PRADEEPKUMAR v. SUSEELAN

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 WP(C).No. 5499 of 2010(O) -------------------AGAINST THE ORDER IN EA NO.228/2008 IN EP 1/2004 IN OS.312/1999 of MUNSIFF COURT, KARUNAGAPPALLY .................... PETITIONER(S): --------------- PRADEEPKUMAR, VAZHUVELIL VEEDU, UPPUTHARA P.O., IDUKKI. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): --------------- SUSEELAN, ASANTAYYATH VEEDU, MADATHIKARAZHA MURI, OACHIRA, KARUNAGAPPALLY. ADV. SRI.K.P.SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP() NO.5499/2010 ## APPENDIX PETITIONER'S EXHIBITS: EXT.P1 ATRUE COPY OF THE EP NO.2/2004 IN OS 312/99 DATED 32.1.2004 OF THE MUNSIFF COURT, KARUNAGAPPALLY EXT.P2 A TRUE COPY OF THE PROCLAMATION SCHEDULE DATED 2.6.2005 IN OS 312/1999 OF THE MUNSIFF COURT, KARUNAGAPPALLY EX.P3 A TRUE COPY OF THE OBJECTION IN OS 312/99 OF MUNSIFF COURT, KARUNAGAPPALLY DATED 17.6.2006 EXT.P4 A TRUE COPY OF THE AFFIDAVIT OF THE RESPONDENT DATED 1`7.11.2000 IN OS 312/1999 EXT.P5 A TRUE COPY OF THE EXECUTION B DIARY IN EP NO.1/2004 IN OS 312/1999 OF MUNSIFF COURT, KARUNAGAPPALLY EXT.P6 A TRUE COPY OF THE EA 228/2008 IN OS 312/1999 DATED 22.10.2008 EXT.P7 A TRUE COPY OF THE OBJECTION OF THE RESPONDENT DATED 15.11.2008 IN OS 312/1999 EXT.P8 A TRUE COPY OF THE COMMON ORDER IN EA 228/2008 AND IN EA 229/2008 IN OS 312/1999 DATED 30.11.2009 OF MUNSIFF COURT, KARUNAGAPPALLY EXT.P9 A TRUE COPY OF THE EA 229/2008 IN OS 312/1999 DATED 22.10.2008 OF MUNSIFF COURT, KARUNAGAPPALLY RESPONDENT'S EXHIBITS: EXT.R1(a) TRUE COPY OF THE SCHEDULE OF ATTACHMENT FILED BY THE RESPONDENT IN OS 312/1999 EXT.R1(b) TRUE COPY OF THE SCHEDULE OF THE PROPERTY DATED 11.3.2004 EXT.R1(c) TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P4 NAMELY TO IA NO.3417/2000 EXT.R1(d) TRUE COPY OF THE CERTIFICATE DATED 3.1.2007 EXT.R1(e) TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER ON 3.3.2008 EXT.R1(f) TRUE COPY OF THE EP NO.80/2008 EXT.R1(g) TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 18.10.2008. //TRUE COPY// ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------W.P.(C) No.5499 of 2010 -------------------------------------Dated this the 22[nd] day of September, 2010.** ## **JUDGMENT** Judgment debtor in E.P.No.1 of 2004 in O.S.No.312 of 1999 of the court of learned Munsiff, Karunagappally challenges Ext.P8, order dismissing E.A.No.228 of 2008 filed under Section 47 of the Code of Civil Procedure (for short, “the Code”) to set aside the court auction sale held on 31.01.2008 on the ground of alleged non-compliance with Rule 64 of Order XXI of the Code. Executing court has dismissed the application on two grounds: firstly, application is filed beyond period prescribed under Article 127 of the Limitation Act (for short, “the Act:) and, secondly; petitioner has not adduced evidence to show value of the property as he claimed. It is contended by learned counsel for petitioner/judgment debtor placing reliance on the decision of the Apex Court in ## **S.Mariyappa (Dead) by Lrs. & Others v. Siddappa and another** **(2004 (3) CTC 671)** that non-compliance of Rule 64 of Order XXI of the Code affected jurisdiction of the executing court to conduct the sale, sale conducted without such compliance is a nullity and could be set aside on an application made under Section 47 of the Code the period of limitation of which is governed by the residuary Article (Article 137) of the Act. It is contended that even after petitioner preferred objection to the draft proclamation sale (DPS) executing court has not applied its mind and did not direct respondent to file amended proclamation of sale as revealed from the copy of B diary produced in the Writ **WP(C) No.5499/2010** 2 Petition. It is therefore contended that dismissal of E.A.No.228 of 2008 is not correct legally or factually. Learned counsel for respondent has contended that the application is hopelessly barred by limitation since on the grounds pleaded, the application though given a label of Section 47 of the Code is one falling under Rule 90 of Order XXI of the Code. It is contended that no material was produced to prove value of land as claimed by petitioner in his objection to the DPS. Learned counsel has invited my attention to the relevant records to show that petitioner could not have urged that valuation of property is not proper. 2. 15 cents belonging to the petitioner was brought up for sale by the respondent suggesting its market value as Rs.30,000/-. Petitioner preferred Ext.P3, objection stating that value of the property is around Rupees four lakhs. Respondent produced Ext.R1(d), valuation certificate dated 03.01.2007 issued by the Tahsildar stating value of the property as Rs.49,198/-. It is seen from Ext.P5, copy of B diary that after adjournment of the execution petition for several days for various reasons the matter came up for hearing on 01.12.2007 on which day respondent produced Ext.R1(d), valuation certificate and the execution petition was then posted for hearing on 03.12.2007. That day the upset price was fixed (Rupees one lakh only) and it was ordered that the property shall be proclaimed and sold on 31.01.2008. On 31.01.2008 property was sold for Rs.1,00,009/- and purchased by the respondent as permitted by the executing court. Execution petition was posted on 03.03.2008 for confirmation of sale. In the meantime respondent filed Ext.R1(f) claiming that even after **WP(C) No.5499/2010** 3 appropriating the sum of Rs.1,00,009/- towards the amount due under the decree a further sum of Rs.45,820/- is due from