Kuttysankaran Gupthan v Balakrishnan and Venugopalan

_**CRP.542/17**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 5[TH] DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943 CRP NO. 542 OF 2017** **AGAINST THE ORDER/JUDGMENT IN CMA 141/2016 OF ADDITIONAL DISTRICT COURT, OTTAPALAM, PALAKKAD OS 63/2001 OF SUB COURT, OTTAPPALAM, PALAKKAD** ## **REVISION PETITIONER/S:** KUTTYSANKARAN GUPTHAN AGED 70 YEARS AGED 70 YEARS, S/O.APPU GUPTHAN, VALAPPILTHODI KADAMPAZHIPPURAM AMSOM DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.RAJESH SIVARAMANKUTTY SRI.ISAAC GEORGE ## **RESPONDENT/S:** 1 BALAKRISHNAN AGED 64 YEARS, S/O.KALAPARAMBIL SANKARA GUPTHAN, KADAMPAZHIPPURAM AMSOM DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2 VENUGOPALAN S/O.ACHUTHAN NAIR, KOORIKKATTIL, THOTTARA AMSOM, MANNAPATTA AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV SRI.P.JAYARAM THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 3.8.2021, THE COURT ON 05.11.2021 DELIVERED THE FOLLOWING: _**CRP.542/17**_ 2 ## **V.G.ARUN, J. ----------------------------------------------C.R.P.No. 542 of 2017 ----------------------------------------------Dated this the 5[th] day of November, 2021** ## **O R D E R** The revision petitioner is the decree holder in E.P.No.28 of 2010 in O.S.No.63 of 2001 on the files of the Sub Court, Ottapalam. The suit was filed by the petitioner for recovery of an amount of Rs.2,73,050/- with interest thereon from the 2[nd] respondent. The suit was decreed on 21.7.2006. The 2[nd] respondent having failed to pay the amount due under the decree, the petitioner filed E.P.No.28 of 2010 for realisation of the amount by proceeding against the decree schedule property. Accordingly, the property was brought to sale and was purchased by the 1[st] respondent in the public auction held on 6.10.2010. The 1[st] respondent deposited the purchase value and thereupon, the sale was confirmed in his favour and sale certificate issued. Thereafter, the 1[st] respondent filed E.A.No.150 of 2011 for getting delivery of the property. Accordingly, the execution court _**CRP.542/17**_ 3 deputed an Amin to effect delivery. The Amin was not able to identify the property and the Taluk Surveyor was deputed to assist the Amin in identifying the property. In spite of measuring the entire extent of 16.30 Acres in Sy.No.36/3, the Taluk Surveyor and Amin were not able to identify the property described in the sale certificate. On a report being filed to that effect, the court directed the Amin to identify the property with the help of a private surveyor. Even the private surveyor was not able to identify the property and the Amin again filed a report on 27.07.2012, stating that the property, as described in the sale certificate, does not exist. Immediately, the 1[st] respondent filed an application (E.A.No.484 of 2012) under Order XXI Rule 90 of CPC, for setting aside the sale on the ground of fraud and material irregularity. The fraud alleged is the act of the petitioner in having induced the 1[st] respondent to purchase a non existent property. The execution court allowed the application and set aside the sale. Aggrieved, the petitioner preferred C.M.A.No.141 of 2016 before the Additional District Court, Ottapalam, but without success. Hence, this civil revision petition. _**CRP.542/17**_ 4 2. Sri.Rajesh Sivaramankutty, learned Counsel for the petitioner contended that the application for setting aside the sale filed beyond the period of 60 days prescribed under Article 127 of the Limitation Act ought to have been dismissed. The finding of the courts below that Section 17 of the Limitation Act is the applicable provision, the allegation being that sale is vitiated by fraud, is assailed on the ground that there was no material to support the allegation. On the other hand, Exhibit B series documents produced by the petitioner shows that the property had been purchased by the judgment debtor in a court auction. Being so, the question of fraud does not even arise. The pertinent fact that the property purchased by the 1[st] respondent had been attached before judgment in the suit filed by the petitioner and the attachment continued up to the sale, was omitted to be considered. In any case, merely for the reason that the Amin and Surveyors failed to identify the property, the court could not have held the sale to be vitiated by fraud. It is submitted that, having contested the suit and obtained a valid decree and having got the decree executed, the petitioner cannot _**CRP.542/17**_ 5 be denied the fruits of the decree. 3. Sri.P.Jayaram, learned counsel for the 1[st] respondent submitted that the _bona fides_ of the petitioner is suspect, since no effort was made by him to aid or assist the court in identifying the property. It is contended that the 1[st] respondent was duped into purchasing the property and being a _bona fide_ purchaser, the first respondent's interest ought to have been protected. It is submitted that the entire sale consideration was paid by the 1[st] respondent way back in the year 2010 and therefore, interest of justice demands that the civil revision petition be dismissed. Learned Counsel relied on the decision of this Court in _**Thomas v. Devasy**_ [1998 (2) KLT 1078] to contend that Section 17 of the Limitation Act would apply when fraud is committed by the decree holder. The decisions of the Honourable Supreme Court in _**Ram Chandra Singh v. Savitri Devi and Others**_ [(2003) 8 SCC 319], _**S.P.Chengalvaraya Naidu (Dead) By Lrs. v. Jagannath (Dead) By Lrs and Others**_ [(1994) 1 SCC 1] and _**Indian Bank v. Satyam Fibres (India) Pvt. Ltd.