Mandakini Sreekumari v. Karthi Mercy, Rajasekharan Nair, Loorthammai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **FRIDAY, THE 3RD DAY OF AUGUST 2012/12TH SRAVANA 1934** ## **WP(C).No. 6300 of 2010 (O)** **-------------------------OS.724/2003 of II ADDITIONAL MUNSIFF COURT,NEYYATTINKARA** ## **PETITIONER(S):** - **-------------** **MANDAKINI SREEKUMARI, CHATHAYAM,KUZHAKKAD,MEKKOLLA DESOM, KOLLAYIL VILLAGE.** **BY ADV. SRI.R.GOPAN** ## **RESPONDENT(S):** - **--------------** **1. KARTHI MERCY, KADUKARA PUTHEN VEEDU, KEEZHAMMAKAM DESOM, CHENKAL VILLAGE.** **2. RAJASEKHARAN NAIR, SWATHI, PAZHAYA KADA,THIRUPURAM VILLAGE, NEYYATTINKARA TALUK.** **3. LOORTHAMMAI, D/O. KAMALAMMA, KARIATHAM,PAZHINJI VEEDU, KEEZHAMANGAM, CHENKAL P.O.** **R1 & R2 BY ADVS. SRI.ARUN KRISHNAN SRI.T.SAJEEV R3 BY ADV. SRI.G.S.REGHUNATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **LSN** **WP(C).No. 6300 of 2010 (O)** **2** **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT P1: COPY OF THE PLAINT O.S.NO. 724/2003 FILED BY THE PETITIONER BEFORE THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DATED 10.09.2003. EXT P2: COPY OF THE I.A.NO.5997/2003 IN O.S.NO.724/2003 FILED BY THE PETITIONER BEFORE THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DATED 10.10.2003. EXT P3: COPY OF THE ATTACHMENT REPORT FILED BY THE COURT AMIN IN O.S. NO. 724/2003. EXT P4: COPY OF THE JUDGMENT DATED 20.12.2003 IN O.S.NO. 724/2003 FILED BY THE PETITIONER BEFORE THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA. EXT P5: COPY OF THE E.P. NO.232/2005 IN O.S.NO. 724/2003 FILED BY THE PETITIONER BEFORE THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DATED 10.09.2003. EXT P6: COPY OF THE DRAFT SALE PROCLAMATION FILED BY THE PETITIONER DATED 17.01.2007 IN O.S.NO. 724/2003 OF THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA. EXT P7: COPY OF THE VALUATION CERTIFICATE ISSUED BY THE TAHSILDAR, NEYYATTINKARA DATED 20.10.2006. EXT P8: COPY OF THE ENCUMBRANCE CERTIFICATE DATED 20.06.2006 ISSUED BY THE SUB REGISTRY OFFICE, AMARAVILA. EXT P9: COPY OF THE SALE SANNATH EXECUTED BY THE 2ND ADDITIONAL MUNSIFF COURT, NEYYATTINKARA DATED 03.11.2007. EXT P10: COPY OF THE TAX RECEIPT DATED 17.04.2008 ISSUED BY THE VILLAGE OFFICER, CHENKAL. EXT P11: COPY OF THE E.P.NO.317/2007 IN O.S. NO. 724/2003 FILED BY THE PETITIONER DATED 03.12.2007. EXT P12: COPY OF THE AMIN REPORT DATED 28.02.2008 IN E.P. NO. 317/2007 IN O.S. NO. 724/2003. EXT P13: COPY OF THE E.P.NO.317/2007 IN O.S. NO. 724/2003 FILED BY THE PETITIONER DATED 03.12.2007. EXT P14: COPY OF THE ORDER DATED 03.04.2006 IN E.A. NO.356/2005 IN O.S. NO.137/2003 OF THE SUB COURT, NEYYATTINKARA. EXT P15: COPY OF THE SALE SANNATH EXECUTED BY THE SUB COURT, NEYYATTINKARA.** **WP(C).No. 6300 of 2010 (O)** **3** **EXT P16: COPY OF THE E.A.NO.295/2008 IN O.S.NO.724/2003 DATED 26.03.2008 OF THE 2ND ADDITIONAL MUNSIFF COURT.** - **EXT P17: COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.A. NO.295/2008 IN O.S. NO.724/2003 DATED 11.08.2008.** **EXT P18: COPY OF THE E.A.NO.394/2008 IN O.S. NO.724/2003 OF THE 2ND ADDITIONAL MUNSIFF COURT , NEYYATTINKARA DATED 27.05.2008.** - **EXT P19: COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.A. NO.394/2008 IN O.S. NO.724/2003 OF THE 2ND ADDITIONAL MUNSIFF COURT, NEYYATTINKARA DATED 22.08.2008.** - **EXT P20: COPY OF THE E.A.NO. 423/2008 IN O.S.NO.724/2003 OF THE 2ND ADDITIONAL MUNSIFF COURT, NEYYATTINKARA, DATED 06.06.2008.** - **EXT P21: COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.A.NO.423/2008 IN O.S.NO.724/2003 OF THE 2ND ADDITIONAL MUNSIFF COURT, NEYYATTINKARA DATED 22.08.2008.** **EXT P22: COPY OF THE COMMON ORDER DATED 21.12.2009 IN E.A.NOS.295/2008,394/2008 & 423/2008 IN E.P.NO.317/07 IN O.S.NO.724/2003 OF THE 2ND ADDITIONAL MUNSIFF COURT, NEYYATTINKARA.** - **EXT P23: COPY OF THE E.A.NO.77/52009 IN E.P.NO.85/2004 IN O.S.NO.137/2003 OF THE SUB COURT,NEYYATTINKARA DATED 16.03.2009.