Rajesh and Sindhu v. V.H. Hashim, Sameena Beevi, and Aneesh K.A.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **WEDNESDAY, THE 15TH DAY OF NOVEMBER 2017/24TH KARTHIKA, 1939** ## **OP(C).No. 3193 of 2017 (O)** **--------------------------E.P.NO.170/2014 IN OS 310/2013 OF SUB COURT, KOTTAYAM** ## **--------------------------** **PETITIONERS:** - **-------------** **1. RAJESH, AGED 42 YEARS, S/O. RAMAKRISHNAN PILLA, DWARAKA, KUTTAMASSERY KARA, ALUVA EAST VILLAGE,** **ALUVA TALUK,NOW RESIDING AT METHALA HOUSE, THOTTAKKATTUKARA P.O, ALUVA.** **2. SINDHU, AGED 38 YEARS, W/O. RAJESH,DWARAKA, KUTTAMASSERY KARA, ALUVA EAST VILLAGE, ALUVA TALUK,NOW RESIDING AT METHALA HOUSE,** **THOTTAKKATTUKARA P.O, ALUVA.** ## **BY ADVS.SRI.V.K.SIDHIQUE SMT.SAJITHA SIDHIK** **RESPONDENTS :** **-----------------------** **1. V.H.HASHIM S/O. SAIDU MOHAMMED, VEDIPPURAKKAL HOUSE, MARIYATHURUTH KARA,AYMANAM VILLAGE, KOTTAYAM PIN - 686 015.** **2. SAMEENA BEEVI, W/O. V.H.HASHIM,VEDIPPURAKKAL HOUSE, MARIYATHURUTH KARA,AYMANAM VILLAGE, KOTTAYAM PIN - 686 015.** **OP(C).No. 3193 of 2017 (O)** ## **---------------------------------------** **3. ANEESH K.A,S/O. K.M ABDULKAHDER, KUNNERANKUNNEL HOUSE, NADAKKAL KARA, EARATTUPETTA VILLAGE, MEENACHIL, KOTTAYAM - 686 577.** **R1 & R2 BY ADVS. SRI.ALEX.M.SCARIA SRI.ZAKHIER HUZZAIN** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **bp** **OP(C).No. 3193 of 2017 (O)** ## **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** - **EXHIBIT P1: TRUE COPY OF ORDER DATED 15-09-2017 IN E.P NO:170/2014 IN O.S 310/2013 ON THE FILE OF SUB COURT, KOTTAYAM.** - **EXHIBIT P2: TRUE COPY OF I.A NO:1438/2017 IN O.S 310/2013 ON THE FILE OF SUB COURT, KOTTAYAM.** - **EXHIBIT P3: TRUE COPY OF I.A NO:1439/2017 IN O.S 310/2013 ON THE FILE OF SUB COURT, KOTTAYAM.** - **EXHIBIT P4: TRUE COPY OF E.A NO:530/2017 IN E.P NO: 170/2014 IN O.S 310/2013 ON THE FILE OF SUB COURT, KOTTAYAM.** - **EXHIBIT P5: TRUE COPY OF E.A NO:531/2017 IN E.P NO: 170/2014 IN O.S 310/2013 ON THE FILE OF SUB COURT, KOTTAYAM.** - **EXHIBIT P6: TRUE COPY PLAINT IN O.S 310/2013 ON THE FILE OF SUB COURT, KOTTAYAM.** - **EXHIBIT P7: TRUE COPY OF JUDGMENT DATED 04-07-13 IN O.S 310/2013 ON THE FILE OF SUB COURT, KOTTAYAM.** - **EXHIBIT P8: TRUE COPY OF THE DECREE DATED 04-07-13 IN O.S 310/2013 ON THE FILE OF SUB COURT, KOTTAYAM.** **RESPONDENT(S)' EXHIBITS : NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **bp** ## **ANIL K.NARENDRAN, J.** **-----------------------------------------------** O.P.(C)No.3193 of 2017 **-----------------------------------------------** Dated this the 15[th] day of November, 2017 ## **J U D G M E N T** The petitioners, who are judgment debtors 1 and 2 in E.P.No.170/2014 in O.S.No.310/2013 on the file of the Additional Sub Court, Kottayam, have filed this original petition under Article 227 of the Constitution of India, seeking an order to set aside Ext.P1 order dated 15.9.2017 of the said court, whereby the sale of the decree schedule property in E.P.No.170/2014 in O.S.No.310/2013 was ordered. The petitioners have also sought for an order to stay confirmation of sale of decree schedule property till the disposal of Exts.P2 and P3 applications, i.e., I.A.Nos.1438/2017 and 1439/2017, filed under Order IX Rule 13 of the Code of Civil Procedure, 1908, and Section 5 of the Limitation Act, 1963 respectively. They have also sought for an order directing the Sub Court to consider Exts.P2 and P3 applications within a time frame to be fixed by this Court. 2. On 6.11.2017, when this original petition came up for admission, this Court directed the Registry to get a report from the Additional Sub Court, Kottayam, as to the present status of O.P.