Lalitha Kumari and Asha B. Nair v Muraleedharan Nair and Ajith B. Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 1[ST] DAY OF AUGUST 2023 / 10TH SRAVANA, 1945 F.A.O.NO. 25 OF 2020** **AGAINST THE ORDER DATED 05.11.2019 IN E.A.NO.29 OF 2019 IN E.P.NO.1 OF 2017 IN O.S.NO.237 OF 2010 OF THE SUB** ## **COURT, NEDUMANGAD** **APPELLANTS/PETITIONERS 1 & 3/ADDL.JUDGMENT DEBTORS 2 &4/ADDL. DEFENDANTS 2 & 4:** - **1 LALITHA KUMARI, AGED 63 YEARS,W/O.LATE BALAKRISHNAN NAIR, SARADALAYAM, CHENCHERY, MANNANTHALA, THIRUVANANTHAPURAM DISTRICT, PIN CODE-695 043.** - **2 ASHA B.NAIR, AGED 29 YEARS, D/O.LATE BALAKRISHNAN NAIR, SARADALAYAM, CHENCHERY, MANNANTHALA, THIRUVANANTHAPURAM DISTRICT, PIN CODE-695 043.** **BY ADV D.GANESH KUMAR** **RESPONDENTS/COUNTER PETITIONERS & 2ND PETITIONER/DECREE HOLDER & ADDL. JUDGMENT DEBTOR NO.3/PLAINTIFF & ADDL.DEFENDANT NO.3:** **1 MURALEEDHARAN NAIR, NOW AGED ABOUT 70 YEARS, S/O.VASUDEVAN PILLAI, RESIDING AT KAMUKARAKONAM VEEDU, KARAKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN CODE-695 564.** 2 F.A.O.No.25 of 2020 **2 AJITH B.NAIR, AGED 31 YEARS, S/O.LATE BALAKRISHNAN NAIR, SARADALAYAM, CHENCHERY, MANNANTHALA, THIRUVANANTHAPURAM DISTRICT, PIN CODE-695 043.** **R1 BY ADV SRI.M.ABDUL RASHEED** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 01.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.No.25 of 2020 ## **JUDGMENT** ## P.G. Ajithkumar, J. This is an appeal filed under Order XLIII, Rule 1(j) of the Code of Civil Procedure, 1908. 2. The appellants are the judgment debtors 2 and 4 in O.S.No.236 of 2010. In execution of the decree in that suit, the 1[st] respondent brought on sale property owned by the judgment debtors. The property was sold in public auction on 23.01.2019. The 1[st] respondent bid the property for Rs.2,70,100/-. The appellants filed E.A.No.29 of 2019 in E.P.No.1 of 2017 under Order XXI, Rule 90 of the Code seeking to set aside the sale. The Sub Court, Nedumangad dismissed the said application as per the order dated 05.11.2019. Aggrieved by the said order, this appeal was filed. 3. This appeal was admitted on 13.02.2020. As per the order in I.A.No.1 of 2020, all further proceedings in E.P.No.1 of 2017 in O.S.No.237 of 2010 were stayed for a period of one week. The order of stay was extended from time to time. 4 F.A.O.No.25 of 2020 4. On 25.02.2020, this matter was referred for mediation to the Mediation Centre, High Court of Kerala and the parties were directed to appear at 10.15 a.m. on 02.03.2020. The mediation failed. 5. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the 1[st] respondent. 6. The suit was filed by the 1[st] respondent seeking a decree of realisation of Rs.1,42,000/- and interest from the original defendant Sri.Balakrishnan Nair. He died during the pendency of the suit and his legal representatives were impleaded as additional defendants 2 to 4. The suit was decreed on 06.08.2012. In the execution petition, 4.5 cents of land comprised in old survey No.2492/5 (re-survey No.233/78) of Vattappara Village originally belonged to Sri.Balakrishnan Nair was brought on sale. The auction was held on 23.01.2019 and the 1[st] respondent bid the property for a sale consideration of Rs.2,70,100/-. Thereafter, the appellant filed E.A.No.29 of 2019 seeking to set aside the sale. 5 F.A.O.No.25 of 2020 7. The appellants contended that the sale held on 23.01.2019 was vitiated for more than one reason. Since the joint property was brought on sale, there occurred procedural irregularity. Decree debt was Rs.2,45,212/- and for realisation of that amount, 4.5 cents of land should not have been sold. The property worths more than Rs.3 lakhs per cent. Since such a valuable property was sold for realisation of a meagre sum, the sale is vitiated. No notice as provided under Rule 66(2) of the Code was given to the appellants. Without drawing up a proclamation, sale was conducted. The appellants by contending that on account of such illegal sale, they sustained substantial injury, sought to set aside the sale. 8. The 1[st] respondent filed an objection refuting the allegations regarding regularity and correctness of the proclamation and the sale of the property. He has contended that the appellants did not choose to file any objection despite receiving notice under Rule 66(2) of the Code and also the copy of the draft proclamation schedule. He would contend that the sale was conducted after complying with all the 6 F.A.O.No.25 of 2020 procedural requirements and there is absolutely no reason to set aside the sale. The claims of the appellants that the property would fetch more than Rs.3 lakhs per cent is incorrect. The property is situated at an interior place and it was sold for a commensurate price. 