T. Muraleedharan & C.R. Uma Devi v. Bank of India Calicut Main Branch & N.P. Jaifar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 24[TH] DAY OF AUGUST 2021 / 2ND BHADRA, 1943** **OP(C) NO. 1878 OF 2016** **AGAINST THE ORDERS IN E.A.NO.204/2016, E.A.NO.205/2016 AND** **E.A.NO.206/2016 IN E.A.NO.601/2009 IN E.P.NO.335/2001 IN** **O.S.NO.141/1999 ON THE FILE OF THE SUBORDINATE JUDGE OF KOZHIKODE PETITIONERS:** - **1 T. MURALEEDHARAN AGED 63 YEARS, S/O.KARTHYAYANI AMMA, PALATT HOUSE, BEPUR NORTH, NADUVATTOM AMSOM DESOM, KOZHIKODE TALUK.** ## **2 C.R.UMADEVI** **AGED 47 YEARS, W/O.MURALEEDHARAN, PALATT HOUSE, BEPUR NORTH, NADUVATTOM AMSOM DESOM, KOZHIKODE TALUK.** **BY ADVS.** **SRI.T.SETHUMADHAVAN (SR.) SMT.DEEPA NARAYANAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON** ## **RESPONDENTS:** - **1 BANK OF INDIA CALICUT MAIN BRANCH,NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 673001** - **2 N.P.JAIFAR** **S/O.MAMUKOYA, NINAM HOUSE, NADUVATTOM AMSOM DESOM,KOZHIKODE TALUK. 673001** ## **BY ADVS.** **SRI.J.HARIKUMAR, SC, BANK OF INDIA SRI.G.SREEKUMAR (CHELUR)** **OP(C) NO. 1878 OF 2016** **2** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C) NO. 1878 OF 2016** **3** ## **JUDGMENT** The petitioners are the judgment debtors in E.P.No.335 of 2001 in O.S. No.141 of 1999 on the files of the Additional Sub Court - I, Kozhikode. The suit filed by the 1[st] respondent Bank for realization of money was decreed and in the execution proceedings, the decree schedule property was purchased by the 2[nd] respondent, on 09.06.2009. Thereafter, the petitioners moved Ext.P2 application under Order 21 Rule 90 seeking to set aside the sale, alleging irregularity and fraud. It was alleged that the property was sold at a much lower price than its actual market value and that the decree could have been satisfied by selling only a portion of the property. 2. Earlier the petitioners had filed an Original Suit against one Rijesh, as O.S.No.282 of 2009 of the IInd Additional Sub Court, Kozhikode. That suit was filed seeking to set aside the sale deeds alleged to have been executed by the petitioners assigning the decree schedule property in favour of Rijesh. The suit was decreed and thereupon Rijesh **OP(C) NO. 1878 OF 2016** **4** filed appeal, which is pending consideration before this Court. While so, Rijesh moved a claim petition in E.P.No.335 of 2001 in O.S. No.141 of 1999. The Execution Court dismissed the claim petition on 21.08.2015 and confirmed the sale on the same day. Thereafter the execution petition was posted for effecting delivery. 3. According to the petitioners, when action was initiated for effecting delivery after dismissal of the claim petition filed by Rijesh, they made enquiries regarding the status of Ext.P2 application filed by them for setting aside the sale and thereupon, came to know that Ext.P2 application had been dismissed on 28.02.2013. Immediately, the petitioners filed Exts.P3, P4 and P5 applications for condonation of delay, restoration of Ext.P2 and stay of further proceedings in the Execution Petition. Those applications having been dismissed by Exts.P7, P8 and P9 orders, this Original Petition is filed. 