Shaji Joseph v. I.T. Thankachan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939** **OP(C).No. 12 of 2018** **-------------------E.A. NO. 450/2017 IN EP 4/2014 IN OS NO. 378/2011 OF 1ST ADDITIONAL SUB COURT, ERNAKULAM** **----------** **PETITIONER : ----------** **SHAJI JOSEPH, AGEDS 38 YEARS, S/O. JOSEPH, ARACKAL HOUSE, KULAYETTIKKARA DESOM, KULAYETTIKKARA P.O, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN-682 315.** **BY ADV.SRI.SHAJI THANKAPPAN** **RESPONDENT : ----------** **I.T.THANKACHAN, AGED 42 YEARS, S/O. THOMAS, INCHIKALAYIL HOUSE, KEECHERY DESOM, KEECHERY VILLAGE, KANAYANNUR TALUK, PIN-682 315, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, I.T. SABU AGED 51 YEARS, S/O. THOMAS, INCHIKALAYIL HOUSE, KEECHERY DESOM, KEECHERY VILLAGE, KANAYANNUR TALUK, PIN-682 315** **BY ADVS. SRI.VARGHESE C.KURIAKOSE** **SRI.P.V.VARGHESE (KANJIRAMATTOM)** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp 26/2/2018** **OP(C).No. 12 of 2018 (O) ------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** |**EXHIBIT P1**|**A TRUE PHOTO COPY OF THE DECREE IN O.S. 378/2011 OF**| |---|---| ||**1ST ADDL. SUB COURT, ERNAKULAM.**| |**EXHIBIT P2**|**A TRUE PHOTO COPY OF THE EXECUTION PETITION E.P.**| ||**4/2014 IN O.S.378/2011 OF 1ST ADDL. SUB COURT,**| ||**ERNAKULAM.**| |**EXHIBIT P3**|**A TRUE PHOTOCOPY OF THE ORDER DATED 03.03.2016 IN**| ||**E.P. NO. 4/2014 IN O.S. NO. 378/2011 ON THE FILE OF**| ||**FIRST ADDITIONAL SUB COURT ERNAKULAM.**| |**EXHIBIT P4**|**A TRUE PHOTOCOPY OF THE JUDGMENT, DATED**| ||**13.6.2016 IN O.P(C) 1127/2016 OF THIS HON'BLE COURT.**| |**EXHIBIT P5**|**A TRUE PHOTO COPY OF THE ORDER DATED 25.8.2016**| ||**PASSED IN E.P. NO. 4/2014 IN O.S. NO. 378/2011.**| |**EXHIBIT P6**|**A TRUE PHOTO COPY OF THE COMMON JUDGMENT IN**| ||**O.P. NO. 3119/2016 OF THIS HON'BLE COURT.**| |**EXHIBIT P7**|**A TRUE PHOTO COPY OF THE REVISED DRAFT SALE**| ||**PROCLAMATION.**| |**EXHIBIT P8**|**A TRUE PHOTO COPY OF THE REPORT OF THE AMIN.**| |**EXHIBIT P9**|**A TRUE PHOTO COPY OF THE E.A. NO. 450/2017 IN E.P.**| ||**NO. 4/2014 IN O.S. NO. 378/2011 OF 1ST ADDITIONAL SUB**| ||**COURT, ERNAKULAM.**| |**EXHIBIT P10**|**A TRUE PHOTOCOPY OF THE COUNTER AFFIDVIT IN E.A.**| ||**NO. 450/2017**| |**EXHIBIT P11**|**A TRUE PHOTOCOPY OF THE PROOF AFFIDAVIT FILED**| ||**BY THE PETITIONER IN E.A 450/2017.**| |**EXHIBIT P12**|**A TRUE PHOTO COPY OF THE VALUATION, CERTIFICATE**| ||**OF THE BUILDING .**| |**EXHIBIT P13**|**CERTIFIED COPY OF THE ORDER IN E.A. NO. 450/2017 IN**| ||**E.A.450/2017 IN E.P. 4/2014 IN O.S. NO. 378/2011 ON THE**| ||**FILE OF 1ST ADDL. SUB COURT, ERNAKULA.**| |**RESPONDENT'S**|**EXHIBITS :**| |**---------------------**|| |**EXT.R1(a):**|**COPY OF THE SALE CERTIFICATE.**| **OP(C).No. 12 of 2018 (O) ------------------------** |**EXT.R1(b):**|**COPY OF THE ENCUMBRANCE CERTIFICATE**| |---|---| |**EXT.R1(c):**|**COPY OF THE APPLICATION FILED BY THE RESPONDENT UNDER**| ||**ORDER 21 RULE 95 SEEKING TO GENT DELIVERY.**| **//TRUE COPY// P.A. TO JUDGE** **bp 26/2/2018** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## O.P.(C) No.12 of 2018 ----------------------------------------- ## Dated this the 14[th] day of February, 2018 ## _**JUDGMENT**_ The prayers in this Original Petition (Civil) filed under the enabling provisions contained in Article 227 of the Constitution of India are as follows : - _“(i) Call for the records leading to Exhibit-P13 order._ - _(ii) set aside Exhibit-P13 order dated 31.8.2017 passed in E.A.No.450/2017 in E.P.No.4/2014 in O.S.No.378/2011 on the file of I Additional Sub Court, Ernakulam, in the interest of justice._ - _(iii) Pass such other orders as deem fit and proper in the facts and circumstances of the case.”_ 2. Heard Sri.Shaji Thankappan, learned counsel appearing for the petitioner/judgment debtor and Sri.Varghese C. Kuriakose, learned counsel appearing for the respondent/decree holder. 3. The petitioner herein is the judgment debtor in E.P.No.4 of 2014 in O.S.No.378 of 2011 on the file of the I Additional Sub Court, Ernakulam, and the respondent herein is the decree holder. Exhibit-P1 decree dated 20.12.2012 has been rendered by the court of I Additional Sub Court, Ernakulam, in O.S.No.378 of 2011 on the basis of a compromise arrived at between the parties. As per Exhibit-P1 decree : **:2::** O.P.