** - **EXT P24: COPY OF THE OBJECTION FILED BY THE 3RD RESPONDENT IN E.A.NO.77/2009 IN E.P.NO.85/2004 IN O.S. NO.137/2003 OF THE SUB COURT, NEYYATTINKARA DATED 10.06.2009.** ## **RESPONDENT'S EXHIBITS:** - **EXT R3(a): COPY OF THE E.P.NO.59/2005 IN O.S. NO.155 ON 15.06.2005.** - **EXT R3(b): COPY OF THE E.P.NO.85/2004 IN O.S.NO.137/2003.** - **EXT R3(c): COPY OF THE E.A.NO.423 OF 2008 FOR SETTING ASIDE THE SALE DATED 17.02.2007 UNDER SECTION 47 C.P.C.** - **EXT R3(d): COPY OF THE SALE CERTIFICATE OBTAINED BY THE 3RD RESPONDENT DATED 06.10.2008.** **EXT R3(e): COPY OF THE SALE CERTIFICATE OBTAINED BY 1ST RESPONDENT DATED 06.10.2008.** ## **//TRUE COPY//** **P.A. TO JUDGE** **LSN** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 6300 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3[rd] day of August, 2012. ## **JUDGMENT** The petitioner before this court challenges Ext.P22 order dated 21.12.2009 whereby the court below has held that the sale of the property by the said court on the execution petition filed by the petitioner herein is vitiated by fraud and hence directed to recall the relevant sale certificate issued to the petitioner. 2. The facts absolutely necessary for the disposal of this writ petition are as follows: One Sasikala owed money to different persons including the petitioner herein. Petitioner instituted O.S.724 of 2003 before the Munsiff's Court for money due from the said Sasikala. He had moved I.A.5997 of 2003 seeking attachment of the property belonging to the defendant in the suit which was allowed and Ext.P3 report was filed by the Amin. Respondent 1 to 3 before this court WPC. 6300/2010. 2 were also to receive the amount from the said Sasikala and they had filed O.S. Nos. 137 of 2003, 103 of 2003 and 155 of 2003 before the Sub Court, Neyyattinkara while the suit filed by the petitioner was pending before the Munsiff's Court, Neyyattinkara. It appears that a decree was passed in all the suits. From the records, it is seen that the petitioner approached the Sub Court, Neyyattinkara and sought rateable distribution of the assets of the judgment debtor and an order was passed accordingly. However, the petitioner, concealing the said fact, moved for sale of the property before the Munsiff's court, Neyyattinkara and after the issuance of the sale proclamation, which was approved by the court below, sale was held for a sum of Rs.1,50,100/-. After appropriating the amount due to the petitioner, the balance was deposited. In the meanwhile, the Sub Court which had passed decrees in the other suits, in which an order of rateable distribution was also obtained by the petitioner herein, proceeded with the sale of the WPC. 6300/2010. 3 very same property in execution of the decree in O.S.137 of 2003 as per the execution petition filed by the decree holder in that suit. Petitioner herein after bringing the property to sale without revealing the factum of an order of rateable distribution obtained sale certificate and he also claims to have paid tax in respect of the property. 3. The decree holder in O.S.137 of 2003 who brought the property to sale in E.P.85 of 2004 later found that concealing the factum of the order of ratable distribution, the petitioner herein has obtained an order for sale of the property from the Munsiff's Court, Neyyattinkara practicing fraud on the said court. That necessitated the filing of E.A.Nos.295 of 2008, 394 of 2008, 423 of 2008 in E.P.317 of 2007 in O.S.724 of 2003 before the Munsiff's Court, Neyyattinkara by the decree holders in O.S. 137 of 2003, 103 of 2003 and 155 of 2003 seeking to have the sale conducted by the Munsiff's Court set aside in view of the 4 WPC. 6300/2010. order of rateable distribution passed by the Sub Court, Neyyattinkara on the motion made by the petitioner herein. 