Jolly Suresh v. Velayudhan Sures, Nadesan Santhoshkumar, Keerthi and Sen Chandrahasan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **WEDNESDAY, THE 16TH DAY OF JULY 2014/25TH ASHADHA, 1936** **OP(C).No. 3112 of 2011 (O) ---------------------------** **EA 212/2003 IN OS 288/1999 of MUNSIFF COURT, VARKALA** ## **PETITIONER(S):** ## **--------------------------** **JOLLY SURESH D/O. LATE NARAYANAN CHANDRAHASAN, 42 YEARS, CHANDRA BHAVANAM CHERUNNIYOOR P.O., VARKALA, THIRUVANANTHAPURAM.** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENT(S):** **----------------------------** ## **1. VELAYUDHAN SURESH** **'PADMATHEERTHAM VEEDU', THACHOD PO CHEMMARATHI VILLAGE.** ## **2. NADESAN SANTHOSHKUMAR, CHAKKI,** **MUDAYIL, VARKALA VILLAGE, THIRUVANANTHAPURAM-695141.** ## **3. KEERTHI, D/O.SANTHOSHKUMAR,** **KAVITHAYIL VEEDU, MYTHANAM, VARKALA VILLAGE THIRUVANANTHAPURAM- 695141.** ## **4. SEN CHANDRAHASAN, S/O.LATE CHANDRAHASAN, CHANDRA BHAVANAM, CHERUNNIYOOR PO, VARKALA THIRUVANANTHAPURAM-695142.** **R3 BY ADV. SRI.R.ANILKUMAR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(C).3112/11-O ## **APPENDIX** ## **PETITIONERS' EXHIBITS:-** EXT.P1:TRUE COPY OF THE COMMON ORDER DT. 25.10.04 IN EA 212/03 EXT.P2:TRUE COPY OF THE JUDGMENT DT.4.10.07 IN W.P(C).35909/04 EXT.P3:TRUE COPY OF DEATH CERTIFICATE DT.13.2.06 ISSUED BY THE VARKALA MUNICIPALITY EXT.P4:TRUE COPY OF THE COMMON ORDER DT. 31.5.08 IN EA 211/03 EXT.P5:TRUE COPY OF THE COMMON JUDGMENT IN CMA 14/08 DT.16-6-09 EXT.P6:TRUE COPY OF THE COMMON ORDER DT. 12.4.11 IN EA 211/03 ## **RESPONDENTS' EXHIBITS:-NIL** _//TRUE COPY// P.A. TO JUDGE_ _**OKB/-**_ ## **K.HARILAL, J.** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** ## **O.P(C). No.3112 of 2011** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** Dated this the 16[th] day of July, 2014 ## **JUDGMENT** The petitioner is the legal heir of the applicant in E.A.No.212/03 in O.S. No.288/99 on the files of the Munsiff's Court, Varkala. The respondents are the decree holder, judgment debtor and the auction purchaser. The 2[nd] respondent's property was sold in auction on 4-8-2003 in favour of the 3[rd] respondent, who is the daughter of the 2[nd] respondent, for an amount of Rs.7 lakhs. The predecessor in interest of the petitioner by name Narayanan Chandrahasan, who was the plaintiff in O.S.No.15/99 on the files of the Munsiff's Court, Attingal, filed an application to set aside the sale in E.A. No.212/03 on the ground that in execution of a decree obtained by him in O.S.No.15/99 there is an attachment made by him over the very same property and that attachment was stood as first charge over the property sold in execution of O.S.No.288/99. But, that attachment was not shown in the _**O.P(C).3112/11-O**_ **:2:** encumbrance certificate produced by the decree holder. Thus, the sale is vitiated by procedural and material irregularities, particularly, when the 3[rd] respondent, who is none other than the daughter of the judgment debtor, is the auction purchaser. 2. Feeling aggrieved, the petitioner filed the above E.A. No.212/03 alleging material irregularity in the sale and sought for an order setting aside the sale. The above petition was filed under Order XXI Rule 90. Similar applications were filed by three other persons as E.A.Nos.211/03, 213/03 and 214/03 alleging the very same allegation that the sale is vitiated by material irregularity caused by non mentioning of the prior attachment effected by them over the property sold in the encumbrance certificate produced before the Court. All these applications were heard together and Ext.P1 common order has been passed setting aside the sale in favour of the 3[rd] respondent by Ext.P1 common order, on a finding that the sale is vitiated by substantial and material irregularities. 3. The 3[rd] respondent challenged Ext.P1 order before this Court in W.P(C) No.35909/04. This Court set aside the sale and remitted all the execution petitions back to the execution Court for fresh consideration and for passing order afresh. _**O.P(C).3112/11-O**_ **:3:** Thereafter, the execution Court heard all the execution applications together again and allowed by setting aside the sale. Feeling aggrieved, the 3[rd] respondent preferred C.M.A. Nos.14/08, 15/08, 16/08 and 17/08. The learned Sub Judge heard all the C.M.As together and set aside the order passed by the learned Munsiff and remitted the case back to the execution Court for fresh disposal of the E.As again, after affording sufficient opportunities to both parties to adduce evidence. Pursuantly, the learned Munsiff again heard all the E.As together and dismissed them on a finding that the non mentioning of the petitioner's prior attachment in the encumbrance certificate is not a material irregularity causing substantial injury. The legality and propriety of the said order dismissing the E.As are under challenge in this Original Petition. 