Rajendran v. Parameswaran

OP(C) NO. 1270 OF 2020 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944 OP(C) NO. 1270 OF 2020** **AGAINST THE ORDER/JUDGMENT IN EA 388/2019 AND EA 389/2019 IN EP 223/2010 IN OS 908/2014 OF PRINCIPAL SUB COURT,IRINJALAKUDA** ## **PETITIONER/S:** RAJENDRAN AGED 57 YEARS S/O. KOCHAMMU APPASHYAMMA, KOTTUVALA HOUSE, KARALAM VILLAGE, KARALAM P O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV N.L.BITTO ## **RESPONDENT/S:** PARAMESWARAN, AGED 73 YEARS, S/O. NARAYANAN NAMBYAR, KOTTUVALA HOUSE,KARALAM VILLAGE, KARALAM P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN - 680713. BY ADVS. SRI.RILGIN V.GEORGE JAMSHEED HAFIZ(K/382/2007) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON 19.07.2022 DELIVERED THE FOLLOWING: OP(C) NO. 1270 OF 2020 2 ## **JUDGMENT** The original petition is filed assailing the order in E.A.No.389/2019 (Ext.P7) and E.A.No.388/2019 (Ext.P8) filed in E.P.No.223/2010 in O.S.No.908/2004 of the Court of Principal Munsiff, Irinjalakuda. The concise case of the petitioner, relevant for the determination of the original petition, is that, he is the judgment debtor in the above execution petition filed by the respondent. The Execution Court found that only 5 cents of property is sufficient to satisfy the decree as per Ext.P2. The property is a commercial one, but it was sold for Rs.5,00,000/-. Hence, the petitioner filed Ext.P3 application to set aside the sale. There was another litigation between the petitioner and the wife of the decree holder before the same Court, wherein the said property was sold in auction. The petitioner had obtained a valuation report from a Chartered Engineer OP(C) NO. 1270 OF 2020 3 to prove that the property was sold for a lesser amount. The sale was challenged in CMA No.61/2015 and the appellate Court by Ext.P4 judgment had set aside the sale. The petitioner produced the above document before the Execution Court to prove the valuation of the property. Then the petitioner filed an application to reopen the evidence and re-call the Chartered Engineer to prove the market value of the property. Exts.P5 and P6 are the applications to re-open the evidence and re-call the witness. However, the Court below without adverting to the contentions raised in Exts.P5 and P6, by the impugned Exts.P7 and P8 orders dismissed the applications. Exts.P7 and P8 are erroneous and wrong. Hence, the original petition. 2. Heard; Sri.Bitto N.L., the learned counsel appearing for the petitioner and Sri.Jamshed Hafiz, the learned counsel appearing for the respondent. OP(C) NO. 1270 OF 2020 4 3. Sri.Bitto N.L. argued that the Court below has gone wrong in dismissing Exts.P5 and P6 applications which were filed for the purpose of substantiating the petitioner's contention regarding the material irregularity in the sale in Ext.P3 application. 4. Sri.Jamshed Hafiz, the learned counsel appearing for the respondent countered the above submission contending that in view of the statutory bar under Order XXI Rule 93 of the Code of Civil Procedure, the Execution Court cannot look into any matter pertaining to the fixation of the upset price of the property once the stage is over. He relied on the decision of this Court in **Antony v. Catholic Syrian Bank** [1994 (2) KLT 341]. He argued that the attempt of the petitioner is to unsettle the fixation of upset price by the Court below, by filing Ext.P3 application, which is untenable. OP(C) NO. 1270 OF 2020 5 5. The question that arises for consideration in this original petition is whether there is any irregularity or impropriety in Exts.P7 and P8 orders. 6. The respondent has filed Ext.P1 execution petition to execute Award No.20/2010 passed by the Lok Adalath, Thrissur. Pursuant to Ext.P1, the Court below has proclaimed the sale as per Ext.P2. The petitioner has filed Ext.P3 application to set aside the sale. Thereafter, he filed Ext.P5 application to reopen the evidence for the purpose of proving the valuation of the property sold by examining an Expert who issued a valuation certificate and an application to summon the Expert to prove the valuation. 