4. Petitioner resisted the above petitions on several grounds. It was pointed out that in the draft proclamation and the encumbrance certificate produced by him had shown the pendency of the suits before the Sub Court and also the liability of the judgment debtor to various other creditors and that the sale was held in accordance with law. 5. The court below on the basis of the materials before it found that the petitioner herein had obtained order of sale of the property from the Munsiff's court by concealing the factum of the order of rateable distribution obtained on the motion made by the petitioner himself and that amounted to fraud. Accordingly the impugned order was passed. 6. Adv.R.Gopan, counsel appearing for the petitioner before this court pointed out that the court below 5 WPC. 6300/2010. was not justified in setting aside the sale and recalling the sale certificate especially when the draft proclamation showed that other suits were pending for money by different persons against the same judgment debtor. It was pointed out that no fact had been concealed from the notice of the court below and the sale was conducted in accordance with law. It is also contended that once the sale is conducted, the judgment debtor will lose her title over the property and the subsequent sale conducted by the Sub Court is without jurisdiction since the judgment debtor, at that point of time had no title to the suit property. Relying on the decision in C.R.P. 2064 of of 1989 it is pointed out that the assets under Section 73 C.P.C. means money held by the court and as long as money was not before the Sub court at the time when rateable distribution was sought for, order of rateable distribution has no value. It was also pointed out by the learned counsel that the attachment of property by the petitioner was prior in point of time and WPC. 6300/2010. 6 thus viewed from any angle the sale is valid. 7. Sri.G.S. Reghunath, learned counsel appearing for the respondents pointed out that concealing the factum that an order of rateable distribution has been passed by the Sub court on a motion made by the petitioner himself, sale was conducted by the Munsiff's Court on the motion made by the petitioner. Relying on the decision reported in **Kotak & Co. v. State of U.P. (1987 K.L.J. 136)** it was contended that the order of rateable distribution has the characteristics of a decree and it was concealing the factum of such an order that the sale order was obtained by the petitioner. The court was therefore perfectly justified in coming to the conclusion that fraud has been played on the court and therefore the court was justified in setting aside the sale and in recalling the sale certificate. It was also contended that no grounds are made out to interfere with the order of the court below. WPC. 6300/2010. 7 8. After having heard counsel on both sides and after having perused the records, this court finds little substance in the contention raised before this court by the petitioner. 9. It is an admitted fact that the petitioner's suit was pending before the Munsiff's court, whereas the suits filed by the respondents were pending before the Sub Court, Neyyattinkara. It was the petitioner who had approached the Sub Court vide E.A.356 of 2005 in O.S.137 of 2003 and obtained rateable distribution order in his favour. Admittedly the order of rateable distribution was passed before the proceedings for sale was taken by the petitioner in O.S.724 of 2003. At the time of taking steps for sale of the property in pursuance to the decree in O.S.724 of 2003, he was fully aware of the rateable distribution order obtained by him by way of E.A.356 of 2005 in O.S.137 of 2003. WPC. 6300/2010. 8 10. It is true that in the sale proclamation, he has mentioned about the other suits namely, the three suits already made mention of. But it is not stated therein that a decree has been passed and a rateable distribution order has been obtained at his instance from the Sub Court. 11. There is nothing to indicate that the petitioner had brought to the notice of the Munsiff's Court, Neyyattinkara when he moved for sale of the property about the existence of the order of rateable distribution passed by the Sub Court, Neyyattinkara. 