(C)No.3193 of 2017 :-2-: I.A.Nos.1438/2017 and 1439/2017 in O.S.No.310/2013 and also the time limit required for its final disposal. Pursuant to the said order, a report dated 9.11.2017 has been received, wherein it has been stated that the petitioners, who are defendants 1 and 2 in O.S.No.310/2013, have filed I.A.No.1438/2017 for setting aside the ex parte decree dated 4.7.2014 and also I.A.No.1439/2017 for condonation of delay of 1133 days in filing the petition to set aside the ex parte decree. The said interlocutory applications filed on 13.9.2017 now stand posted to 28.11.2017 for objection. In the said report, it has also been stated that three months' time may be granted for final disposal of I.A.Nos.1438 and 1439 of 2017. 3. Heard the learned counsel for the petitioners/defendants 1 and 2 and also the learned counsel for respondents 1 and 2/ plaintiffs. Despite service of notice, none appeared for the 3[rd] respondent. 4. The sole issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P1 order dated 15.9.2017 of the court below in E.P.No.170/2014 in O.S.No.310/2013, whereby sale of the decree schedule property was ordered and the matter is listed for O.P.(C)No.3193 of 2017 :-3-: confirmation of sale to 16.11.2017. 5. Ext.P1 order is one passed by the execution court dated 15.9.2017. On a specific query made by this Court, the learned counsel for the petitioners would submit that the judgment debtors obtained certified copy of Ext.P1 order on 6.10.2017. However, they have chosen to challenge the said order by filing this original petition only on 3.11.2017. 6. The ex parte decree, which is sought to be set aside by filing Ext.P2 application, is one dated 4.7.2014. The averments in support of the affidavit in Ext.P2 application would show that, the petitioners herein had received notice from the execution court in E.P.No.170/2014. For reasons best known to the petitioners, they have chosen to file Exts.P2 and P3 applications before the Sub Court only on 13.9.2017, with a delay of 1133 days. 7. The challenge made in this original petition is mainly against Ext.P1 order dated 15.9.2017 of the Sub Court, in E.P.No.170/2014. Since the ex parte decree passed against the petitioners herein is still in force, the execution court cannot be found fault with in ordering sale of the decree schedule property. 8. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope O.P.(C)No.3193 of 2017 :-4-: and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 9. In **Sobhana Nair K.N. v. Shaji S.G.Nair (2016(1) KHC 1)** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the O.P.(C)No.3193 of 2017 :-5-: lower court or tribunal is in direct conflict with settled principle of law. 10. Viewed in the light of the law laid down in the decisions referred to supra, Ext.P1 order of the execution court which is not in conflict with any settled principle of law, warrants no interference under Article 227 of the Constitution of India. Therefore, the challenge made against Ext.P1 order fails. 11. From the report received from the Sub Court, Kottayam, it is seen that Exts.P2 and P3 applications now stand posted to **28.11.2017** for final disposal. In such circumstances, this original petition is disposed of by directing the Additional Sub Court, Kottayam, to dispose of Exts.P2 and P3 applications, as expeditiously as possible, at any rate within a time limit of 3 months' from the date of production of certified copy of this judgment. ## Sd/- **ANIL K.NARENDRAN JUDGE** ami/15.11.17 //True copy// P.A.to Judge