K.K.Subramanian, Gouri and Rajesh v. Madhavan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN FRIDAY, THE 3RD DAY OF FEBRUARY 2012/14TH MAGHA, 1933 CRP.No. 943 of 2007 ( ) ----------------------OS.598/1996 of MUNSIFF COURT, PARAVUR REVISION PETITIONER(S)/PETITIONERS/JUDGMENT DEBTORS: --------------------------------------------------------------------- 1. K.K.SUBRAMANIAN, S/O.KRISHNAN, AGED 65, KARINGAPPARAMBIL, PALATHURUTH MURI CHENDAMANGALAM VILLAGE, PARUR TALUK. 2. GOURI, W/O.K.K.SUBRAMANIAN, KARINGAPPARAMBIL, PALATHURUTH MURI CHENDAMANGALAM VILLAGE, PARUR TALUK. 3. RAJESH, S/O.SUBRAMANIAN, KARINGAPPARAMBIL, PALATHURUTH MURI CHENDAMANGALAM VILLAGE, PARUR TALUK. BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN ABRAHAM M.GEORGE RESPONDENT(S)/DECREE HOLDER: ---------------------------- MADHAVAN, S/O.KRISHNAN, AGED 71, KARINGAPPARAMBIL, PALATHURUTH MURI CHENDAMANGALAM VILLAGE, PARUR TALUK. R,R1 BY SRI.S.SHYAM THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP 943/2007 ORDER IN I.A.NO.2682 OF 2007 IN C.R.P.NO.943/2007 ## DISMISSED 3.2.2012 SD/- K.T.SANKARAN, JUDGE ## **K.T.SANKARAN, J.** ------------------------------ ## C.R.P.No.943 of 2007 ------------------------------Dated this the 3[rd] day of February, 2012 ## **O R D E R** The Civil Revision Petition was heard in detail on 3.1.2012 and order was dictated in open court on 3.1.2012 itself, dismissing the Civil Revision Petition. Before the judgment was signed, it was submitted by the learned counsel for the petitioners that the disputes between the parties were being settled. The counsel requested to post the case as 'to be spoken to'. 2. Accordingly, the case was posted as 'to be spoken to' on 6.1.2012. The learned counsel appearing for both the parties submitted that the matter was settled and that some more time was required to finalise the terms of settlement. The case was therefore adjourned. 3. The revision petitioners and the respondent entered into a compromise on 17.1.2012, which was signed by all the CRP 943/2007 2 parties in the revision and the counsel appearing for the parties. The compromise petition was filed in court on 31[st] January, 2012. In the compromise petition, the revision petitioners are shown as petitioners 1 to 3 and the respondent is shown as the fourth petitioner. The terms of the compromise read as follows : “5. Accordingly, the disputes are settled and the parties have agreed that, the sale conducted by the executing court may be set aside on the following terms : i. The petitioners 1 to 3/revision petitioners/judgment debtors shall pay sum of ` 3,00,000/- (Rupees Three lakhs only), within a period of two months from today, to the fourth petitioner/respondent/decree holder as full and final satisfaction of all his claim. (ii) On payment of the aforementioned sum by the petitioners 1 to 3/revision petitioners/judgment debtors to the fourth petitioner/ respondent/decree holder within the time stipulated, the sale conducted on CRP 943/2007 3 18.12.2012 shall stand set aside and the property shall absolutely belong to the second petitioner/second revision petitioner/ second judgment debtor. 6. Hence, it is humbly prayed that this Hon'ble Court may be pleased to accept this compromise and order that in the event of petitioners 1 to 3/revision petitioners/judgment debtors pay a sum of ` 3,00,000/- (Rupees Three Lakhs only) to the fourth petitioner/respondent/ decree holder, within a period of two months from today, the sale conducted on 18.12.2012 shall stand set aside and the property shall absolutely belong to the second petitioner/ second revision petitioner/ second judgment debtor.” 4. The compromise petition is allowed as prayed for. The compromise petition shall form part of the order. If the revision petitioners comply with the terms of the compromise petition, the sale conducted in E.P.No.297 of 2003 in O.S.No.598 of 1996, Munsiff's Court, North Paravur shall stand set CRP 943/2007 4 aside. Needless to say that the confirmation of sale shall also stand set aside in such an event. The sale certificate, if any, issued shall be surrendered by the decree holder and it shall be cancelled. The parties shall be free to approach the executing court for appropriate orders in the matter of compliance of the terms of the compromise. **K.T.SANKARAN** **JUDGE** csl CRP 943/2007 5 ## **K.T.SANKARAN, J.** --------------------------- ## C.R.P.No.943 of 2007 --------------------------- Dated this the 3[rd] day of January, 2012 ## **O R D E R** The questions of law which arises for consideration in this revision are the following : (1)Whether an application under Section 47 of the Code of Civil Procedure is maintainable to declare that the sale held by the executing court is void on the ground that the executing court did not apply its mind to the question whether sale of the entire extent of land sought to be sold was necessary for realising the decree debt. The further question to be considered is whether only an application under Rule 90 of Order 21 would be maintainable in such circumstances ? (2)If an application under Section 47 can be filed in such CRP 943/2007 6 cases, when does the period of limitation begin to run? 2. The first petitioner and the respondent are brothers. Petitioners 2 and 3 are the wife and son of the first petitioner. The respondent filed O.S.No.598 of 1996 on the file of the court of the Munsiff of North Paravur against the petitioners for realisation of money. The principal amount claimed in the suit was ` 24,536/-. The suit was decreed. E.P.No.56 of 2002 was filed by the decree holder for realisation of the decree debt by sale of 8 cents of land with a