12. When there is an order of rateable distribution passed by the Sub Court under Section 73 C.P.C., the petitioner was bound in law to disclose that fact, if he wanted to proceed with the sale of the property. It is difficult to understand as to how the petitioner had obtained an order of sale from the Munsiff's court when the decrees were passed by the Sub Court in the suits filed by the respondents herein against the judgment debtor against WPC. 6300/2010. 9 whom the petitioner also had a decree in his favour. It is significant to notice that the property was brought to sale and it was purchased by the petitioner himself. That further shows the malafides in bringing the property to sale concealing the order of rateable distribution. 13. It is clear that the order of sale in the consequent proceedings thereon was obtained by the petitioner in execution of the decree in O.S.724 of 2003 by concealing the factum of the order of rateable distribution passed by the Sub Court, Neyyattinkara which order had been passed at the instance of the petitioner himself. There cannot be any manner of doubt that the order of sale in execution of the decree in O.S. 724 of 2003 was obtained by playing fraud on Munsiff's Court. The court has adverted to the various aspects and has found relying on the decisions reported in **S.P.Chengalvaraya Naidu v. Jagannath** (AIR 1994 SC 853), **Budhia Swain v. Gopinath Deb** (AIR 1999 SC 2089) and **United India Insurance Co. Ltd. v.** WPC. 6300/2010. 10 **Rajendra Singh** (2000(3) K.L.T. SN 10 Case No.11) that fraud has been played on the court. Fraud vitiates every act and the was set aside and thereafter the sale certificate has been recalled. 14. The contention based on the decision reported in C.R.P. 2064 of 1989 that the word asset means the money held by the court has no merit in the facts and circumstances of the case. As rightly pointed out by the learned counsel for the contesting respondents that going by the decision reported in **Kotak & Co.'s case** (supra), an order of rateable distribution has the characteristics of a decree and if that be so, order for sale of the property pursuant to the decree in O.S.724 of 2003 of the Munsiff's Court, Cherthala was obtained by concealing such a decree and that amounts to fraud. 15. It was then pointed out by the learned counsel for the petitioner that the petitioner had filed objections to the delivery petition filed by the decree holder 11 WPC. 6300/2010. for sale of the property in O.S.137 of 2003 and that is still pending consideration. It was also pointed out by the learned counsel for the petitioner that the property is worth much more than for what it has sold for in execution of the decree in O.S.137 of 2003 and infact according to learned counsel, it would have been sufficient to sell a portion of the property to meet the decree debt. 16. All these matters are to be raised before the Sub Court, Neyyattinkara which conducted the sale pursuant to the sale order passed by the court in execution of the decree in O.S.137 of 2003. Neither the order of sale nor the order of confirming the sale nor the subsequent order delivering the property by Sub Court, Neyyattinkara are challenged before this court and it will not be appropriate for this court to deal with the same in the absence of challenge to those orders. 17. On going through the records, this court feels that the court below has exercised its duty correctly and no WPC. 6300/2010. 12 grounds are made out to interfere with the impugned order. However, it is made clear that neither the order of the court below nor the dismissal of this writ petition will stand in the way of the petitioner agitating his claim regarding the sale of the property in execution of the decree by Sub Court, Neyyattinkara in accordance with law. This writ petition is accordingly dismissed. There will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.