Pushpa Somarajan v. Salimkumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945** **F.A.O. NO. 107 OF 2023** **AGAINST THE ORDER DATED 13.04.2023 IN E.A.NO.42 OF 2023 IN EP 29 OF 2018 OF THE SUB COURT, PATHANAMTHITTA APPELLANT/1ST JUDGMENT DEBTOR/PETITIONER:** **PUSHPA SOMARAJAN** **AGED 52 YEARS, W/O LATE SOMARAJAN, RESIDING AT MANNIL HOUSE, ANAPPARA, KUMBAZHA MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERY TALUK, PATHANAMTHITTA DISTRICT, PIN – 689645. BY ADV.ABHIJITH K.B.** ## **RESPONDENT/DECREE HOLDER/RESPONDENT/AUCTION PURCHASER:** **SALIMKUMAR** **AGED 68 YEARS, S/O KUNJUPILLAI, RESIDING AT AMBADI HOUSE, CHITTOOR MURY, DOCTORS LANE, PATHANMTHITTA VILLAGE, KOZHEENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PATHANAMTHITTA P.O, PIN – 689645.** **BY ADVS. K.SHAJ BEENA N.KARTHA C.IJLAL POORNIMA RAJAN ARUN CHAND BHARAT VIJAY P. MAJID MUHAMMED K. MINU VITTORRIA PAULSON GOPIKA GOPAL MEERA NAIR.I.P** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 16.10.2023, THE COURT ON 07.11.2023 DELIVERED THE FOLLOWING:** **2** F.A.O.No.107 of 2023 ## P.B. SURESH KUMAR & P.G. AJITHKUMAR, JJ. ----------------------------------------------------------------F.A.O.No.107 of 2023 ----------------------------------------------------------------Dated this the 7[th] day of November, 2023 ## JUDGMENT ## P.G.Ajithkumar, J. This appeal under Section 104 read with Order XLIII, Rule 1(j) of the Code of Civil Procedure, 1908 is directed against an order of the Sub Court, Pathanamthitta dismissing an application for setting aside sale filed by the appellant who is the 1[st] judgment debtor. The property sold belongs to the 2[nd] judgment debtor. 2. Heard the learned counsel appearing for the appellant and the learned counsel for the respondent-decree holder. 3. O.S.No.55 of 2015 was filed by the respondent seeking a decree for realisation of Rs.35 lakhs along with its interest. During pendency of the suit, property of the appellant was held under attachment. After passing a decree, the respondent filed E.P.No.29 of 2018, and on realising that the appellant already alienated her property, moved the execution court by filing E.A.No.101 of 2021 to attach the property of the **3** F.A.O.No.107 of 2023 2[nd] judgment debtor. The property of the 2[nd] judgment debtor was attached and brought on sale. The respondent had filed E.A.No.194 of 2021 in order to take cognizance of the mortgage outstanding on the property and, if necessary, for a ratable distribution. It was after that the auction sale was held on 23.01.2023. The respondent bid the property after obtaining permission under Rule 72 of Order XXI of the Code, for an amount of Rs.70,77,000/-. 4. In E.A.No.42 of 2023 the appellant had raised several contentions in support of her plea that the sale was shrouded by fraud and illegality, entailing the same to be set aside. The essential contentions were that the property was not attached in terms of the provisions of Rule 54 of Order XXI of the Code, the upset price was reduced without giving notice to all the parties, the description of the property in the proclamation schedule was incorrect inasmuch as the building was not shown and that the mortgage outstanding in favour of the Kerala State Financial Enterprises was not described in the proclamation schedule. The Execution Court considered E.A.No.42 of 2023 along with two other execution applications, **4** F.A.O.No.107 of 2023 namely, E.A.Nos.40 and 41 of 2023, which were filed respectively by the 2[nd] and 3[rd] judgment debtors, also for the same purpose. Two witnesses were examined on the side of the petitioners as PWs.1 and 2 and RW1 was examined on the side of the respondent. The Execution Court, after considering the entire evidence on record, came to the conclusion that no fraud or material irregularity in publishing the proclamation and conducting the sale could be established. The Execution Applications were accordingly dismissed. 5. The learned counsel appearing for the respondent at the outset contended that the appellant has no locus standi to file an application to set aside the sale and therefore this appeal is not maintainable. The contention of the learned counsel for the appellant in that regard is that for more reasons than one the appellant has locus standi to file a petition to set aside the sale. Indisputably, the property in question belonged to the 2[nd] judgment debtor, who is the daughter of the appellant. At the time of filing of the suit, the 2[nd] judgment debtor was a minor and she was represented by the appellant. The appellant would contend that although the 2[nd] judgment **5** F.A.O.No.107 of 2023 debtor attained majority during pendency of the suit, no steps to record her majority was taken by the respondent till the disposal of the suit and therefore the appellant has every authority to file a petition under Order XXI, Rule 90 of the Code. The other contention of the appellant is that she is a person, whose interests are affected by the sale and therefore she has the right to file a petition to set aside the sale. 6. If a plaintiff attains majority during the pendency of the suit, Rule 12 of Order XXXII of the Code and where a coplaintiff so attains majority, Rule 13 of Order XXXII insist on filing of an application to record his majority and to discharge the next friend. There is no such provision obligating the plaintiff to apply to the court for the discharge of the guardian of a minor defendant on his attaining his majority. In the light of sub-rule (5) of Rule 3 of Order XXXII of the Code, a guardian of a minor defendant, unless