4. Learned Senior Counsel appearing for the petitioners submitted that the reasoning adopted by the **OP(C) NO. 1878 OF 2016** **5** Execution Court is patently wrong and at any rate, Ext.P2 application ought to have been decided on merits. It is contended that, for the sole reason that the petitioners were pursuing O.S.No.282 of 2009 filed against Rijesh, the Execution Court should not have assumed that the petitioners were aware about the dismissal of Ext.P2 application. It is pointed out that the petitioners have filed I.A.No.453 of 2021 before the Execution Court under Section 47 CPC. Attention is drawn to the decision of the Hon’ble Supreme Court in **S.Mariyappa v. Siddappa** [(2005) 10 SCC 235] to contend that an application under Section 47 is maintainable, even after dismissal of an earlier application under Order 21 Rule 90 CPC. 5. Learned Counsel appearing for the auction purchaser submitted that absolutely no interference is warranted against the impugned order. It is pointed out that the inordinate delay of more than 1103 days in filing the application for restoration shows the callous manner in which the petitioners had contested the case. It is submitted **OP(C) NO. 1878 OF 2016** **6** that Order 21 Rule 64 does not have any application in the instant case. The decree schedule property was mortgaged with the bank and there is no provision for sale of the mortgaged property in parcels for realisation of the decree amount. It is contended that Section 5 of the Limitation Act has no application in execution proceedings and therefore, whatever be the delay, the Execution Court has no power to condone it. 6. Sri.J.Harikumar, learned counsel appearing for the 1[st] respondent Bank supported the contentions of the auction purchaser and submitted that the Execution Court should have dismissed the applications filed by the petitioners in limine, since the court is not empowered to condone the delay in execution proceedings. 7. Having heard the learned counsel, I find merit in the contention raised on behalf of the respondents that the court below was not called upon to consider the applications filed by the petitioners on merits, since Section 5 of the Limitation Act is not applicable to execution proceedings. Even though learned Senior Counsel contended that the **OP(C) NO. 1878 OF 2016** **7** application for restoration was submitted under Order 9 Rule 9 CPC and the Limitation Act would therefore apply, I am unable to accept the contention since an application under Order 9 Rule 9 is to be filed on the original side. Moreover, by filing of such an application in the execution proceedings the petitioners cannot be permitted to get the delay condoned, which is not otherwise possible in execution proceedings. For the aforementioned reasons, the Original Petition is dismissed. It is made clear that this order does not interdict the petitioners from agitating their application filed under Section 47 of CPC, if legally permissible. **Sd/V.G.ARUN JUDGE** scs **OP(C) NO. 1878 OF 2016** **8** ## **APPENDIX OF OP(C) 1878/2016** **PETITIONER EXHIBITS** **EXHIBIT P1. COPY OF THE JUDGMENT IN OS 282/09 DATED 27.09.14.** - **EXHIBIT P2. COPY OF THE AFFIDAVIT AND PETITION AS EA 601/2009 IN EP 335/01 IN OS 141/99 FILED BY THE PETITIONER.** - **EXHIBIT P3. COPY OF THE AFFIDAVIT AND PETITION AS EA 204/2016 IN EA 601/09 IN EP 335/01 IN OS 141/99 FILED BY THE PETITIONER.** - **EXHIBIT P4. COPY OF THE AFFIDAVIT AND PETITION AS EA 205/2016 IN EA 601/09 IN EP 335/01 IN OS 141/99 FILED BY THE PETITIONER.** - **EXHIBIT P5. COPY OF THE AFFIDAVIT AND PETITION AS EA 206/16 IN EA 601/2009 IN EP 335/01 IN OS 141/99 FILED BY THE PETITIONER.** - **EXHIBIT P6. COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT IN EA 165/16 IN EP 335/01 IN OS 141/99.** - **EXHIBIT P7. COPY OF THE ORDER IN IA 204/2016 IN EA 601/2009 IN EP 335/01 IN OS 141/99.** - **EXHIBIT P8. COPY OF THE ORDER IN EA 205/2016 IN EA 601/2009 IN EP 335/01 IN OS 141/99.** - **EXHIBIT P9. COPY OF THE ORDER IN EA 206/16 IN EA 601/2009 IN EP 335/01 IN OS 141/99.**