petitioner and the said amount may be realised from petitioner and his other assets. That execution petition was objected by petitioner vide Ext.R1(g) wherein he stated that after adjusting sale consideration Rs.1,00,009/- towards balance amount due to respondent he has paid Rs.45,820/- and hence the claim made in Ext.R1(f) is not correct. It is while so, that 265 days after the sale on 31.01.2008 petitioner filed E.A. No.228 of 2008 to set aside the sale alleging that there was no proper application of mind and non-compliance of Rule 64 of Order XXI of the Code. 3. Rule 90 of Order XXI of the Code enables judgment debtor to apply to set aside the sale on material irregularity or fraud in publishing and conducting the sale. There is no allegation of fraud so far as the present case is concerned. There is also no allegation touching any irregularity in conducting the sale. What remained is whether there is any material irregularity in publishing the sale and whether on the grounds pleaded by petitioner the application came under Section 47 of the Code so that it is governed by Article 137 of the Act or, it came under Rule 90 of Order XXI of the Code and is governed by Article 127 of the Act. In the decision referred to above, reliance is placed on the decision in **Desh Bandhu Gupta v. N.L.Anand & Rajinder Singh [(1994) 1 SCC 131]** . It was held that a total absence of drawing up of proclamation of sale and settlement of its term by judicial **WP(C) No.5499/2010** 4 application of mind rendered the sale a nullity which is covered by Section 47 of the Code. But non-application of mind to the question whether sale of a part of the property would satisfy the decree debt is a material irregularity doing substantial injury to the judgment debtor attracting Rule 90 of Order XXI of the Code. That decision and the decision relied on by learned counsel would show that Section 47 of the Code applied to a case of total absence of drawing up of proclamation of sale and settlement of its terms by judicial application of mind which rendered the sale a nullity. On the other hand if it is a case of a proclamation of sale being drawn up without application of mind as to whether sale of a portion of the property is sufficient to discharge the decree debt it is not a case of total absence of drawing up of a proclamation of sale but only nonapplication of mind under Rule 64 of Order XXI of the Code in which case even as per the decision relied on by learned counsel and the decision in Desh Bandhu Gupta's case (supra) it could only come under Rule 90 of Order XXI of the Code. Referring to the decision in Desh Bandhu Gupta's case (supra) and other decisions on the point, I had occasion to consider this aspect in C.R.P.No.60 of 2010 and vide order dated 30.07.2010 it was held that where the allegation was only that proclamation of sale was drawn up without application of mind whether sale of a portion of the property is sufficient to discharge the decree debt, the case came under Rule 90 of Order XXI of the Code. In the present case there is a proclamation of sale drawn up by the executing court. No doubt, according to the petitioner it was without application **WP(C) No.5499/2010** 5 of mind as required under Rule 64 of Order XXI of the Code. The application, notwithstanding the label given to it (Section 47) came under Rule 90 of Order XXI of the Code governed by Article 127 of the Act. Admittedly the application is made beyond 60 days from the date of sale. Hence it is barred by limitation. I find no reason to interfere with the finding of executing court in that regard. 4. Next question is whether executing court had applied its mind to the matter while fixing upset price. Even before upset price was fixed (as Rupees one lakh only) on 03.12.2007 respondent produced Ext.R1(d), valuation certificate where value of the property was assessed by the Tahsildar as Rs.49,198/-. On the side of petitioner, he had not produced any document. He did not take out a commission to conduct a local investigation as to value of the property. What was available was only the bald statement in his objection to the draft proclamation of sale that property is valued at Rupees four lakhs. It is taking into account valuation given by the Tahsildar in Ext.R1(d) that executing court fixed the upset price at Rupees one lakh. 5. Reliance is placed by learned counsel for petitioner on Ext.P4, objection preferred by the respondent on the trial side to an application to substitute the property attached. It would appear that another item of property was attached before judgment and petitioner wanted that property to be substituted by the property which is sold in auction. In Ext.P4, objection, respondent (according to the petitioner) has stated that value assessed by **WP(C) No.5499/2010** 6 Tahsildar is Rs.2,50,000/-. Ext.P4 is explained by learned counsel for respondent that it was concerning the property sought to be substituted and certain other items. No attempt was made by petitioner to prove value of property as claimed by him even in E.A.No.228 of 2008. In the circumstances executing court found that there was nothing on record to show that property was valued as claimed by petitioner. It is with Ext.R1(d), valuation certificate on record that executing court, as against value of property suggested by respondent has fixed the upset price a Rupees one lakh. It cannot be said that there was no application of mind. I find little reason to interfere. Writ Petition fails. It is dismissed. **THOMAS P.JOSEPH, Judge.** **cks**