residential building thereon. The property belonged to the second petitioner. On 5.10.2001, the executing court passed the following order : “5.10.01 JD2 prays for payment by monthly instalment of ` 2,000/- D.H.Consents. JD2 is directed to pay the amount due under the decree in monthly instalments of ` 2,000/bigning from 5.11.01 onwards. In case of two successive defaults, D.H. shall be entitled to proceed afresh for undertaking the balance in lump. E.P. is dismissed.” Since the instalments were not paid as directed in the order, CRP 943/2007 7 execution was proceeded with. A notice under Rule 66 of Order 21 was issued to the petitioners/judgment debtors. They did not file any objections to Rule 66 notice. Proclamation of sale was settled and the property was ordered to be sold on 18.12.2002. The property was sold in court auction and it was purchased by the decree holder himself. No application was filed to set aside the sale either under Rule 89 or under Rule 90 or Order 21 CPC. The sale was confirmed on 20.2.2003. 3. The petitioners filed W.P.(C) No.17563 of 2004 before this Court seeking to set aside the order passed by the executing court directing delivery of the property. The Writ Petition was disposed of by the order dated 20[th] August, 2007 directing the executing court not to deliver the property till 15[th] October, 2007 to enable the parties to settle the matter. The mater was not settled between the parties. However, the petitioners filed E.A.No.280 of 2007 under Section 47 of the Code of Civil Procedure to declare that the sale held by the executing court is void. The executing court dismissed the application which is under challenge in this revision. CRP 943/2007 8 4. The learned counsel for the petitioners submitted that the property at the time of sale was worth more than ` 10 lakhs. The executing court did not consider the question whether sale of a portion of the property would be sufficient for satisfying the decree debt. This is an illegality which caused to the route of the mater which would make to the consequent sale null and void. It is submitted that if the sale is void, the judgment debtors would be entitled to raise that contention at any time when the property sought to be delivered. 5. The learned counsel for the respondent submitted that the only remedy was the petitioners had to apply either under Rule 89 or under Rule 90 of Order 21 of the Code of Civil Procedure. The sale is not null and void even if the executing court fails to consider the question whether sale of a portion of the property belong to the judgment debtor is sufficient to satisfy the decree. Such an objection could be taken only in an application under Rule 90 of Order 21 and not by way of an application under Section 47 of the Code of Civil Procedure. The CRP 943/2007 9 learned counsel also submitted that even if it is to be taken that an application under Section 47 was maintainable, it should have been filed within three years from the date of sale. The counsel submitted that Article 137 of the Limitation Act would apply to an application under Section 47 of the Code of Civil Procedure and the time begins to run when the right to apply accrues. 6. The learned counsel for the petitioners relied on the decision numbered in Ambati Narasayya vs. M.Subba Rao and another (AIR 1990 Supreme Court 119) wherein it was held thus : “It is of importance to note from this provision that in all execution proceedings, the court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small, the court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of law only such portion of the CRP 943/2007 10 property should be sold. This, in our opinion, is not just a discretion, but an obligation imposed on the court. Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction.” The counsel also relies stress on the last sentence in paragraph 7 that the sale held without examining the above aspect would be illegal and without jurisdiction. The counsel for the petitioner submitted that if the sale is illegal and without jurisdiction that means it is null and void. If the sale is null and void, it is necessary to make an application under Rule 90 of Order 21 to set aside the sale and it would be sufficient, if an application is filed by the judgment debtor under Section 47 of the Code of Civil Procedure. 7. The counsel for the petitioners also relied on Desh Bandhu Gupta vs. N.L.Anand & Rajinder Singh (1994 (1) SCC 131) wherein it was held that pre-sale illegalities are covered by CRP 943/2007 11 Section 47 of the Code of Civil Procedure while post-sale illegalities are covered by Rule 90 of Order 21 CPC. In Desh Bandhu Gupta's case, the Supreme Court also held that if there is a total absence of drawing up of a proclamation of sale, the sale would be null and void. In Desh Bandhu Gupta's case, the Supreme Court also held thus : “The non application of mind to the question whether sale of a part of the property would satisfy the decree debt is a material irregularity doing substantial injury to the appellant attracting Order 21 Rule 90.” 8. In Govinda Menon vs. Varkey (1970 KLT 440), a Full Bench of this Court held that lack of notice under Rule 66 of Order 21 to the judgment debtors before settlement of proclamation would not make the sale void, but it has to be set aside in appropriate proceedings and Article 127 of the Limitation Act would apply to such an application. 