terminated, shall continue as such even during the execution proceedings in the suit in which he was appointed. Debors that, the minor defendant or his/her guardian could well apply to the court to record majority. It is contended that in this case, without recording **6** F.A.O.No.107 of 2023 that the minor defendant attained majority, the suit was proceeded with and a decree was passed. But, execution of the decree was not challenged by any of the judgment debtors on such a ground. In the execution proceedings, notice was given to all the judgment debtors. The 2[nd] judgment debtor had attained majority by that time. The property of the 2[nd] judgment debtor was attached and sold with notice to her. In the said fact situation, the appellant cannot contend that in the capacity of the guardian of the 2[nd] judgment debtor, she has locus standi to file a petition under Order 21, Rule 90 of the Code. The learned counsel appearing for the appellant placed reliance on the decisions in Femi Joseph v. Branch Manager, Federal Bank [2014 (2) KHC 772] and a few other decisions in order to fortify his contention that the appellant in the capacity of the guardian of the 2[nd] judgment debtor has locus standi to file the petition. We are of the view that none of the said decisions is of any avail to the appellants inasmuch as the E.P. was filed and the steps for the sale were taken with notice to the 2[nd] respondent, who attained majority before filing of the Execution Petition. **7** F.A.O.No.107 of 2023 7. An application for setting aside sale under Rule 90, Order XXI of the Code can be filed by the decree holder, the purchaser, any person entitled to share in a ratable distribution of assets or whose interests are affected by the sale. The contention of the appellant is that her interests are affected by the sale of the property of the 2[nd] judgment debtor and therefore she has the right to file an application to set aside the sale. From the averments in the petition and the materials on record, what emerges is that the appellant has been residing in the building in the property being the mother of the 2[nd] judgment debtor, who admittedly is the owner. Other than that, she has no right in the property either proprietary or possessory. In this respect the learned counsel appearing for the appellant places reliance on the decisions in Kuruvila v. Michael [2011 (2) KHC 34] and Poona Ram v. Moti Ram [AIR 2019 SC 813]. But, in our view, the law laid down in the said decisions relate to the claim by persons have atleast traces or right in the property, either proprietary or possessory. Hence, the law laid down in those decisions are not applicable to the facts of this case. **8** F.A.O.No.107 of 2023 8. In Moolchand and others v. Fatima Sultana Beegum and others [(1995) 6 SCC 742] the Apex Court held that the execution court has inherent power to oversee whether the sale conducted was proper. It was so held while considering the legality of a sale conducted by a Receiver. When a court auction takes place, the right to challenge the sale under Rule 90 is confined to the persons referred to in the said rule. The appellant was the 1[st] judgment debtor. When the execution petition was filed and steps for sale of the property of the 2[nd] judgment debtor were taken, notice was given to the appellant as well. Citing that, the learned counsel for the appellant contended that the respondent cannot reprobate now to contend that the appellant has no locus standi to file a petition to set aside the sale. We are unable to accept that contention also. Solely because notice as provided in Rule 66 of Order XXI of the Code was given, that does not enure right to a person to apply to set aside the sale, unless he is a person entitled as per Rule 90 to file such an application. Except that the appellant was residing in the building in the property in question, no other right, either proprietary or **9** F.A.O.No.107 of 2023 possessory, or atleast, a pecuniary right is affected by the sale. When the property sold in auction belongs to the 2[nd] judgment debtor and she herself filed E.A.No.40 of 2023 to set aside the sale, the appellant cannot claim that her interest in the property are affected and she has right to apply to set aside the sale. In that view of the matter, it can only be held that the appellant has no right to file a petition under Rule 90 of Order XXI of the Code in order to challenge the sale of the property of the 2[nd] judgment debtor. 9. A few other contentions are set forth by the appellant in order to question the sale, which are that the appellant did not obtain sanction to bid the property, the upset price was reduced in an improper way, the description of the property in the proclamation schedule was deceptive since the building was not mentioned in the proclamation schedule and that the prior mortgage in favour of the KSFE was not shown in the proclamation schedule. Those contentions were duly considered by the execution court and answered in the negative. We find no infirmity to those findings. In the petition filed by the appellant, who has no **10** F.A.O.No.107 of 2023 locus standi, such contentions do deserve further consideration also. Accordingly, the appeal is dismissed. No costs. Sd/- P.B. SURESH KUMAR, JUDGE Sd/P.G. AJITHKUMAR, JUDGE dkr **11** F.A.O.No.107 of 2023 ## **APPENDIX OF FAO 107/2023** ## **PETITIONER ANNEXURES** **ANNEXURE 1** **CERTIFIED COPY OF THE COMMISSION REPORT FILED BY ADV. JYOTISREE P CHAKYAR IN E.A.NO.360/2022 IN E.P.NO.29/2018 OF THE SUB COURT PATHANAMTHITTA DATED 5.12.2022**