Jose Joseph v. S. Omanakutty Amma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **WEDNESDAY, THE 25TH DAY OF JANUARY 2012/5TH MAGHA 1933** **OPC.No. 2 of 2012 (O)** **--------------------OS.199/1995 of PRINCIPAL SUB COURT, THIRUVANANTHAPURAM** ## **PETITIONER(S):** **-------------** **JOSE JOSEPH RESIDING AT KULATHOOR HOUSE, CHERUPPUNKAL P.O. MEENACHILL TALUK, KOTTAYAM DISTRICT** **BY ADVS.SRI.R.S.KALKURA** **SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON** ## **RESPONDENT(S):** **--------------** **1. S.OMANAKUTTY AMMA “BALU VIHAR”, KOWDIAR THIRUVANANTHAURAM-695003.** **2. N. BALAGOPALAN NAIR “BALU VIHAR”, KOWDIAR THIRUVANANTHAURAM-695003.** **3. N. SREELATHA “BALU VIHAR”, KOWDIAR THIRUVANANTHAURAM-695003.** **4. JANARDHANAN NAIR “BALU VIHAR”, KOWDIAR THIRUVANANTHAURAM-695003.** **5. N.PADMINI** - **“BALU VIHAR”, KOWDIAR THIRUVANANTHAURAM-695003.** **6. N. RAJAGOPALAN “BALU VIHAR”, KOWDIAR THIRUVANANTHAURAM-695003.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05-01-2012, THE COURT ON 25-01-2012 PASSED THE FOLLOWING:** ## **O.P.(C).NO.2/2012** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF E.P.NO.100 OF 1999 IN O.S.NO.199 OF 1995 ON THE FILE OF THE PRINCIPAL SUB COURT, TRIVANDRUM.** **EXT.P2: COPY OF E.A.NO.1662 OF 2007 IN E.P.NO.100 OF 1999 IN O.S.NO.199 OF 1995 ON THE FILE OF THE PRINCIPAL SUB COURT, TRIVANDRUM.** **EXT.P3: COPY OF THE RESTORATION APPLICATION E.A.NO.366 OF 2009 IN E.P.NO.100 OF 1999 IN O.S.NO.199 OF 1995 ON THE FILE OF THE PRINCIPAL SUB COURT, TRIVANDRUM.** **EXT.P4: COPY OF THE DELAY CONDONATION PETITION AS E.A.NO.365 OF 2009 IN E.P.NO.100 OF 1999 IN O.S.NO.199 OF 1995 ON THE FILE OF THE PRINCIPAL SUB COURT, TRIVANDRUM.** **EXT.P5: COPY OF THE ORDER IN E.A.NO.365 OF 2009 IN E.P.NO.100 OF 1999 IN O.S.NO.199 OF 1995 DATED 23.09.2011 ON THE FILE OF THE PRINCIPAL SUB COURT, TRIVANDRUM.** **EXT.P6: COPY OF THE ORDER IN E.A.NO.366 OF 2009 IN E.P.NO.100 OF 1999 IN O.S.NO.199 OF 1995 DATED 23.09.2011 ON THE FILE OF THE PRINCIPAL SUB COURT, TRIVANDRUM.** ## **RESPONDENTS EXHIBITS: NIL** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **C.R.** ## **S.S.SATHEESACHANDRAN, J. ------------------------------O.P.(C).NO.2 OF 2012 ----------------------------------Dated this the 25[th] day of January, 2012** ## **J U D G M E N T** The above original petition has been filed by the petitioner in E.A.Nos.365 of 2009 and 366 of 2009 in E.P.No.100 of 1999 in O.S.No.199 of 1995 on the file of the Principal Sub Court, Thiruvananthapuram. E.A.No.365 of 2009 was an application for condoning the delay for a period of four months and 27 days in restoring the execution petition, E.P.No.100 of 1999, and an application E.A.No.1662 of 2007 moved for delivery of decree schedule property, both of which had been dismissed for default on 28.11.2008. E.A.No.366 of 2009 was for restoring E.P.No.100 of 1999 to the file of the court. The application for condonation of delay, E.A.No.365 of 2009, was dismissed by the learned Sub Judge, vide Ext.P5 order holding that Section 5 of the Limitation Act is not applicable to execution proceedings. The application for condonation to restore the execution petition dismissed for default beyond the period of 30 days after its dismissal, as **O.P.(C).No2/2012** **2** prescribed under Rule 106 of Order XXI of the Code of Civil Procedure, for short, the 'Code' was held to be not entertainable. In the light of Ext.P5 order, E.A.No.366 of 2009 seeking restoration of the execution petition and also the application referred to above, both of them were dismissed vide Ext.P6 order. Propriety, legality and correctness of Exts.P5 and P6 orders are challenged in the original petition invoking the visitorial jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. The case of the petitioner is thus: The petitioner's father/plaintiff obtained a money decree in O.S.No.199 of 1995 against the respondents. The above plaintiff/decree holder had passed away on 04.08.2009. The decree passed by the trial court had been resisted by way of an appeal, but, it was confirmed with some modification allowing the decree holder/plaintiff to recover an amount of Rs.3 lakhs with interest of 12% per annum from 1.61994 till date of decree and future **O.P.(C).No2/2012** **3** interest at the rate of 6% per annum on the principal amount till realisation. The decree holder moved an execution petition E.P.No.100 of 1999 and got attached an item of immovable property of the judgment debtor. Ext.P1 is the copy of the execution petition. The property attached was brought to sale and it was purchased by the decree holder in auction. After confirmation of the sale and issue of sale certificate, the decree holder filed E.A.No.1662 of 2007 on 20.11.2007 for delivery of the property. Ext.P2 is the copy of that application. The application for delivery and also the execution petition were dismissed for default on 28.11.2008. The decree holder was not aware of the dismissal of the aforesaid petitions since he was completely bed ridden. He executed a power of attorney in favour of the petitioner, his son, to continue with the execution proceedings and only when the power of attorney visited the advocate's office, he got knowledge of the dismissal of the petitions. Thereupon two applications, Ext.P3 application for condoning the delay and Ext.P4 application for restoring the **O.P.(C).No2/2012** **4** execution petition and also the application moved for delivery of the property were filed, but both of them were dismissed by the execution court under Exts.P5 and P6 orders respectively. 3. The learned counsel for the petitioner argued before me that the dismissal of Exts.P3 and P4 applications under the impugned orders was improper, illegal and unsustainable. Rules 105 and 106 of Order XXI of the Code have no application to the facts of the case, and as such, the execution court had gone wrong in holding that the application for restoration should have been moved within thirty days prescribed under sub rule (3) of Rule 106 of Order XXI of the Code, is the submission of the counsel. The applications had been dismissed for default in the present case for non-taking of steps, which, according to the counsel, cannot be construed as one fixed for hearing of the application for delivery and the execution petition. The orders of dismissal of such applications do not fall under Rule 105 of Order XXI of the Code, which applies only where the order has **O.P.(C).No2/2012** **5** been passed on a day fixed for hearing of the application, according to the counsel. Reliance is placed on two unreported decisions by the counsel, both rendered by two learned Single Judges, one by the Madras High Court in **Nattan Ambalam v. Dhanalakshmi (C.R.P.NPD.No.1603 of 2011)** by judgment dated 22.01.2011 and the other by this Court, namely, **C.J.George and others v. State of Kerala (F.A.O.No.280 of 2009)** by judgment dated 06.11.2009 to buttress the submissions made as aforesaid to impeach Exts.P5 and P6 orders passed by the court below as unsustainable under law. 4. I do not find any merit in the challenges raised by the counsel to assail Exts.P5 and P6 orders. First of all, even on the facts presented this was a case where execution of the decree by the confirmation of sale of the property of the judgment debtor to satisfy the decree debt was over. What remained was only delivery of the property sold to the decree holder in execution of the decree. The decree holder had moved Ext.P2 application **O.P.(C).No2/2012** **6** E.A.No.1662 of 2007, for delivery of the property. Ext.P2 application moved after issuing of sale certificate is dated 19.11.2007. That application, no doubt, is covered by Order XXI Rule 95 of the Code. Order XXI Rule 95 of the Code provides for delivery of the property brought to sale in execution of a decree. As distinct from the period of limitation applicable to executing a decree a different rule prescribes the time limit for moving an application for delivery of a property sold in execution of sale. Article 134 of the Limitation Act, 1963 prescribes the period for delivery of possession by a purchaser of the immovable property at a sale in execution of a decree. The period so fixed is one year from the date when the sale becomes absolute. So much so, after confirmation of sale and issue of sale certificate even if Ext.P1 execution petition had been posted along with the application moved for delivery that would no way assist the petitioner to contend that the dismissal of such execution petition and the application were not on a date fixed for hearing. In fact, other than an enquiry on the application moved under **O.P.