9. The execution Court did not go in detail to the contentions set forth by the appellants. But it is observed that all the procedural formalities were complied with before conducting the auction sale. The Execution Court on holding that the appellants did not place on record any objection at the time of settlement of proclamation as are raised now, and therefore, they are precluded from seeking an order setting aside the sale on the grounds of irregularity and fraud. 10. The learned counsel appearing for the appellants would submit that the estimated price mentioned in the proclamation schedule is much less compared to the actual value of the land. Decree debt being Rs.2,45,212/- alone, the entire 4.5 cents should not have been put on sale. Sale of a portion of the said property was sufficient to satisfy the 7 ## F.A.O.No.25 of 2020 decree. For that reason alone, in view of the learned counsel, the sale is liable to be set aside. 11. From the proclamation schedule, it is seen that the Execution Court has estimated the value of the property as Rs.2,70,000/- and published for sale. At that time, no objection regarding the valuation was raised by the appellant. Even when they filed E.A.No.29 of 2019, they did not produce any material to show that the property in question is worth Rs.3 lakhs per cent as they claimed. The appellants did not choose to file any evidence in support of their contentions in E.A.No.29 of 2019. From the records it is not able to find that there occurred any procedural irregularity in publishing the proclamation and conducting the sale. 12. It is true that Rule 64, Order XXI of the Code insists on selling only such part of the property as is required to satisfy the decree. The Apex Court in **Desh Bandhu** ## **Guptha v. N.L.Anand & Rajinder Singh [(1994) 1 SCC** **131]** held as follows: “In all execution proceedings, the Court has to first decide whether it is necessary to bring the entire attached 8 F.A.O.No.25 of 2020 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 property should be sold. This, in our opinion, is not just a discretion, but an obligation imposed on the Court.” In the above decision, the Apex Court held unequivocally that any sale in violation of the said insistence of law would be illegal. However, in this case, there is no material to show that a part of the 4.5 cents of land, which was sold in auction, was sufficient to satisfy the decree. The contention that coownership of the appellants and the 2[nd] respondent in respect of the said property continues and that also is a reason to set aside sale. They are the judgment debtors obliged to satisfy the decree. So there is nothing wrong in selling their coownership property. 13. In such circumstances, we are of the view that none of the contentions raised by the appellants can be 9 F.A.O.No.25 of 2020 accepted. The Execution Court did not go wrong in taking the view that the sale was not liable to be set aside. Therefore, this appeal can only fail. The appeal is dismissed accordingly. 14. The learned counsel appearing for the 1[st] respondent would submit that on dismissing E.A.No.29 of 2019, the Execution Court as per the proceedings dated 05.11.2019 had confirmed the sale and thereupon the 1[st] respondent produced stamp paper for endorsing the sale certificate. As a result of the stay ordered by this Court, the stamp paper would have become stale now. It is trite that by the act of court the right of no one shall be prejudiced. Therefore, we are of the view that there shall be direction to the Execution Court to take appropriate steps to ensure that either the said stamp paper is used to issue the sale certificate or refund the value of it as admissible under the law. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr