OP(C) No. 2326 of 2012

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 8[TH] DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944 ``` ## _`OP(C) NO. 2326 OF 2012`_ ``` AGAINST THE ORDER/JUDGMENT IN EA NO.245/11 IN EA 15/10 IN EP 20/06 IN LAR 49/2002 OF SUB COURT, THODUPUZHA ``` ## _`PETITIONER/S:`_ ``` STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, IDUKKI. BY ADV.GOVERNMENT PLEADER ``` ## _`RESPONDENT/S:`_ ``` BOBY S/O.ULAHANNAN, KUTTUMALAPUTHEN PURA HOUSE, PUTHUPPARIYARAM, MANAKADU, PIN – 678733. BY ADVS. SMT.P.G.LIPSY GASPER SRI.SAIGI JACOB PALATTY ``` ``` THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` OP(C) 2326/2012 2 ## **C.S.DIAS, J.** ## **-----------------------------------OP(C) No.2326 of 2012** ## **------------------------------------Dated this the 8[th] day of November, 2022** ## **J U D G M E N T** Aggrieved by Ext.P3 order passed by the Court of Subordinate Judge, Thodupuzha in E.A No.245/11 in E.A No.15/10 in E.P No.20/06 in L.A.R No.49/02, the judgment debtor/State has filed the Original Petition. The respondent is the decree holder. 2. The facts leading to Ext.P3 order, in a narrow compass, are : In execution of the decree passed in L.A.R No.49/02, the respondent attached the property of the petitioner/State having an extent of 2.372 cents in Thodupuzha Village. The property was auctioned and the sale was confirmed in favour of the respondent on OP(C) 2326/2012 3 25.3.2010. In a settlement Adalath conducted by the Revenue Department, the dispute between the parties was settled for an amount of Rs.1,62,100/-. Ext.P1 is the memo of settlement arrived at before the Adalath. The petitioner has deposited the above amount before the court below in full satisfaction of the decree. Thereafter, the petitioner filed E.A No.245/11 (Ext.P2) to set aside the sale. The court below, by the impugned Ext.P3 order, dismissed Ext.P2 application on the ground that the application is time barred, in view of Article 127 of the Limitation Act. This Court in a case of identical circumstances in O.P(C) No.3869/2011 (Ext.P4) had set aside the sale, taking into account the settlement arrived at between the parties. The petitioner is entitled to the same benefit as in Ext.P4 judgment. Hence, the Original Petition. 3. Heard the learned Government Pleader OP(C) 2326/2012 4 appearing for the petitioner/State and Adv.P.G.Lipsy Gasper, the learned counsel appearing for the respondent. 4. The question is whether the sale in E.P No.20/06 can be set aside. 5. It is agreed by both parties that subsequent to the sale that was confirmed on 25.3.2010, the dispute between the petitioner and the respondent was settled in the settlement Adalath on 21.4.2011, whereby the petitioner agreed to pay the respondent, an amount of Rs.1,70,205/-. Thereafter, the petitioner filed Ext.P2 application to set aside the sale. The application was dismissed by the court below by Ext.P3 order. 6. In a case of identical circumstances, this Court, after relying on the decision in **Sree Jain Swetambar Terapanthi Vid (S)** v. **Phundan Singh and Others [AIR 1999 SC 2322]** , has held as follows: OP(C) 2326/2012 5 “9. The Supreme Court in the above cited decision was considering an order of injunction passed by the High Court though not in accordance with the provisions of law. The Supreme Court referred to various decisions and held: “From the above discussion, the principle that emerges is that where the High Court has granted some relief by way of social justice or on equitable grounds without violating the rights of other parties, though in law such relief was not permissible, the Supreme Court would not interfere in its discretionary jurisdiction under Article 136 if the order under appeal advances the cause of justice and if it is just and equitable so to do.” 10. In the present cases, no question of social justice is involved. But, on equitable grounds I am inclined to grant relief to the respondent so far as setting aside of the sale is concerned. Such a course is necessary to grant relief to the petitioners also pursuant to the settlement in the Adalath. Granting relief in the circumstances would not affect the right of either of the parties. In that situation though, grant of such a relief is not strictly provided by the Code, I am inclined to invoke the power under Article 226 of the Constitution of India, set aside sale of properties of respondent - State in both the execution proceedings and permit petitioners to withdraw the amount in deposit. So far as the balance amount if any payable to the petitioners OP(C) 2326/2012 6 in each case is concerned, respondent has to deposit such amount if any in the executing court within a period of four (4) months from this day failing which it will be open to the petitioners to realise the balance amount if any by way of execution of the award of the Adalath.” 7. Following the ratio decidendi in Ext.P4 judgment and the law laid down by the Hon'ble Supreme Court in the aforecited decision, I am of the view that the petitioner is entitled for the same relief as granted in Ext.P4 judgment. In the result, in exercise of supervisory powers of this Court under Article 227 of the Constitution of India, I allow the Original Petition as follows: - (i) Ext.P3 order is set aside. - (ii) Ext.P2 application is allowed. (iii) The auction sale of the property of the petitioner/State having an extent of 2.372 cents comprised in Survey no.194/13 of Thodupuzha Village OP(C) 2326/2012 7 in E.P No.20/06 in L.A.R No.49/02 of the Court of Subordinate Judge, Thodupuzha is set aside. (iv) The court below is directed to release the amount of Rs.1,70,205/- deposited by the petitioner/State in E.P No.20/06 to the respondent, in accordance with law. (v) The court below shall communicate the order setting aside the sale in the execution petition to the concerned statutory authorities. Sd/- **C.S.DIAS JUDGE** ``` jg ``` OP(C) 2326/2012 8 ## _`APPENDIX`_ ``` PETITIONER’S EXHIBITS ``` ``` P1 :TRUE COPY OF THE SETTLEMENT ARRIVED AT IN THE SETTLEMENT ADALATH CONDUCTED BY THE REVENUE DEPARTMENT ON 21.4.2011 ``` ``` P2 : TRUE COPY OF THE PETITION TO SET ASIDE THE SALE, EA NO.245/2011. ``` ``` P3 :TRUE COPY OF THE ORDER DATED 18.8.2011 IN EA NO.245/2011 IN EP NO.20/2006 IN LAR NO.49/2002 OF THE SUB COURT, THODUPUZHA. ``` ``` P4 :TRUE COPY OF THE JUDGMENT DATED 3.1.2012 IN OP© 3869/2011. ```