High Court of KeralaSingle Judge2023-03-28Original petition dismissed; no interference wi...

Mani P.S v Idukki District Co-operative Bank Ltd

Case / Petition Number:OP(C) No.604 of 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2023-03-28
Court Decision / Holding: Original petition dismissed; the High Court refused to interfere with the district court’s Ext P3 order and Ext P5 sale proceedings, noting that the petition is meritless and that the exemption under Sec.60(1)(c) CPC was not properly raised at the appropriate stage.
Final Disposition: Original petition dismissed; no interference with the lower court's orders.

Parties to the Case

Appellants / Petitioners

Mani P.S

Respondents

IDUKKI District Co-operative Bank Ltd., Nedumbakkandam Branch, Nedumbkandam P.O., Idukki District, PIN 685553

Legal Representation & Advocates

Counsels for Petitioners

• Adv. George Sebastian

Counsels for Respondents

• Adv. Gilbert George Correya

Case Synopsis & Summary

The petitioner, Mani P.S., aggrieved by Ext P3 order and Ext P5 sale proclamation in EA 43/2022 in EP 47/2016 before the Munsiff Court, Kattappana, has filed this original petition challenging the sale of his residential property. The respondent decreeholder initiated execution to realize Rs. 4,10,248 on the basis of an award in AP 1763/2016. The property, measuring 2.83 ares, is claimed by the petitioner to be exempt under Section 60(1)(c) CPC as a mason by profession. The petitioner filed EA 43/2022 under Section 47 CPC to resist attachment and sale of his house; Ext P2 is the objection. The court below dismissed Ext P1 and proceeded with sale via Ext P5. The petitioner also raised an objection to the draft sale proclamation (Ext P4), which the court did not properly consider. The court in Ext P3 held no illegality and proceeded to sale; the petitioner’s plea that only a portion of the property should be sold was rejected under Rule 90(3) of Order 21 CPC. The High Court, exercising supervisory jurisdiction under Article 227, confirms that the petition is meritless, emphasizes that exemption under Sec.60 must be raised at the first opportunity (citing Bhaskar Traders v. Kunjiraman), and declines to interfere with the district court’s orders. Consequently, the original petition is dismissed.

Provisions of Law Cited

Section 60(1)(c) CPCSection 47 CPCOrder 21 Rule 90(3) CPCArticle 227 Constitution of India

Legal Doctrines & Maxims

Res judicata
Exemption under Section 60(1)(c) CPC must be raised at the first opportunity
Supervisory jurisdiction of the High Court under Article 227 (not to substitute orders)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that his house is exempt from attachment and sale under Section 60(1)(c) CPC as he is a mason by profession. He had moved EA 43/2022 under Section 47 CPC to resist sale of his residential property and submitted Ext P4 objection to the draft sale proclamation; he submits that Ext P3 order and Ext P5 sale are illegal and that the exemption should have been entertained at an earlier stage. He relies on Bhaskar Traders v. Kunjiraman to assert that exemptions must be raised at the first opportunity, else risk bar by res judicata; he argues that only partial sale could be permissible and that the draft sale proclamation and subsequent sale breached due process. Finally, he contends that the petition warrants interference under Article 227 to correct grave injustice.

Contentions of Respondents

The respondent-decreeholder argues that the exemption under Section 60(1)(c) was not properly pleaded or pursued at the proper stage and that the court rightly rejected Ext P1 and proceeded with sale under Ext P5. It is urged that raising the exemption at the time of sale is barred by res judicata and by Rule 90(3) of Order 21 CPC; the objections to the draft sale proclamation were not tenable after sale considerations, and the court’s order Ext P3 is proper and lawful.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Bhaskar Traders v. Kunjiraman	1987 KHC 424	Positive	Cited to support the proposition that exemption under Section 60(1)(c) must be raised at the first opportunity; raising it late can bar relief under res judicata principles.

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Extracted Judgment Text

Exact text extracted from official judgment records.