(C).No2/2012** **7** Order XXI Rule 95 of the Code, which is very limited, except satisfaction by the court that the person sought to be dispossessed by orders of the court belongs to one of the categories of persons set out in that rule, there is no scope of any hearing on such application. An application moved under Order XXI Rule 95 of the Code, which is governed by Article 134 of the Limitation Act, cannot be equated with an application for execution of a decree which has been completed by the sale in execution becoming absolute. So much so, if the application moved under Order XXI Rule 95 of the Code for delivery of the property had been dismissed for default that would not preclude the auction purchaser in moving an application afresh, but, within the time limit of one year from the date of the sale becoming absolute. However, if the application is moved beyond the period of one year, it cannot at all be entertained by the court. Petitioner has no case that Exts.P3 and P4 applications had been moved within the period of one year from the date the sale becoming absolute, which, if so found, would have **O.P.(C).No2/2012** **8** persuaded this Court to overlook the technical objections, to restore his application previously filed, to get delivery of the property covered by the sale. Exts.P3 and P4 applications evidently have been filed beyond the period of one year after the sale becoming absolute, and without looking into the other aspects, both such applications warranted only rejection as not entertainable. 5. The two decisions relied by the counsel, **C.J.George's case** rendered by this Court and **Nattan Ambalam's case** by the High Court of Madras, referred to above, wherein, it has been held that the inherent power of the court under Section 151 of the Code could be invoked to restore the execution petition dismissed for default after condoning the delay in cases where dismissal of such petition was not on a date posted for hearing as under Order XXI Rule 105 of the Code, expressing the view that Rules 105 and 106 of Order XXI of the Code envisage a situation only when the execution petition is posted for hearing, **O.P.(C).No2/2012** **9** have no application to the facts of the case. As already indicated, an application for delivery of a property sold in execution of a decree has to be filed within a period of one year from the date sale becoming absolute. Even the delay in issuing of the sale certificate cannot extend the period of limitation which is to be reckoned from the date of confirmation of sale in applying for delivery of the property sold within the time prescribed under Article 134 of the Limitation Act. The previous application moved by the petitioner for delivery of the property under Order XXI Rule 95 of the Code, E.A.No.1662 of 2007, filed on 23.05.2009 was dismissed for non-taking of steps as ordered by the execution court. When the dismissal was on account of the fault of the decree holder, it could never be stated the dismissal of the petition was for any statistical purpose or administrative reasons. Subsequent application moved for delivery beyond the period of one year from the date of confirmation of sale could not have been entertained by the court, and in such a case, there is no question of condoning the **O.P.(C).No2/2012** **10** delay in filing the time barred application invoking the inherent powers of the court under Section 151 of the Code. The original petition is devoid of any merit, and it is dismissed. **S.S.SATHEESACHANDRAN JUDGE** prp