N.J.Kunjachan v. Venugopalan and A.K.Balachandran

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 17TH DAY OF FEBRUARY 2017/28TH MAGHA, 1938 ## OP(C).No. 1529 of 2014 (O) AGAINST THE JUDGMENT IN CMA .NO.12/2013 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE, CHERTHALA DATED 26-03-2014 ## PETITIONER: N.J.KUNJACHAN, S/O.JOSEPH, RESIDING AT MANGALATHUKARI HOUSE, VARANAD P.O., CHERTHALA, ALAPPUZHA DISTRICT, PIN-688543. BY ADVS.SRI.K.S.SAJEEV KUMAR SRI.LAJI SAM ZACHARIAH ## RESPONDENTS: 1. VENUGOPALAN, AGED 62 YEARS, S/O.NARAYANAN, VAZHACHIRA HOUSE, CHERTHALA SOUTH MURI, CHERTHALA SOUTH VILLAGE, CHERTHALA TALUK, PIN-688524. 2. A.K.BALACHANDRAN, AGED ABOUT 60 YEARS, S/O.KRISHNAKURUP, DEVAMRITAM, KALAVOOR P.O., ALAPPUZHA, PIN-688522. - R1 BY ADV. DR.V.N.SANKARJEE R1 BY ADV. SRI.S.SIDHARDHAN R1 BY ADV. SRI.V.N.MADHUSUDANAN R1 BY ADV. SMT.C.K.LEKHAMMA R1 BY ADV. SMT.R.UDAYA JYOTHI R1 BY ADV. SRI.M.M.VINOD R1 BY ADV. SRI.PRATHAP. S.R.K. R1 BY ADV. SMT.M.SUSEELA R1 BY ADV. SMT.MARY JOHN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## OP(C).No. 1529 of 2014 (O) ## APPENDIX ## PETITIONER'S EXHIBITS |EXT.P1:|TRUE COPY OF THE PETITION, E.A.NO.499/2011 DATED 6.12.2011 FILED| |---|---| ||BEFORE THE MUNSIFF'S COURT, CHERTHALA.| |EXT.P2:|TRUE COPY OF THE OBJECTION DATED 02.02.2012 FILED BY THE| ||PETITIONER TO EXHIBIT P1 PETITION BEFORE THE MUNSIFF'S COURT,| ||CHERTHALA.| |EXT.P3:|TRUE COPY OF THE OBJECTION DATED 02.02.2012 FILED BY THE 2ND| ||RESPONDENT TO EXHIBIT P1 PETITION BEFORE THE MUNSIFF'S| ||COURT, CHERTHALA.| |EXT.P4:|TRUE COPY OF THE COMMISSIONER'S REPORT TOGETHER WITH| ||SKETCH.| |EXT.P5:|TRUE COPY OF THE ORDER DATED 13.3.2013 IN E.A.NO.499/2011 IN| ||E.P.NO.122/2009 IN O.S.NO.513/2006 BEFORE THE MUNSIFF'S COURT,| ||CHERTHALA.| |EXT.P6:|TRUE COPY OF THE JUDGMENT DATED 26.3.2014 IN CMA NO.12/2013| ||ON THE FILE OF THE SUBORDINATE JUDGES COURT, CHERTHALA.| |EXT.P7:|TRUE COPY OF THE SALE CERTIFICATE DATED 24.5.2013 ISSUED BY| ||THE MUNSIFF'S COURT, CHERTHALA.| |EXT.P8:|TRUE COPY OF THE TAX RECEIPT DATED 11.02.2014 OF CHERTHALA| ||NORTH VILLAGE.| ## RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ **“C.R.”** ## **P.Somarajan, J.** ## **-----------------------------------------------------O.P.(C) No.1529 of 2014 (O) -----------------------------------------------------Dated this the 17[th] day of February, 2017** ## **JUDGMENT** Challenging the judgment dated 26[th] March, 2014 in C.M.A. No.12 of 2013 on the file of the Court of the Subordinate Judge, Cherthala, the petitioner/2[nd] decree holder came up under Article 227 of the Constitution of India. The said judgment was by the first appellate court, against the order dated 13.3.2013 in E.A.No.499 of 2011 in E.P.No.122 of 2009 in O.S.No.513 of 2006 (Ext.P5). The said application in E.A.No.449 of 2011 was filed by the judgment debtor under Order XXI Rule 90 of CPC to set aside the sale conducted on 10.11.2011. The main allegation set forth is that the upset price shown in the proclamation schedule is not reflecting the actual value of the property as the property was having a value of more than ₹25 lakhs per cent and that what was sold is only half a cent and it would fetch an amount of ₹12,50,000/-, but it was sold for an amount of ₹1,05,500/-. The second respondent who purchased the property in court auction contested the application disputing the claim of the judgment debtor. The trial court, on ## **O.P.(C) No.1529 of 2014 (O)** :: 2 :: consideration of Ext.C1(a) and after hearing both the parties, dismissed the application by its order dated 13.3.2013, against which C.M.A.No.12 of 2013 was filed before the Sub Court, Cherthala. By Ext.P6 order, the Sub Court, Cherthala set aside the sale conducted in execution and allowed the application. Aggrieved by the said order, the auction purchaser came up with this original petition. 2. Heard Sri.K.S.Sajeev Kumar, the learned counsel appearing for the petitioner, and Dr.V.N. Sankarjee, learned counsel appearing for the respondent. 3. Going by the order passed by the first appellate court in C.M.A.No.12 of 2013, it is clear that the first appellate court had taken into consideration the commercial importance of the property and nonentry of valuation of property made by the judgment debtor in the proclamation and found that there are procedural irregularities in the conduct of sale affecting the rights of the judgment debtor and accordingly, set aside the sale by allowing the appeal. The main challenge raised is that the first appellate court had taken into consideration the grounds which were available at the time of drawing ## **O.P.(C) No.1529 of 2014 (O)** :: 3 :: of proclamation schedule at the Rule 90 of Order XXI stage and thereby overlooked sub-rule (3) to Rule 90 of Order XXI CPC. 4. The short question came up for consideration is whether it is permissible to raise the grounds available at the time of drawing of proclamation of sale, on a later stage, namely, under Rule 90 of Order XXI CPC and what is the effect of sub-rule (3)? 