OP(C) No.1349 of 2013

1 OP(C) No.1349 of 2013 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIA, 1944 ``` ## **`OP(C) NO. 1349 OF 2013`** ## **`AGAINST THE ORDER/JUDGMENT IN EA 16/2009 IN EP 56/2002 IN OS 6/1984 OF THE`** ## **`SUB COURT,ATTINGAL`** ## **`PETITIONER/S:`** - `1 CHELLAMMA,W/O.MADHAVANANDAN, MADHAVA VILAKAM, KEEZHATTINGAL DESOM, KEEZHATTINGAL VILLAGE, THIRUVANANTHAPURAM.` - `2 JOY PRASAD, S/O.MADHAVANANDAN MADHAVAVILAKAM KEEZHATTINGAL DESOM, KEEZHATTINGAL VILLAGE, THIRUVANANTHAPURAM.` - `3 JYOTHI, D/O.MADHAVANANDAN MADHAVAVILAKAM KEEZHATTINGAL DESOM, KEEZHATTINGAL VILLAGE, THIRUVANANTHAPURAM.THE PETITIONERS ARE REPRESENTED BY THEIER POWER OF ATTORNEY HOLDER SRI.SHAJI, S/O.THANKAPPAN, AGED 38 YEARS, AJITHA MANDIRAM, KUTTIKKADU P.O., KADAKKAL,KOTTARAKKARA TALUK, KOLLAM DISTRICT. BY ADVS.` - `SRI.M.R.RAJESH SRI.K.M.ALEXANDER` ## **`RESPONDENT/S:`** - `1 SANTHOSHKUMAR,S/O.MADHAVANANDAN, KULATHINKARA VEEDU, THENAVILA VEEDU, KEEZHATTINGAL REPRESENTED BY HIS WIFE AND POWER OF ATTORNEY SMT.OMANA 695 101.(DECEASED)` - `2 OMANA, W/O.SANTHOSH KUMAR, KULATHINKARA VEEDU THENAVILA VEEDU, KEEZHATTINGAL, KEEZHATTINGAL P.O. 695 101. RECORDED AS LR OF DECEASED R1.` - `3 NISHA.O. SANTHOSH ,D/O. LATE SANTHOSH KUMAR, AGED 24 YEARS, KULATHINKARA VEEDU, THENAVILA VEEDU, KEEZHATTINGAL, KEEZHATTINGAL P.O., NOW RESIDING AT CHARITHRAKOODAM, KEEZHATTINGAL P.O., ATTINGAL, TRIVANDRUM 695 101.` - `4 NANDANA O. SANTHOSH,D/O. LATE SANTHOSH KUMAR, MINOR AGED 14 YEARS, KULATHINKARA VEEDU, THENAVILA VEEDU, KEEZHATTINGAL, KEEZHATTINGAL P.O., NOW RESIDING AT CHARITHRAKOODAM, KEEZHATTINGAL P.O., ATTINGAL, TRIVANDRUM 695 101. (MINOR) REPRESENTED BY HER MOTHER AND GUARDIAN OMANA (2ND RESPONDENT IN OP).` ``` ADDL. R3 AND R4 IMPLEADED AND R2 IS RECORDED AS LR OF DECEASED R1 VIDE ORDER DATED 12/10/2022 IN I.A.NO.9114/2014. BY ADV M.P.RAMNATH ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26.10.2022, THE ``` ``` COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C) No.1349 of 2013 ## **C.S DIAS,J.** **--------------------------OP(C) No.1349 of 2013** **----------------------------Dated this the 26[th] day of October, 2022.** ## **JUDGMENT** Aggrieved by Ext P4 order dated 7.10.2009 in EA No.16/2009 in E.P No.56/2002 in OS No.6/1984 of the Court of the Subordinate Judge, Attingal, the judgmentdebtors have filed the original petition. The respondents 1 and 2 in the original petition are the original decree holder and his wife. Pending the original petition, the first respondent died and his legal representatives have been impleaded as additional respondents 3 and 4. 2. The facts in brief, relevant for the determination of the original petition, are: the first respondent had filed the above execution petition, to execute the decree passed in the above suit. The petitioners are represented by their power of attorney holder. The first respondent had initially filed EP 6/1999 and got his share delivered on 1.9.1999. Thereafter, the present execution petition was 3 OP(C) No.1349 of 2013 filed for the realisation of the owelty amount of Rs.31,517/-. The first respondent proceeded against 6.5 cents of land of the petitioners, which is worth more than Rs.10,00,000/-. The second petitioner bid in the sale, which was confirmed on 1.1.2009. The petitioners filed EA No.16/2009 (Ext P3) to set aside the sale. By the impugned Ext P4 order, the court below dismissed Ext P3 application. The petitioners filed EP No.56/2002 (Ext P5) to correct the sale certificate. Even though the petitioners made arrangements to challenge Ext P4 earlier, due to the lethargy of their counsel, the same was not done. The petitioners were under the impression that everything was taken care of. The dismissal of Ext P3 application by Ext P4 order visits the petitioners with adverse civil consequences and is liable to be interfered with this Court under Article 227 of the Constitution of India. Hence the original petition. 3. Heard; Sri. M.R Rajesh, the learned Counsel appearing for the petitioners and Sri.M.P Ramnath, the learned Counsel appearing for the respondents. 4 OP(C) No.1349 of 2013 4. Sri.M.R Rajesh vehemently argued that the entire proceedings leading to Ext P4 order is manifestly illegal and unsustainable in law. The specific contention of the petitioners in Ext P3 application was that they had not received notice in the execution petition, which goes to the very roots of the matter and vitiates the sale. Moreover, the first respondent had proceeded against 6.5 cents of land of the petitioners, to realise a meagre amount of Rs.31,517/-. The court below, without adverting to any of the contentions raised in Ext P3 application, has passed Ext P4 order. He placed reliance on the decision of the Hon’ble Supreme Court in **Nani Gopal Paul vs. T.Prasad Singh and others** [(1995) 3 SCC 579], this Court in **Sithara Associates vs. Oshon Treads Ltd** [2014 (2) KLT SN 30] and the High Court of Punjab and Haryana in **Ludhiana Improvement Trust vs. Balraj Singh and Ors** [AIR 2002 P&H 277] to fortify his contentions. He urged this Court to set aside Ext P4 order. 