(C) No.12/18 dated 20.12.2012, the decretal amount was to be paid by the petitioner within one year from the date of decree. Since payments were not forthcoming from the judgment debtor, the respondent/decree holder was constrained to file Exhibit-P2 E.P.No.4 of 2014 in the above O.S. to execute the decree. Earlier the property was notified for sale and at that stage there was an error in the schedule and the said sale proceedings was then set aside as per Exhibit-P4 judgment dated 13.6.2016 rendered by this Court in O.P.(C) No.1127 of 2016. Later the property was again notified for sale. This time the execution court had committed a mistake and it was ordered that a zigzag portion of the property without the building would be sufficient to satisfy the decretal amount. The respondent/decree holder had challenged the same by filing O.P. (C) No.2325 of 2016 before this Court. The petitioner/judgment debtor had also challenged the sale proceedings by filing O.P.(C) No.3119 of 2016. This resulted in Exhibit-P6 common judgment dated 13.2.2017 rendered by this Court disposing of O.P.(C) No.2325 of 2016 as well as O.P.(C) 3119 of 2016 and it was held in paragraph 2 thereof as follows : _“Having gone through the order, I do not find any infirmity in the order impugned. Regarding the valuation of the property, the valuation was done by a competent person. With regard to the claim of the decree holder, the sale of a portion of the property is not sufficient to satisfy the decree amount, this Court is of the view that if the court below finds that there are no bidders for the property now earmarked for sale it is open for the court below to auction the entire property for sale. The petitioner now submits that he is not taking part in the auction to the modified portion of the extent applicable to the property. However, he may be given liberty to take part in the auction_ O.P.(C) No.12/18 : **:3::** _when the entire property is put in auction. This submission is recorded. The court below shall complete the entire exercise before summer holidays.”_ 4. It is pursuant to Exhibit-P6 judgment rendered by this Court that the property was again notified for sale with a reduced extent. It is not in dispute that even then there were no bidders and later in tune with Exhibit-P6 judgment proclamation was again made for the full extent including the building. The decree holder had also secured leave under Rule 72 of Order XXI to participate in the bid and accordingly, he had participated and had purchased the property for the amount of Rs.22,64,100/-. According to the respondent, the amount payable under the decree has been adjusted and the balance has deposited. Thereafter, the petitioner herein has filed Exhibit-P9 E.A.No.450 of 2017 seeking to set aside the sale on the ground of material irregularity. The main objections raised by the petitioner/judgment debtor in Exhibit-P9 E.A. are contained in paragraphs-3 and 4 thereof, which reads as follows : _“3. Thereafter the decree holder filed a revised draft sale proclamation dated 18.3.2017 in the above case. The revised draft sale proclamation is as follows : 1.60 lakhs per cent (16 lakhs as fixed by the court ) for the land with building no.9/287 (New No.9/95C) of Amballur Grama Panchayath having an area of 650 sq. ft. which has been value at R.6.64 lakhs. So the total upset amount for the land and building together comes to Rs.22.64 lakhs. However, as per the objection of the judgment debtor, Rs.4 lakhs per cent amounting to Rs.40+6.64 which is ordered to be incorporated. 4. There are two values shown in the draft sale proclamation, i.e., Rs.22.64 lakhs and Rs.40 + 6.64 lakhs, as per the order of this Hon'ble Court and that order was confirmed by the Hon'ble High Court. Sale in the above case_ : **:4::** O.P.(C) No.12/18 _was conducted on 10.4.2017. The decree holder bid the auction. The sale was reported to the court on 11.4.2017. It is reported that the decree holder bid the auction for an amount of Rs.22.64 lakhs. If there are two values shown in the sale proclamation the property must be sold for higher amount. There is material irregularity in the sale of the property in this case. The sale of the property ought to have been for an amount of Rs.46.64 lakhs. Due to the sale of the property in a lower price substantial injury and loss happened to me.”