O.P.(FC) No. 264 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran
P. G. Ajithkumar
Judgment Date: 2023-03-13
Court Decision / Holding: Original Petition under Article 227 of the Constitution is dismissed; the petition cannot be entertained in view of available statutory remedies; the Family Court’s sale orders stand and the petition fails.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Anilkumar

Respondents

Soumya G. Nair

Legal Representation & Advocates

Counsels for Petitioners

• P. Haridas
• Biju Hariharan
• Shijimol M.
• Mathew P.C.
• Shijin Rishikesh Haridas

Counsels for Respondents

• Nobel Raju

Case Synopsis & Summary

Anilkumar, the judgment debtor in O.P. No. 40 of 2013 on the file of the Family Court, Pathanamthitta, challenges Exts. P4, P7 and P8 before the Kerala High Court under Article 227. The Family Court had ordered sale of 18 cents out of 50 cents of attached land after a dispute about which portion was liable to be sold; the sale was fixed to, and ultimately held on, 24.03.2022 with sale proceedings recorded for confirmation on 24.06.2022. The petitioner contends that Order XXI Rule 66 notice was not properly issued or affixed, that no proper proclamation under Rule 54 was made, and that the property schedule and description were incomplete (P5, P6). He further argues that the sale was conducted without making the children of the respondent parties to the execution petition and invokes Rule 90, Order XXI for setting aside the sale. The respondent contends that the sale was properly conducted and that the petitioner should have availed statutory remedies rather than a constitutional petition; the question of limitation is discussed. The Court cites Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society and A. Venkatasubhiah Naidu v. S. Chellappan to emphasize restraint on Article 227 where statutory remedies exist, and dismisses the petition.

Provisions of Law Cited

Article 227 of the Constitution of IndiaOrder XXI Rule 66 (CPC)Order XXI Rule 54 (CPC)Rule 90, Order XXI (CPC)Section 104(1)(i) read with Order XLIII, Rule 1(r) CPCLimitation Act, 1963 (Article 127)Code of Civil Procedure, 1908 (CPC)

Legal Doctrines & Maxims

Exhaustion of statutory remedies before invoking Article 227 (constitutional jurisdiction)
Principle of restraint in supervisory jurisdiction when a statutory remedy exists
Duty to consider available remedies before entertaining writ petitions under Article 227

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends that notice under Order XXI Rule 66 was not properly issued or affixed at the property; no proper publication/proclamation under Rule 54; property schedule incomplete; sale without making children of the respondent parties; grounds for setting aside sale under Rule 90; argues remedy under Article 227 is warranted in supervisory jurisdiction.