5 OP(C) No.1349 of 2013 5. Sri.M.P Ramnath countered the above submission and defended Ext P4 order. He argued that the sale was held on 29.10.2008. Ext P3 application was filed on 21.1.2009, i.e., beyond the statutory time period of 60 days prescribed under Article 127 of the Limitation Act. The application ought to have been filed on or before 28.12.2008. Hence, the application was hopelessly time barred. Therefore there is no question of going to the merits of the contention. The impugned order is appealable. Without resorting to statutory remedy, the petitioners have filed the original petition three years after the passing of the impugned order. This Court has till date not admitted the original petition. The case has been adjourned, at the instance of the petitioners, time and again on the ground that the matter could be amicably settled between the parties. The original petition is devoid of any merits and is to be dismissed. 6. The point is whether there is any error or illegality in Ext P4 order. 6 OP(C) No.1349 of 2013 7. Admittedly, the sale took place on 29.10.2008. The petitioners filed Ext P3 application on 21.1.2009, i.e., beyond the statutory time period of 60 days as laid down under Article 127 of the Limitation Act. 8. The bone of contention of the petitioners is that they did not receive notice in the execution petition. It is evident from the averments in the original petition that the petitioners are represented through power of attorney holder. They have not raised the said contention as a ground in the original petition. 9. The application was filed to set aside the sale, which has to be necessarily filed under Order 21 Rule 90 of the Code of Civil Procedure (in short’ Code’), 1908. Therefore, Ext P4 order is passed under Order 21 Rule 92 of the Code. An order passed under Order 21 Rule 92 of the Code is appealable under Order 43 Rule 1 (j) of the Code. An appeal under the said provision has to be filed within 30 days as provided under Article 116 of the Limitation Act. 7 OP(C) No.1349 of 2013 10. The petitioners, without invoking their alternative statutory remedy within the prescribed time period, at their sweet will and pleasure, after three years have approached this Court and filed the original petition. 11. Even though the original petition was filed on 2.4.2013, this Court has not admitted the original petition. Nevertheless, this Court directed the petitioners to deposit an amount of Rs.50,000/- in fixed deposit in a Nationalised Bank and produce the same before the court below, as a condition precedent to keep the delivery in abeyance. Thereafter, the parties were referred to mediation. But, the dispute was not settled. 12. The original petition is filed to set aside the sale on the ground of material irregularity and vitiating circumstances. What the petitioners have not done directly, they cannot be permitted to do indirectly, that too, through an original petition filed under Article 227 of the Constitution of India with an inordinate delay of three years. 8 OP(C) No.1349 of 2013 13. It is trite, the power of superintendence of this Court under Article 227 of the Constitution of India is to keep the Subordinate Courts within their bounds of authority and to ensure that they do not commit any illegality. I do not find any error or illegality, leave alone material irregularity in Ext P4 order warranting interference by this Court under Article 227 of the Constitution of India. The original petition is devoid of any merits and is dismissed. The petitioners would be at liberty to move the court below and seek for refund of the fixed deposit. sd/- sks/26.10.2022 **C.S.DIAS, JUDGE** 9 OP(C) No.1349 of 2013 ## **`APPENDIX OF OP(C) 1349/2013`** ``` PETITIONER EXHIBITS ``` ``` EXT.P-1 A TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONERS DATED 18.3.2005 ``` ``` EXT.P-2 A TRUE COPY OF E.P.NO.56/2002 IN O.S.NO.6/1984 OF SUB COURT ATTINGAL. EXT.P-3 A TRUE COPY OF E.A.NO.16/2009 IN E.P.NO.56/2002 IN O.S.NO.6/1984 OF SUB COURT, ATTINGAL. EXT.P-4 A TRUE COPY OF ORDER DATED 7.10.2009 E.A.NO.16/2009 IN E.P.NO.56/2002 IN O.S.NO.6/1984 OF SUB COURT, ATTINGAL EXT.P-5 A TRUE COPY OF THE PETITION FOR CORRECTING THE SALE CERTIFICATE IN E.P.NO.56/2002 IN O.S.NO.6/1984 OF SUB COURT ATTINGAL. ```