4. The learned counsel for the petitioner submits that the impugned order had been passed against a dead person. The petitioner's father Narayanan Chandrahasan, who was the applicant in the above E.A.No.212/03, was expired as early on 16-1-2006 and the impugned order was passed on 12-4-2011 without making the legal heirs of the deceased Narayanan _**O.P(C).3112/11-O**_ **:4:** Chandrahasan in the party array. The learned counsel further submits that in the C.M.A. filed by the 3[rd] respondent also the petitioners were not made parties, though Narayanan Chandrahasan died much earlier. Therefore, the petitioner and the legal heirs of the deceased Narayanan Chandrahasan were totally unaware about the proceedings in C.M.A. No.15/08 and the fresh consideration culminated in Ext.P6 order, dismissing those applications. In short, the legal heirs are necessary parties after the death of Narayanan Chandrahasan; but they were not given an opportunity of being heard before passing Ext.P5 order in C.M.A. as well as Ext.P6 order under challenge. 5. On merits, it is contended that the sale is vitiated by material irregularity. The attachment in O.S.No.115/99 and other 12 attachments as evidenced by Ext.X1 were not shown in the encumbrance certificate produced by the decree holder. The material irregularity has been proved by examining the concerned Sub Registrar and the production of Ext.X1 files which show the total 20 attachments. But the court below went wrong by finding that the non mentioning of these attachments is not a material irregularity and the same has not caused substantial injury to the petitioner and others. _**O.P(C).3112/11-O**_ **:5:** 6. Per contra, the learned counsel for the respondents advanced arguments to justify the finding that non mentioning of prior attachments 12 in number in the encumbrance certificate is not a material irregularity. According to the learned counsel, no substantial injury will be caused to him. To fortify the point canvassed by him, the learned counsel for the respondents cited **Francis Vs. Navodaya Kuries and Loans (P.) Ltd. (2010(3) KLT 609)** and **Saheb Khan v. Mohd. Yousuffuddin ((2006) 4 SCC 476).** 7. The short point that arises for consideration is whether there is any illegality or impropriety in the findings whereby the court below dismissed E.A. No.212/03 filed by the predecessor in interest of the petitioner. 8. As regards the first point, Ext.P3 shows that the applicant Narayanan Chandrahasan died on 16-1-2006 and the same stands undisputed. Ext.P5 order passed in C.M.A. shows that the said order was passed on 16-6-2009. In Ext.P5 order, Narayanan Chandrahasan, who died on 16-1-2006, is shown as the 1[st] respondent. Similarly, in Ext.P6 order also, the petitioner in E.A.No.212/03 is shown as Narayanan Chandrahasan. In spite of the death of the petitioner in _**O.P(C).3112/11-O**_ **:6:** E.A.No.212/03, as early on 16-1-2006, the respondents have not made the legal heirs of Narayanan Chandrahasan as party in the C.M.A. Consequently, after the remand, the applications including E.A.No.212/03 were heard together despite the fact that the petitioner in E.A.No.212/03 is no more. Thus, it is evident that Exts.P5 and P6 were passed against a dead person in so far as E.A.No.212/03 is concerned. An order passed against a dead person is a nullity. The decisions cited by the respondents do not render any help or aid to justify inherent legal infirmity surfaced at the face of the impugned order. Hence I find that the impugned order is liable to be set aside with respect to E.A.No.212/03 only and the matter is remitted back to the execution Court for fresh consideration. The parties shall appear before the execution Court on 16-8-2014. This Original Petition is allowed. Sd/- **(** _**K.HARILAL, JUDGE)**_ **okb.**