therein were attached. The report of attachment shows that item No.4 contains a concrete building bearing No.IV/74-75, Haripad Panchayat and another building bearing No.76. The same value as shown in the attachment schedule was shown in the sale proclamation. 12. The court below also noticed that though an opportunity was afforded to the revision petitioner to adduce evidence, no evidence was adduced by her. In spite of affording several opportunities, no evidence was also adduced to prove the value of the building at the time of attachment or sale. The available records would indicate that the house was also attached and the property having the same valuation as per the attachment schedule was sold in court auction as well. In the absence of any clinching evidence to indicate that the house was not sold and what was intended to be sold was the land excluding the house, the only conclusion that could be arrived at, as was rightly held by the court below, is that the house was also sold in court auction. The court below held that C.R.P. NOS.3067/2000, 1370/2001 & 204/2001 :: 7 :: failure to specifically mention the building in the sale proclamation schedule was only an “accidental omission”. ## 13. In **Pradeep Kumar** v. **State Bank of Travancore** (1998 (2) KLT 927) it was held that the mistake crept in the sale proclamation, sale certificate and delivery account can be corrected by invoking the wide powers of the Court under Sections 151 and 153 of the Code of Civil Procedure. The same view was expressed by the Rajasthan High Court in **Brahmananda Choudury** v. **Prahlad Panigrahi and another** (AIR 1975 Orissa 115), **Sobla and another** v. **Jethmal** (AIR 1961 Rajasthan 191) and **Aziz Ullah Khan and others** v. **Court of Wards** (AIR 1932 Allahabad 587), which were referred to in 1998 (2) KLT 927. ## 14. In **P.Udayani Devi** v. **V.V.Rajeshwara Prasad Rao** (AIR 1995 SC 1357), an item of property within clear boundaries was sold in court auction and it was purchased by a stranger. The judgment debtor contended that only one house in the property was sold and another house and vacant land was not sold. The Supreme Court rejected the said contention. It was held: “7. .... The position in law is well settled that “certificates of sale are documents of title which ought not to be lightly regarded or loosely construed”. (See: Rambhadra Naidu v. Kadhiriyasami Naicker, (1921) 48 Ind App 155: (AIR C.R.P. NOS.3067/2000, 1370/2001 & 204/2001 :: 8 :: 1922 PC 252) In Sheodhyan Singh v. Musammat Sanichara Kuer (1962) 2 SCR 753 : (AIR 1963 SC 1879) in the sale certificate the boundaries as well as the plot number were mentioned but there was a mistake in mentioning the plot number. It was held: “The matter may have been different if no boundaries had been given in the final decree for sale as well as in the sale certificate and only the plot number was mentioned. But where we have both the boundaries and the plot number and the circumstances are as in this case, the mistake in the plot number must be treated as mere misdescription which does not affect the identity of the property sold.” (P.759) (of SCR): (at p.1881 of AIR.) ...... ...... 9. According to respondent No.1 only property (II) was sold in the auction sale and is covered by the sale certificate. The plain terms of the sale certificate do not lend support to this contention. According to the sale certificate the entire property falling within the boundaries was the subject matter of the sale. In view of the said description in the sale certificate it is not possible to split up the property into two portions and confine the sale certificate to a part of the property and thereby alter the boundaries of the property that has been sold.” ## 15. In **P.Udayani Devi** v. **V.V.Rajeshwara Prasad Rao** (AIR 1995 SC 1357), the Supreme Court held that the question as to what was sold C.R.P. NOS.3067/2000, 1370/2001 & 204/2001 :: 9 :: in execution of the decree being a question of fact, the finding made by the executing court cannot be set aside by the High Court in the exercise of its revisional jurisdiction. It was held: “10. Moreover, it is settled law that the question as to what was sold in execution of the decree is a question of fact. (See: S.M.Jakati v. S.M.Borkar 1959 SCR 1384 at P.1491): AIR 1959 SC 282 at P.290). In the present case, the Subordinate Judge, after an examination of the sale certificate and other documents, has recorded a finding that the entire property falling within the boundaries mentioned in the sale certificate has been sold. That was a finding of fact. The High Court, in exercise of its revisional jurisdiction, was not justified in reopening the finding of fact recorded by the Subordinate Judge. The judgment of the High Court cannot, therefore, be upheld and must be set aside.” 16. For the aforesaid reasons, I am of the view that the court below was right in dismissing E.A.No.167 of 1998 and in allowing E.A.No.73 of 1999. Therefore, C.R.P.Nos.1370 of 2000 and 204 of 2001 are liable to be dismissed. All these Civil Revision Petitions are dismissed. No order as to costs. **(K.T.SANKARAN) Judge** ahz/ ## **K.T.SANKARAN, J.** **-------------------------------------------** **-------------------------------------------** **C.R.P.NO. 3067 OF 2000, C.R.P.NO.1370 OF 20001 & C.R.P.NO. 204 OF 2001** ## **O R D E R** **6[th] April, 2011** **-------------------------------------------**