7. In **Antony vs Catholic Syrian Bank** (supra) this Court has in paragraph 15 held thus: 15. Rule 90(3) of O.21 contains yet another interdict against setting aside a court sale. It is in the OP(C) NO. 1270 OF 2020 6 following language: “No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up”. This provision was brought in the Code only in 1976, and the object is to make the judgment debtor to be more circumspect and to inform the court, right in time, of his objections. If he omits to do so without satisfactory cause, he cannot be heard to say on such objections subsequently. In Desk Bandhu Gupta v. N.L.Anand & Rajinder Sing ((1994) 1 SCC 131) Supreme Court has observed that R.90(3) is like a “caveat emptor” that the judgment debtor be vigilant and watchful to vindicate pre-sale illegalities or material irregularities. “He should not stand by to prograstinate the execution proceedings, if he so does, R.90(3) forewarns him that he pays penalty for obduracy and contumacy”. 8. Therefore, the Execution Court cannot go back to matters pertaining to the fixation of upset price while deciding an application to set aside the sale in view of the statutory bar under Order XXI Rule 93. Hence, if at all the petitioner seeks to reopen the evidence to summon a witness, the same can only be done for the OP(C) NO. 1270 OF 2020 7 limited purpose of substantiating Ext.P3 application, to set aside the sale as provided under Order XXI Rule 90 of the Code and not for matters falling within the purview of Order XXI Rule 66 of the Code. 9. Thus, I am of the opinion that the Court below shall permit the petitioner to let in evidence only for the above said purpose and nothing more and nothing less. In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, the original petition is disposed of as follows: 1. I set aside Exts.P7 and P8 orders and allow Exts.P5 and P6 applications for the sole purpose for the petitioner to substantiate Ext.P3 application filed under Order XXI Rule 90 of the Code. 2. Both parties would be at liberty to raise their OP(C) NO. 1270 OF 2020 **==> picture [7 x 9] intentionally omitted <==** respective contentions before the Court below at the time of hearing. 3. As the E.P. is of the year 2010, the Court below shall make every endevour to dispose of E.P.No.223/2010, in accordance with law, as expeditiously as possible, at any rate on or before 31.10.2022. sd/- **C.S.DIAS, JUDGE** rkc/15.07.22 OP(C) NO. 1270 OF 2020 9 ## **APPENDIX OF OP(C) 1270/2020** PETITIONER'S EXHIBITS EXHIBIT P1 A TRUE COPY OF EXECUTION PETITION IN EP 223 OF 2010 IN OS 908 OF 2004 OF THE PRL. SUB COURT, IRINJALAKUDA DATED 09.09.2010. EXHIBIT P2 A TRUE COPY OF THE PROCLAMATION IN EP 223 OF 2010 IN OS 908 O F2004 BEFORE THE PRL. SUB COURT, IRINJALAKUDA, DATED 15.02.2017. EXHIBIT P3 A TRUE COPY OF EA 309 OF 2017 IN EP 223 OF 2010 IN OS 908 OF 2004 BEFORE THE PRL. SUB COURT IRINJALAKUDA DATED 04.04.2017. EXHIBIT P4 A TRUE COPY OF THE JUDGMENT IN CMA 61 OF 2015 OF THE ADDL. DISTRICT SUB COURT IRINJALAKUDA DATED 7.11.2016. EXHIBIT P5 A TRUE COPY OF THE PETITION TO REOPEN EVIDENCE EA 389 OF 2019 IN EP 223 OF 2010 OS 908 OF 2004 OF THE PRL. SUB COURT, IRINJALAKUDA DATED 16/07.2019. EXHIBIT P6 A TRUE COPY OF THE PETITION TO RECALL WITNESS EA 388 OF 2019 IN EP 223 OF 2010 IN OS 908 OF 2004 PRL.SUB COURT, IRINJALAKUDA DATED 16.07.2019. EXHIBIT P7 A TRUE COPY OF THE ORDER IN EA 389 OF 2019 IN EP 223 OF 2010 IN OS.908 OF 2004 OF THE PRL.SUB COURT, IRINJALAKUDA TO REOPEN EVIDENCE DATED 24.01.2020. EXHIBIT P8 A TRUE COPY OF THE ORDER IN EA 388 OF 2019 IN EP 223 OF 2010 IN OS 908 OF 2004 OF THE PRL.SUB COURT IRINJALAKUDA TO RECALL WITNESSES DATED 24.01.2020.