1 OP(C) No.604 of 2023 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 28[TH] DAY OF MARCH 2023 / 7TH CHAITHRA, 1945 ``` ## **`OP(C) NO. 604 OF 2023`** ``` AGAINST THE ORDER/JUDGMENT IN EA 43/2022 IN EP NO.47/2016 OF MUNSIFF COURT,KATTAPPANA ``` ## **`PETITIONER/S:`** ``` MANI P.S AGED 47 YEARS, S/O.SASIDHARAN PUTHENVEETTIL HOUSE, NEDUMKANDOM P.O., PARATHODU VILLAGE, IDUKKI DISTRICT, PIN - 685553 BY ADV GEORGE SEBASTIAN ``` ## **`RESPONDENT/S:`** ``` IDUKKI DISTRICT CO-OPERATIVE BANK LTD., NEDUMKANDAM BRANCH, NEDUMKANDAM P.O., IDUKKI DISTRICT, PIN - 685553 ``` ``` BY ADV GILBERT GEORGE CORREYA ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C) No.604 of 2023 ## **C.S DIAS,J.** **--------------------------OP(C) No.604 of 2023** **----------------------------Dated this the 28[th] day of March, 2023.** ## **JUDGMENT** Aggrieved by Ext P3 order and Ext P5 sale proclamation passed in EA No.43/2022 in EP No.47/2016 by the Court of the Munsiff, Kattappana, the judgment-debtor in the above execution petition has filed the original petition. The respondent is the decreeholder. 2. The short relevant facts leading to Ext P3 order are: 2.(i). The respondent has filed EP No.47/2016 to execute the award passed in Adalath Petition (AP) 1763/2016 to realise an amount of Rs.4,10,248/-. 3 OP(C) No.604 of 2023 2.(ii). The respondent has proceeded against the residential property of the petitioner which has an extent of 2.83 Ares. 2.(iii). The petitioner is a mason by profession and, therefore, is entitled to the exemption under Sec.60 (1) (c) of the Code of Civil Procedure ( in short, ‘Code’). 2.(iv). As the petitioner’s house is not liable to be attached and sold, he filed EA No.43/2022 (Ext P1), under Sec.47 of the Code, resisting the proceedings against his house. The application was opposed by the respondent through Ext P2 objection. 2.(v). The court below, without appreciating the application in its proper perspective, by the impugned Ext P3 order has dismissed Ext P1 application. 4 OP(C) No.604 of 2023 2.(vi). Before passing Ext P3 order, the petitioner had filed his objection to the draft sale proclamation, which was also not considered. Instead, the court below has proclaimed the property for sale by Ext P5 proceedings. 2.(vii). Exts P3 order and P5 proceedings are illegal, improper and erroneous. Hence, the original petition. 3. Heard; Sri.George Sebastian, the learned counsel appearing for the petitioner and Sri.Gilbert George Correya, the learned counsel appearing for the respondent. 4. The point is, whether there is any illegality in Ext P3 order. 5. The petitioner is the judgment-debtor in the execution petition. It is not discernible from the 5 OP(C) No.604 of 2023 materials on record, whether the petitioner has filed any objection to the execution petition. However, the court below has proceeded against house and property of the petitioner. 6. It is the petitioner’s case that, despite filing Ext P4 objection to the draft sale proclamation, the court below has proclaimed the sale of the property through Ext P5 proceedings. 7. Admittedly, the petitioner has not challenged the proclamation proceedings at the appropriate stage. It is after the court below proceeded with the sale, the petitioner has filed Ext P1 application seeking exemption under Sec.60 (1) (c) of the Code on the ground that he is a labourer and his house has to be excluded from the sale. 6 OP(C) No.604 of 2023 8. In **Bhaskar Traders vs. Kunjiraman** [1987 KHC 424] this Court has held that a person claiming an exemption under Sec.60 of the Code has to raise it at the first opportunity and not at the fag end of proceeding when the property is put up for sale, and if not, the application will be hit by the principles of res judicata. 9. By not raising the objection at the appropriate stage, it is too late for the petitioner to now contend, that too under Sec.47 of the Code, at the stage of sale, that he is entitled to the exemption under Sec.60 (1) (c). 10. Furthermore, the contention of the petitioner that only a portion of the property need be sold is hit by sub-rule (3) of Rule 90 of Order 21 of the Code. 11. On an overall appreciation of the pleadings and materials on record and the law on the point, it is only 7 OP(C) No.604 of 2023 to be endorsed that the court below was justified in rejecting Ext P1 application by Ext P3 order and proceeding with the sale of the property. There is no error in Ext P3 order and Ext P5 proceedings warranting interference by this Court under Article 227 of the Constitution of India. 12. It is trite; the exercise of the power of superintendence of this Court under Article 227 of the Constitution of India is to keep the courts of the District Judicature within their bounds of authority and to see that they do the duty as expected of them. The exercise of this power and interfering with the orders of the courts is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a 8 OP(C) No.604 of 2023 grave injustice remains uncorrected. It is also well-nigh settled that while acting under this Article, the High Court is not acting as an appellate court to substitute the orders of the courts of the District Judicature. In the above conspectus, I hold that the original petition is merit-less and is consequentially dismissed. SD/- sks/28.3.2023 **C.S.DIAS, JUDGE** 9 OP(C) No.604 of 2023 ## **`APPENDIX OF OP(C) 604/2023`** ``` PETITIONER EXHIBITS Exhibit P1A TRUE COPY OF EA.43/2022 IN EP. 47/2016 OF THE MUNSIFF COURT, KATTAPPANA DATED 29.03.2022 ``` ``` Exhibit P2A TRUE COPY OF THE OBJECTION IN EA 43/2022 IN EP 47/2016 OF MUNSIFF COURT KATTAPANA DATED 13.06.2022 FILED BY THE RESPONDENT ``` ``` Exhibit P3A TRUE COPY OF THE ORDER DATED 19.12.2022 IN E.A. 43/2022 IN EP. NO. 47/2016 OF THE MUNSIFF COURT, KTTAPPANA ``` ``` Exhibit P4A TRUE COPY OF THE OBJECTION DATED 25.03.2022 SUBMITTED BY THE PETITIONER TO THE DRAFT SALE PROCLAMATION IN EP. 47/2016 OF THE MUNSIFF COURT, KATTAPPANA ``` ``` Exhibit P5A TRUE COPY OF THE SALE PROCLAMATION DATED 04.01.2023 IN EP. 47/2016 IN AP. 1763/2016 OF THE MUNSIFF COURT, KATTAPPANA ``` ``` Exhibit P6A TRUE COPY OF THE RELEVANT EXTRACT OF THE PROCEEDINGS IN EP 47/2016 IN AP 1763/2016 OF MUNSIFF COURT KATTAPPANA ```