Radhamma v. Roshini, Bindu, Ismaeel Khan and Suhrabi W/o Gulabjan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY ,THE 13TH DAY OF DECEMBER 2018 / 22ND AGRAHAYANA, 1940** **FAO.No. 104 of 2010** **AGAINST THE ORDER IN E.A.NO.2179/2006 IN E.P.NO.753/1997 IN OS 1091/1986 of II ADDL.SUB COURT,THRISSUR** ## **APPELLANT:** **RADHAMMA, W/O. PANKAJAKSHAN,RESIDING AT KANJINGATTU VEEDU, VELLATT LANE,, THRISSUR. BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.ASHA BABU SMT.SARITHA DAVID** ## **RESPONDENTS:** |**1**|**ROSHINI, D/O LATE HARSHAN RESIDING AT**| |---|---| ||**MANAPPARAMBIL HOUSE, SHORNUR ROAD,, THRISSUR.**| |**2**|**BINDU D/O.LATE HARSHAN RESIDING AT**| ||**MANAPPARAMBIL HOUSE, SHORNUR ROAD,, THRISSUR.**| |**3**|**ISMAEEL KHAN S/O.BABURAJAN RESIDING**| ||**AT S.M.R.A. 10, MADAMBIKKATTIL LANE,, SAW MILLS ROAD,**| ||**KOORKKANCHERRY VILLAGE,, THRISSUR.**| |**4**|**SUHRABI WO.GULABJAN RESIDING AT**| ||**32/62, SITARAM MILL LANE, PUNKUNNAM,, THRISSUR.**| ||**BY ADV. SRI.ABRAHAM GEORGE JACOB – R1 & R2**| **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** FAO.No. 104 of 2010 2 ## **JUDGMENT** ## N.ANILKUMAR, J The appellant filed an application under Order XXI Rule 89 of the Code of Civil Procedure for setting aside the sale before the Court below. The Court below mainly dismissed the application on the ground that the sale amount was deposited much after the prescribed period and that the application under Order XXI Rule 89 is to be filed within a span of 2 months from the date of sale. 2. Feeling aggrieved by the order dated 10.07.2009 in E.A. No.2179/2006 in E.P.No.753/1997 in O.S.No.1091/1986 on the file of the IInd Additional Sub Judge of Thrissur, the appellant preferred this 1[st] appeal. 3. Late Harshan, the predecessor in interest of respondents 1 and 2 filed O.S.No.1091/1986 on the file of the Sub Court, Thrissur against the respondents 3 and 4 for recovery of an amount of Rs.30,000/-. In the said case FAO.No. 104 of 2010 3 respondents 3 and 4 remained _ex parte_ and consequently, the suit was decreed as prayed for in the plaint. In execution of the decree, the property was brought to sale. The decree holder himself bid the property in auction and after completing all the necessary formalities prescribed as per rules, sale certificate was issued in his favour. In the sale certificate, it is clearly stated that the property is comprised in Thrissur Village. 4. According to the appellant, respondents 3 and 4 sold an extent of 12.750 cents of property in Peringavu Village to one Girija.R.Menon who assigned the property to one Chakkunny and the said property was later on sold to one Thomas. It is the further case of the appellant that the remaining extent of 4.250 cents in Peringavu Village was assigned by respondents 3 and 4 to one Shanavas and both the properties are lying contiguous on ground. 5. When the Amin was deputed to deliver the property in execution of the decree in E.P. No.753/1997, it was reported that the property in question is actually situated in Peringavu Village and not in Thrissur Village as found in the decree or in the sale certificate issued consequent to the decree. Late FAO.No. 104 of 2010 4 Harshan, the predecessor in interest of respondents 1 and 2 filed an application to amend the plaint schedule, decree schedule and sale certificate presumably under Section 152 of Code of Civil Procedure. The Trial Court dismissed I.A.No.776/2002 as per order dated 06.04.2005. Late Harshan challenged the order before this Court as C.R.P.No.794/2005. In C.R.P.No.794/2005 in addition to respondents No.3 and 4, herein one Thomas, T.J, S/o Tharayil Ouseph was arrayed as respondent No.3. On a consideration of the entire aspects in detail this Court held in para 15 of the Order as follows:- _“ ….....Whatever be the decision in I.A.No.776/2002, it will not affect the right of the third respondent, if any. The right of the third respondent is not and cannot be decided in the petition filed before the court below or in this revision. As far as the third respondent is concerned he was not a party to the suit or decree and to that extent the order may not be binding on him. The question of the right claimed by the third respondent from the assignees of respondents I and 2 is not decided in this revision.........”_ 6. It is clear from the order that as far as the 3rd respondent in the C.R.P is concerned, he was not a party to the suit or a decree and the consequent sale proceedings. In fact, the question of the right claimed by the 3rd respondent from the assignees of respondents 1 and 2 has not been decided in the FAO.No. 104 of 2010 5 revision and it is left open to be decided. 7. It is the definite case of the appellant that the Thomas who was the 3rd respondent in C.R.P.No.794/2005 on the file of this Court had in the mean while assigned his property to one Joseph who later assigned the extent of 8.036 cents in Sy. No.120/1 Peringavu Village to the appellant by Sale Deed No.5519/2005. Likewise, an area of 2.670 cents in Sy No.120/1 of Peringavu Village lying adjacent to the property of Peringavu Village was assigned to the appellant by Sale Deed No.4495/2005. Learned Senior counsel for the appellant submitted that, an earlier suit O.S. No.2325/2001 filed by the 3rd respondent in C.R.P.No.794/2005 against the predecessor in interest of respondents 1 and 2 for permanent prohibitory injunction was decreed. 