**_ [(1996)5 SCC 550] are pressed into service to contend that an order _**CRP.542/17**_ 6 obtained by non disclosure of relevant material amounts to fraud on the court. 4. It is an undisputed fact that the property of the 2[nd] respondent, having an extent of 62.25 cents comprised in Sy.No.36/3-13.63, in Ottapalam Taluk was attached at the instance of the petitioner and the attachment was in force up to the sale. Exhibits P1 to P5 show that the 2[nd] respondent had purchased the property in a court auction. The property brought to sale and purchased by the 1[st] respondent is a portion of the attached property. The 2[nd] respondent along with his wife had availed a loan from the LIC Housing Finance Ltd by mortgaging the property. The records reveal that LIC Housing Finance Ltd. had filed an interlocutory application (I.A.No.2000 of 2001) in the petitioner's suit, seeking to get the attachment lifted. That application was closed holding that the attachment will not affect the LIC Housing Finance Ltd's charge over the property. In the aforementioned circumstances, the question arising for consideration is whether failure of the officials to identify the property and the non-availability of the property for identification _**CRP.542/17**_ 7 can lead to the conclusion that the petitioner had committed fraud, justifying the invocation of Order XXI Rule 90 of CPC extracted hereunder; ## _“90._ _**Application to set aside sale on ground of irregularity or fraud**_ _(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it._ _(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the court is satisfied that the applicant has su[stained substantial injury by reason of such irregularity or fraud._ _(3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up._ _Explanation: The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.”_ ## It is clear from the provision that a sale can set aside only on the ground of material irregularity or fraud “in publishing or _**CRP.542/17**_ 8 conducting the sale”. Here the allegation is of the court having been defrauded into bringing a non-existent property to sale. 'Fraud' is an act of deliberate deception with the design of taking unfair advantage of another and involves two elements, 'deceit' and 'injury to the person deceived'. In Websters Dictionary, 'fraud in equity' has been defined as an act or omission to act, or concealment by which one person obtains an advantage over another, or which equity or public policy forbids as being prejudicial to another. In Black's legal dictionary, 'fraud' is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another, so that he shall act upon it, to his legal injury. 5. It is the settled legal position that fraud and collusion vitiate even the most solemn proceedings in any civilised system _**CRP.542/17**_ 9 of jurisprudence. At the same time, mere allegation of fraud, without substantial proof in support of the allegation, is of no avail. Here, the materials on record are not sufficient to hold that the petitioner was having knowledge that the property attached at his instance and brought to sale in execution of the decree was not in existence. In the absence of proof regarding such knowledge, the allegation of fraud cannot be sustained, even if the first respondent had purchased the property at the petitioner's instance. This crucial aspect was omitted to be considered by the execution court. 6. Another point canvassed is whether, in the instant case, application for setting aside sale ought to have been filed under Order XXI Rule 90 or Order XXI Rule 91. The later provision enables the person who had purchased the property in a sale conducted in execution of a decree, to apply to the court to set aside the sale on the ground that the judgment debtor had no saleable interest. 7. In my considered opinion, the materials relied on by _**CRP.542/17**_ 10 the courts below are insufficient to hold that the petitioner had committed fraud on the court and had deceived the 1[st] respondent into purchasing the property. For the aforementioned reasons, the civil revision petition is allowed by setting aside the order in E.A.No.484 of 2012 in E.P.No.28 of 2010 in O.S.No.63 of 2001 of the Sub Court, Ottapalam, as affirmed by the judgment in C.M.A.No.141 of 2016 of the Additional District Court, Ottapalam. The execution court shall consider E.A.No.484 of 2012 afresh and pass orders thereon, after affording an opportunity of hearing to the parties. The 2[nd] respondent having remained _ex parte_ throughout, need not be issued with notice. The execution petition being of the year 2010, earnest efforts shall be taken to expedite the proceedings. **Sd/V.G.ARUN, JUDGE** ## _vgs_