5. Sub-rule (3) of Rule 90 of Order XXI debars a party to the suit or decree from raising any ground that could have been taken on or before the date on which the proclamation of sale was drawn up. The question of fixation of upset price and valuation made to the property in the proclamation cannot be challenged in a subsequent stage under Rule 90 CPC, unless the same is available as an integral part of any material irregularity or fraud in publishing and conducting it. Rules 66 and 90 of Order XXI of CPC are dealing with different stages of the execution and court sale. The grounds which were available at the stage of Rule 66 application cannot be raised at the stage of Rule 90 unless the same is intrinsically connected with any material irregularity or fraud in publishing or conducting the sale in execution. Overlapping ## **O.P.(C) No.1529 of 2014 (O)** :: 4 :: of grounds which were available under Rule 66 and Rule 90 of Order XXI CPC is not permissible except to that extent and sub-rule (3) to Rule 90 of Order XXI CPC has to be understood as it would not debar the court in considering a ground which ought to have been raised in an earlier stage of Rule 66, at the stage of Rule 90, but such a ground should be qualified as an integral part of a ground available at the stage of Rule 90 of Order XXI CPC. The inadequate valuation of property sold in execution normally will not come under the purview of material irregularity or fraud in publishing or conducting sale unless the same is available as an integral part of any of the grounds available under Rule 90 of Order XXI CPC. In other words, inadequacy of the consideration in court sale would not normally fall under Rule 90 of Order XXI CPC unless the same forms an integral part of material irregularity or fraud in publishing or conducting sale. 6. The execution court has taken into consideration the importance of the locality, presence of mosque, township etc. near to the property sold in court auction and had entered into a finding regarding inadequacy of consideration to the property sold in execution at the stage of Rule 90 of Order XXI CPC, without looking into the ## **O.P.(C) No.1529 of 2014 (O)** :: 5 :: question whether such inadequacy of consideration would constitute an integral part of any material irregularity or fraud in publishing or conducting the court sale. The grounds which were available at the stage of Rule 66 has to be raised at that stage itself. Otherwise, it would stand as hit by sub-rule (3) to Rule 90 of Order XXI CPC. Only exception which can be carved out is whether such grounds would form an integral part of the grounds which were available at the stage of Rule 90 of Order XXI CPC, without which the court cannot exercise its jurisdiction on the grounds which were available at the stage of Rule 66 at the stage under Rule 90 of Order XXI CPC. Further, the question of waiver would stand as an exception to the said exception. 7. Learned counsel for the respondent placed reliance on the decisions of the Supreme Court in **Bhanwari Lal** v. **Shyamlal and others (AIR 1965 Rajasthan 42)** and **Smt.Laxmi Devi** v. **Sethani Mukand Kanwar and others (AIR 1965 SC 834)** and argued that the grounds which were available under Rule 66(2)(a) stage are also available at the stage of Rule 90 of Order XXI CPC. As discussed above, the grounds which were available at the stage of Rule 66 cannot be availed of at the subsequent stage under Rule 90 unless the same ## **O.P.(C) No.1529 of 2014 (O)** :: 6 :: intrinsically connected with any material irregularity or fraud in publishing or conducting it. For which, it has to be satisfied by the party that the said grounds, being intrinsically connected with the material irregularity or fraud in publishing or conducting it, are relevant. To that extent, the overlapping of grounds which were available under Rule 66 to Rule 90 are permissible. The material question to be decided under Rule 90 is the existence of a material irregularity or fraud in publishing or conducting it, which has to be understood with reference to sub-rule (2) showing substantial injury by reason of such irregularity or fraud. 8. The non-disclosure of encumbrance over the property sold in court auction as required under Rule 66(2)(c) is raised as a ground under Rule 90 of Order XXI CPC. The said ground is not available to the judgment debtor as it would affect only the purchaser. In other words, no injury would result in against the judgment debtor on the abovesaid ground and it would bring the matter outside the purview of sub-rule (2) to Rule 90 of Order XXI CPC. 9. Further, it is not at all permissible for the first appellate court to have a consideration regarding the value of property or the upset price ## **O.P.(C) No.1529 of 2014 (O)** :: 7 :: entered in the proclamation and inadequacy of consideration at the stage of Rule 90 of Order XXI CPC without satisfying whether such inadequacy would form an integral part of the grounds available under Rule 90 of Order XXI CPC. Hence the order of the first appellate court is liable to be interfered by allowing this petition and I do so. 10. In the result, the order of the first appellate court is hereby set aside and the application under Order XXI Rule 90 CPC filed by the judgment dobtor is dismissed. The Original Petition is disposed of as above. **P. Somarajan Judge** ahz/