8. True, the appellant was not aware of the execution proceedings pending before the Court below. The appellant was not a party therein. On coming to know of the order dated 10.10.2006 in C.R.P. No.794/2005, according to the appellant, E.A.No.2179/2006 was filed within 60 days under Order XXI Rule 89 of the Code of Civil Procedure. FAO.No. 104 of 2010 6 9. As per Rule 355 of the Civil Rules of Practice, a person desirous of paying money into Court, shall file a lodgment schedule as in Form No.64. It is brought to our notice that on 6.11.2006 such a lodgment schedule as in form No.64 was filed before the Lower Court. The grievance of the appellant is that despite the lodgment schedule submitted, the Court below did not issue chellan for the deposit of the amount in accordance with Rules. Therefore, it is submitted that the appellant was constrained to deposit the entire decree amount with interest by way of fixed deposit in Dhanalakshmi Bank, Thrissur and produced the fixed deposit receipt in Court. 10. It is a fact that C.R.P.No.794/2005 was allowed by this Court substituting the name of the Village. The fact that the cause of action arose only after the disposal of the CRP No.794/2005 and that E.A.No.2179/2006 was filed within 60 days there from the appellant on whom the right have devolved on the date of application has not been considered by the Court below. FAO.No. 104 of 2010 7 11. It is clear that the predecessor in interest of respondents 1 and 2 obtained a decree for realization of an amount of Rs.30,000/- with interest and cost charged on and by the sale of the property, paid as advance, way back in 1986. The respondents 3 and 4 were set _ex parte_ and an _ex parte_ decree was passed. In execution of the decree, the decree holder himself bid in auction and purchased the property in his favour. It is brought out that, the 3[rd] respondent in C.R.P. No.794/2005 on the file of this Court was not a party to the proceedings and the appellant herein is claiming under the 3[rd] respondent in C.R.P.No.794/2005. This Court disposed of C.R.P.No.794/2005 without deciding the question of the right claimed by the 3[rd] respondent from the assignees of respondents 3 and 4. 12. The learned counsel appearing for the respondents 1 and 2 contended that the application to set aside the sale on deposit has to be made within the time limit prescribed by law and the deposit of requested amount in the Court is a condition precedent to entertain an application for setting aside the sale and as such the alleged Bank deposit made by the appellant is FAO.No. 104 of 2010 8 not in accordance with the scheme of Limitation Act. The dictum laid down by the Hon'ble Supreme Court in _**Annapurana v.Mallikarjun and Another [(2014) KHC 4249]**_ is relied on by the learned counsel for the respondent. The decision as such is not applicable in this case as the appellant on coming to know of the order dated 10.10.2006 in C.R.P.No.794/2005 filed E.A.No.2179/2006 within 60 days therefrom on 15.11.2006 under Order XXI Rule 89 of the Code of Civil Procedure. 13. It is also contended that when the law prescribes certain things to do in particularly in any manner it should be done in that manner and a different of method of performance is prohibited. According to the learned Counsel for the respondents, the application under Order XXI Rule 89 is not in accordance with the procedure established by law. 14. It is clear from the impugned order that the impugned order has been passed without considering the purport of the order in CRP No.794/2005. When there is such an order passed by this Court, the Court below is obliged to consider the same and pass orders in accordance with law. Instead, the Court below disallowed the claim made by the appellant on technical FAO.No. 104 of 2010 9 grounds. 15. In execution of the decree passed in EP No.753/1997, it has come to light that the property is in Peringavu Village and not in Thrissur Village as found in the decree. Consequently, respondents 1 and 2 filed an application to amend the decree. According to the learned Counsel for the respondents, amendment of the plaint relates back to the institution of the suit and as such the appellant is not justified in contending otherwise. Relying on the decision reported in _**Hanumanthappa.L.C. v. H.B. Shivakumar [2015 KHC 4569],**_ the learned counsel for the respondents contended that the doctrine of relation back is clearly applicable to the facts of the case for the reason that the Court which allowed the amendment did not express in specific terms that the amendment will come in to effect from a particular date. The dictum laid down in Hanumanthappa case is not applicable in this case as the appellant herein was not a party to the suit or execution proceedings and he filed the application set aside the the sale within 60 days from the date of order in CRP No.794/2005 before the Court below. It appears from the facts FAO.No. 104 of 2010 10 and circumstances of the case that an area of 16 cents of the property was brought to sale in execution of decree for amount of Rs.30,000/- and the appellant is claiming only a portion of the same. Under the circumstances, it is just and proper to give one more opportunity to the parties to let in evidence before the Court below and pass appropriate orders after taking into consideration of all the aspects involved in the matter. 16. The learned Senior has relied on a decision in ## _**Hussain Muhammed Yoosuf v. Joseph Kathanar Alexander**_ _**[1987 (2) KLT 401]**_ and contended that the Court below erroneously entered a finding that Section 52 of the Transferable Property Act is applicable in the instant case. The suit is only for recovery of money and as such the finding of lis pendens is unsustainable in law. 17. Judged by the above circumstances, we are of the considered view that, this is a fit case where the impugned order is liable to be set aside. In the result, the appeal is allowed. The impugned order is set aside. The Court below is directed to dispose of E.A. No.2179/2006 in EP No.753/1997 in O.S.No.1091/1986, FAO.No. 104 of 2010 11 afresh after giving the parties an opportunity to adduce evidence untrammeled by the findings and observations contained in this judgment. **Sd/-** **K.HARILAL** **JUDGE** **Sd/-** SAS/13/12/2018 //TRUE COPY// P.A.TO JUDGE **N.ANIL KUMAR JUDGE**