9. In Rajarethna Naikkan vs. Parameswara Kurup (1997 CRP 943/2007 12 (1) KLT 777), relying on Dhirendranath vs. Sudhir Chandra (AIR 1964 SC 1300), A.P.V.Rajendran vs. S.A.Sundararajan (AIR 1980 Madras 123) and S.A.Sundararajan vs. A.P.V.Rajendran (AIR 1981 SC 693), it was held that any objection to the drawing up of a sale proclamation would be within the purview of Order 21 Rule 90 of the Code and not outside it and certainly not within the purview of Section 47 of the Code of Civil Procedure. ## 10. In AGM Constructions (P) Ltd. vs. Shibu Kumar (2010 (4) KLT 189), it was held thus : “19. Thus, post-sale proceedings commence from the stage of settlement of proclamation of sale. It follows that proceedings up to the stage of settlement of proclamation are pre-sale proceedings coming under Section 47 of the Code. Compliance with Rule 64 of Order XXI while settling the proclamation of sale being part of the integral process of settling and publishing the proclamation of sale, non-compliance of Rule 64 of Order XXI while drawing up the proclamation of sale must be taken as post-sale illegality or irregularity falling under Rule 90 of Order XXI.” CRP 943/2007 13 11. In the light of the aforesaid decisions, it is clear that the judgment debtor would not be entitled to maintain an application under Section 47 of the Code of Civil Procedure to declare the sale as void, on the ground that the executing court failed to consider the question whether it was necessary to sell the entire extent of land for realisation of the decree debt or whether it was sufficient to sell a portion of the property. That may be a ground for the judgment debtor to apply under Rule 90 of Order 21 to set aside the sale on the ground of material irregularities in publishing and conducting the sale. If Rule 90 of Order 21 applies to a particular case, he cannot invoke Section 47 of the Code of Civil Procedure to apply for a relief which could be granted in an application under Rule 90 of Order 21. When a specific provision is made to set aside the sale on specified grounds, the judgment debtor seeking to avoid the sale should resort to that remedy within the time provided there and he cannot by-pass that remedy and apply under Section 47 of the Code of Civil Procedure and thereby avoid the rigour of limitation CRP 943/2007 14 for an application to set aside the sale. To invoke Rule 90 of Order 21, the judgment debtor has to make the application within 60 days from the date of sale as provided under Article 127 of the Limitation Act. An application under Section 47 can be filed within the period of three years as provided under Article 137 of the Limitation Act. 12. For the aforesaid reasons, I am of the view that the application filed by the petitioners under Section 47 of the Code of Civil Procedure was not maintainable before the court below, as rightly held by the court below. 13. The next question to be considered is from what point of time the period of limitation begins to run in the case of an application under Section 47 of the Code of Civil Procedure. Only the residuary Article, Article 137 of the Limitation Act applies to an application under Section 47 of the Code of Civil Procedure. Article 137 reads as follows : -------------------------------------------------------------------------------------------Description of application Period of Time from which period limitation begins to run -------------------------------------------------------------------------------------------- CRP 943/2007 15 137. Any other application Three years When the right to apply for which no period of accrues. limitation is provided elsewhere in this division. ---------------------------------------------------------------------------------------------------- 14. The time begins to run under Article 137 when the right to apply accrues. The right to apply to set aside a sale accrues from the date of sale. Even in the case of setting aside the sale, Article 127 provides for running of the period of limitation from the date of sale. Date of confirmation of sale or the date of making the application for delivery are irrelevant for the purpose of Article 127. When the prayer in the application under Section 47 is to declare that the sale is invalid or void, necessarily the right to apply accrues from the date of sale. In the present case, the sale was held on 18.12.2002 and it was confirmed on 20.2.2003. The application under Section 47 CPC was filed beyond the period of three years from this case. The contention put forward by the learned counsel for the petitioners that at every point of time when delivery is attempted, a fresh cause of action arises to enable the petitioners to apply under Section 47 of the Code of Civil Procedure cannot be accepted at all. If such contention is accepted, a judgment debtor would be CRP 943/2007 16 entitled to protract the proceedings and there would be no finality to the execution proceedings, the execution, sale and delivery of the property. Therefore, I am not inclined to accept the contention put forward by the learned counsel for the petitioners that the application was filed within time. In the admitted factual situation, even assuming that an application under Section 47 was maintainable, it was not filed by the petitioners within time and the application was barred by limitation. Even in this Civil Revision Petition, attempts were made by a learned Single Judge of this Court to settle the disputes between the parties. The case was adjourned on several dates to enable the parties to settle the case. Even the parties were called to the chambers of the learned Single Judge and an attempt was made to settle the case. All the attempts made to settle the case were futile. For the aforesaid reasons, the Civil Revision Petition is dismissed. However, there will be no order as to costs. **K.T.SANKARAN** CRP 943/2007 17 csl