Contentions of Respondents

Argue sale was properly conducted; remedy, if any, lies under Rule 90 or by appeal under Section 104(1)(i) read with Order XLIII, Rule 1(r); Article 227 should not be invoked due to available statutory remedies; the petition lacks merit and is barred by limitation.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society	(2019) 9 SCC 538	Positive	Cited to caution restraint in invoking Article 227 where a statutory remedy exists.
A. Venkatasubhiah Naidu v. S. Chellappan	(2000) 7 SCC 695	Positive	Cited for the principle that courts should direct recourse to remedies under law before resorting to constitutional jurisdiction.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 13[TH] DAY OF MARCH 2023 / 22ND PHALGUNA, 1944** **O.P.(FC) NO. 264 OF 2022** **AGAINST THE ORDER DATED 24.03.2022 IN E.A.NO.3 OF 2022 IN E.P.NO.20 OF 2015 AND ORDER IN E.P.NO.20 OF 2015 IN O.P.NO.40 OF 2013 OF THE FAMILY COURT, PATHANAMTHITTA** ## **PETITIONER:** **ANILKUMAR** **AGED 51 YEARS, S/O GOPALAKRISHNA KURUP, KOCHUVEETIL, KALLARAKADAVU, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN – 689645.** **BY ADVS. P.HARIDAS BIJU HARIHARAN SHIJIMOL M.MATHEW P.C.SHIJIN RISHIKESH HARIDAS** ## **RESPONDENT:** **SOUMYA G.NAIR, AGED 34 YEARS, KOCHUVEETIL, KALLARAKADAVU, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN – 689645.** **BY ADV NOBEL RAJU** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.264 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner is the judgment debtor in O.P.No.40 of 2013 on the file of the Family Court, Pathanamthitta. He invoked the jurisdiction of this Court under Article 227 of the Constitution of India in order to get Exts.P4, P7 and P8 orders set aside. 2. On 23.05.2022 notice was directed to be served on the respondent. Confirmation of sale was ordered to be deferred. The respondent entered appearance through her learned counsel. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. O.P.No.40 of 2013 was filed by the respondent, who is the wife of the petitioner, seeking a decree of divorce. The matter was settled and a compromise decree was passed. In terms of the decree, Rs.40 lakhs was liable to be paid by the petitioner to the respondent and two children. Rs.15 lakhs was paid and the balance remained unpaid. Therefore the respondent filed 3 ## O.P.(FC) No.264 of 2022 E.P.No.20 of 2015. The Family Court attached 50 cents of land along with a residential building thereon belonging to the petitioner. There occurred disputes with respect to what part of the said property was liable to be sold. The Family Court eventually decided to put in auction 18 cents out of the property under attachment. Ext.P4 is the order of the Family Court directing sale of 18 cents of the property. When the property was proclaimed for sale, the petitioner filed E.A.No.3 of 2022 raising objection that the children of the respondent were not made parties to the execution petition, and therefore, the sale could not be held. The Family Court after considering the matter in detail ordered as per Ext.P7 that the sale was for and on behalf of the children also and accordingly the objection was overruled. The property was accordingly put in public auction on 24.03.2022. Ext.P8 is the order recording sale of the property, which reads,- “Sale conducted. Decree holder and his two sons present. Decree holder purchased the scheduled property for an amount of Rs.43,55,000/-. No other bidders present. Since the decree holder is the purchaser it is posted for confirmation to 24.06.2022.” 4 O.P.(FC) No.264 of 2022 5. In the aforementioned factual situation, the petitioner has filed this Original Petition seeking to set aside Exts.P4, P7 and P8 orders. The essential reasons canvassed for setting aside Exts.P4, P7 and P8 are contained in paragraph Nos.10, 11 and 12 of this Original Petition, which read,- “10. The notice for auction under Order XXI Rule 66 was not made in the proper manner. It was not affixed anywhere in the property or near it. No notice was as contemplated Rule 66(2) was given to petitioner. No proclamation as contemplated under Order XXI Rule 54 was made. 11. The case was called on 24.03.2022 when learned counsel for the petitioner submitted about nonpublication of notice it was stated that such a notice was published in the court premises. Upon inspection petitioner found that a notice and a property schedule was separately published/ pasted at different places on different dates. True copy of the notice under Order XXI Rule 66 dated 03.03.2022 issued by the Junior Superintendent, Family Court, Pathanamthitta is produced herewith and marked as Exhibit P5. True copy of the property schedule in E.P.No.20/2015 in OP No. 40/2013 of the Family Court, Pathanamthitta dated 04.03.2022 is produced herewith and marked as Ext.P6. 5 O.P.(FC) No.264 of 2022 12. Ext.P5 notice does not contain schedule of the property. Ext.P6 schedule does not contain full description of the property including the house. However going by the description the house will be bifurcated.” 6. A perusal of the averments extracted above reveals that grounds constituting a prayer for setting aside the sale as provided in Rule 90 of Order XXI of the Code of Civil Procedure, 1908 are mentioned therein. During the course of arguments, the learned counsel appearing for the petitioner submitted that a petition for setting the sale under Rule 90, Order XXI of the Code was already filed before the Family Court, Pathanamthitta. The learned counsel appearing for the respondent pointed out that the said application was filed beyond the period of limitation prescribed under Article 127 of the Limitation Act, 1963. That is a question not germane for consideration in this proceedings. The grounds urged by the petitioner constitute a cause of action for an application for setting aside the sale under Rule 90 of Order XXI. He cannot invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution of India for getting such a remedy. 6 O.P.(FC) No.264 of 2022 7. The Apex Court in **Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others v. Tuticorin Educational Society and others [(2019) 9 SCC 538]** cautioned the courts about the restraint to be shown while invoking Article 227 of the Constitution of India in cases where there is statutory remedy. It was held: - “11. Secondly, the High Court ought to have seen that when a remedy of appeal under Section 104 (1)(i) read with Order XLIII, Rule 1(r) of the Code of Civil Procedure, 1908, was directly available, the respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In **A. Venkatasubhiah Naidu v. S. Chellappan [(2000) 7 SCC 695]** this Court held that 'though no hurdle can be put against the exercise of the Constitutional powers of the High Court, it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a Constitutional remedy.” In view of the law laid down in the aforesaid decision, this Original petition under Article 227 of the Constitution of 7 O.P.(FC) No.264 of 2022 India cannot be entertained. It therefore fails. Accordingly, this Original Petition is dismissed. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 8 O.P.(FC) No.264 of 2022 ## **APPENDIX OF OP (FC) 264/2022** **PETITIONER EXHIBITS** - **EXHIBIT P1** **TRUE COPY OF THE EXECUTION PETITION IN E.P. NO. 20/2015 IN O.P. 40/2013 BEFORE FAMILY COURT, PATHANAMTHITTA DATED 21.04.2015** - **EXHIBIT P2 TRUE COPY OF THE OBJECTION IN EA NO. 3/2022 IN EP NO. 20/2015 IN O.P. NO. 40/2013 DATED 14.02.2022 BEFORE THE FAMILY COURT PATHANAMTHITTA** - **EXHIBIT P3 TRUE COPY OF THE VALUATION CERTIFICATE ISSUED BY TAHSILDAR KOZHENCHERY DATED 4.2.2022** - **EXHIBIT P4 TRUE TRANSCRIBED COPY OF THE ORDER OF THE FAMILY COURT, PATHANAMTHITTA EP NO. 20/2015 IN OP 40/2013 DT. 24.03.22** - **EXHIBIT P5 TRUE COPY OF THE NOTICE UNDER ORDER XXI RULE 66 DATED 03.03.2022 ISSUED BY THE JUNIOR SUPERINTENDANT, FAMILY COURT, PATHANAMTHITTA** - **EXHIBIT P6 TRUE COPY OF THE PROPERTY SCHEDULE IN EP NO. 20/2015 IN OP NO. 40/2013 OF THE FAMILY COURT, PATHANAMTHITTA DATED 04.03.2022** - **EXHIBIT P7 TRUE COPY OF THE ORDER IN EA NO. 3/2022 IN EP NO. 20/2015 DATED 24.03.2022 OF THE FAMILY COURT, PATHANAMTHITTA** **EXHIBIT P8** - **TRUE COPY OF THE ORDER IN EP NO. 20/2015 IN OP NO. 40/2013 DATED 24.03.2022 OF THE FAMILY COURT, PATHANAMTHITTA** 9 O.P.(FC) No.264 of 2022 ## **EXHIBIT P9** **TRUE COPY OF THE E.A NO.5/2022 IN E.P. NO. 20/2015 IN O.P. NO. 40/2013OF FAMILY COURT, PATHANAMTHITTA DATED 25.10.2022**