_ Therefore, from a reading of paragraphs 3 and 4 of Exhibit-P9 E.A., more particularly in paragraph-4 thereof, it can be seen that the sheet anchor of the case of the petitioner is that the sale should have been only for an amount of Rs.46.64 lakhs, which is the higher amount shown in the sale proclamation and not for the lower amount of Rs.22.64 lakhs. In short the main contention urged by the petitioner/ judgment debtor is to the effect that the sale of the property for the amount which is lower than the higher amount of Rs.46.64 lakhs would by itself constitute a material irregularity, so as to warrant this Court’s interference as envisaged in Rule 90 Order XXI of C.P.C. It is not in dispute that the petitioner has not raised any other grounds to make out a case of material irregularity as conceived in Rule 90 of Order XXI C.P.C except the one as referred to in paragraph-4 of Exhibit-P9 E.A. 5. It has also been held by this Court in the judgment in _**Mottayatt Karunakaran v. A.V.Narayanan**_ reported in _2007 KHC 3453 = 2007(1) KLT SN 24_ in paragraph- 4 thereof as follows : _“4. On hearing learned counsel appearing for petitioner, it is clear that the question whether the entire property was necessarily to be sold as provided under R.64 of_ : **:5::** O.P.(C) No.12/18 _O.21, was considered by the executing court. Learned Musiff found that the entire property is to be sold and sale of part of the attached property is insufficient. In exercise of the extraordinary jurisdiction of this court are under Article 227 of the Constitution of India, I do not find that any interference is called for on that finding. But there is force in the arguments of the learned counsel appearing for petitioner that learned Munsiff has not properly considered the value of the property claimed by the petitioner in the light of provisions of R.66 of O.21 of Code of Civil Procedure. Second proviso to Sub R.2 of R.66 of O.21 of the code, mandates that when judgment debtor contends that value of the property alleged by decree holder is too low, it is not the duty of the executing court to determine the value of the attached property sought to be sold. But it mandates that executing court is bound to show the value claimed by the judgment debtor in sale papers along with the value shown by the decree holder and proclaim sale only thereafter. The sale proclamation shows that upset price done was not fixed as provided under second proviso to Sub R.2 as it is not warranted. But executing court must show the value obtained by judgment debtor also. The executing court is therefore directed to show the value of the property, claimed by petitioner also in the objection to the draft sale papers and only thereafter proceed with the sale of the property after proclaiming the sale in accordance with law. Petition is disposed accordingly.”_ ## Order XXI Rule 66 of C.P.C. provides as follows : _“66. Proclamation of sales by public auction : (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause proclamation of the intended sale to be made in the language of such court._ _(2) Such proclamation shall be drawn up after notice to the decree holder and the judgment debtor and shall state the time and place of sale, and specify as fairly and accurately as possible - (a) the property to be sold or, where a part of the property would be sufficient to satisfy the decree, such part ;_ _(b) the revenue assessed upon the estate or part of the state, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government ;_ _(c) any incumbrance to which the property is liable ; (d) the amount for the recovery of which the sale is ordered ;_ _and_ _(e) every other thing which the court considers material for a purchaser to know in order to judge of the nature and value of the property :_ _Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment debtor by means of an order under Rule 54, it shall not be necessary to give notice under this rule to the judgment debtor unless the court otherwise directs :_ : **:6::** O.P.(C) No.12/18 _Provided further that nothing in this rule shall be construed as requiring the court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given, by either or both of the parties._ _(3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner herein before prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation._ _(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto. ”_ ## Rule 90 of Order XXI C.P.C. provides as follows : _“_ _**90. Application to set aside sale on ground of irregularity or fraud** : (1) Where any immovable property has been sold in execution of a decree, the decree holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it._ _(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud._ _(3) 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. Explanation :- The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.”_ It is stipulated in the second proviso to Rule 66 (2) of Order XXI that nothing in that Rule shall be construed as requiring the Court to enter into proclamation of sale in sole estimate of the value of the property, but the proclamation shall include the estimate, in many even by either or both of the parties. Therefore, it is mandatory that the sale proclamation should include the value as suggested by the judgment debtor in the sale proclamation and failure to include such a value as : **:7::** O.P.(C) No.12/18 suggested by the judgment debtor would constitute illegality inasmuch as violation of the second proviso to Rule 66(2) of Order XXI C.P.C. It is not in dispute that the value of Rs.40+Rs.6.64 lakhs as suggested by the judgment debtor has been duly shown in the sale proclamation. The upset price as fixed by the court (Rs.22.64 lakhs) has also been duly shown in the sale proclamation. Therefore, the mandatory requirement of the second proviso to Rule 66 of Order XXI C.P.C. has been fulfilled in the facts and circumstances of this case. The contention of the petitioner that merely because the sale has been effected for the lower value of Rs.22.64 lakhs (upset price) and not for the higher value of Rs.40+6.64 lakhs as suggested by the judgment debtor would constitute a material irregularity as conceived in Rule 90 of Order XXI C.P.C. is bereft of any merit. The petitioner has not pleaded and proved any material irregularity of this impugned sale as contemplated in Rule 90 of Order XXI C.P.C. This Court had directed the Registry to get a report from the execution court concerned as to whether the sale covered by E.P.No.4 of 2014 in O.S.No.378 of 2011 has already been confirmed as envisaged in Order XXI Rule 92 of the C.P.C. The court below concerned (Sub Court, Ernakulam), has now furnished a report dated 23.1.2018 to the Registry of this Court, wherein it has been stated that the sale in E.P.No.4 of 2014 in O.S.No.378 of 2011 on the file of the I Additional Sub Court, Ernakulam, was confirmed under Order XXI Rule : **:8::** O.P.(C) No.12/18 92 of C.P.C. and that the sale certificate was duly issued on 19.12.2017. The respondent has also produced the sale certificate dated 19.12.2017 as Annexure-R1(a). A reading of Exhibit-P9 E.A., more particularly paragraphs 3 and 4 would disclose that the petitioner has not pleaded therein any material irregularity as contemplated in Rule 90 of Order XXI of C.P.C. Hence, the present objection raised by the petitioner is bereft of any merit and the Original Petition fails and the same is accordingly dismissed. **ALEXANDER THOMAS JUDGE** csl O.P.(C) No.12/18 : **:9::** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## O.P.(C) No.12 of 2018 ----------------------------------------Dated this the 8[th] day of January, 2018 ## _**O R D E R**_ Admit. 2. Issue notice to the respondent by speed post, returnable with two weeks. The petitioner will also serve notice on the respondent through the Advocate who appeared for that party before the court below concerned and file memo evidencing service of such notice. 3. Pending consideration of this Original Petition (Civil), it is ordered in the interest of justice that confirmation of the sale covered by E.P.No.4 of 2014 in O.S.No.378 of 2011 on the file of the court of the I Additional Sub Judge, Ernakulam, shall be kept in abeyance in case the sale has not so far been confirmed. This order will be in force for a period of one month. 4. The Registry to immediately get a report from the court of the I Additional Sub Judge, Ernakulam, as to whether the sale covered by E.P.No.4 of 2014 in O.S.No.378 of 2011 has already been confirmed as envisaged in Order 21 Rule 92 of the C.P.C. The report in that regard to be obtained within ten days’ time. O.P.(C) No.12/18 : **:10::** List on 25.1.2018. **ALEXANDER THOMAS JUDGE** csl Hand over copy