Valsamma Sebastian v. Sivadasan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **FRIDAY, THE 10TH DAY OF NOVEMBER 2017/19TH KARTHIKA, 1939** **OP(C).No. 327 of 2017 (O)** **-------------------------E.P.NO.123/2015 IN OS NO. 453/2011 OF SUB COURT, OTTAPPALAM -------------------** **PETITIONER :** **------------------** **VALSAMMA SEBASTIAN, AGED 53 YEARS, W/O.KONGAMALA SEBASTIAN, THRITHALA AMSOM, MATTAYA DESOM, PATTAMBI TALUK.** **BY ADVS.SRI.SAIBY JOSE KIDANGOOR SRI.BENNY ANTONY PAREL SMT.S.SIBHA SRI.MATHEWS RAJU** **RESPONDENT :** **--------------------** **SIVADASAN, AGED 55 YEARS, S/O.NECHIKKADAN KUNHIPPARAN, KUNNUMPURAM HOUSE, A R NAGAR AMSOM DESOM, THRIURANGADI TALUK. 676306** **BY ADV. SRI.K.B.ARUNKUMAR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **OP(C).No. 327 of 2017 (O) ------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS : ------------------------------------** **EXHIBIT P1:A TRUE COPY OF THE E.P.NO.123/2015 IN OS.NO.453/2011 OF SUB COURT, OTTAPALAM DATED 23/09/2015. EXHIBIT P2:A TRUE COPY OF THE OBJECTION PREFERRED BY THE PETITIONER IN E.P.NO.123/2015 IN OS.NO.453/2011 OF SUB COURT, OTTAPALAM 13/01/2016. EXHIBIT P3:A TRUE COPY OF AN ORDER IN E.P.NO.123/2015 IN OS.NO.453/2011 OF SUB COURT, OTTAPALAM DATED 05/07/2016 TO PROCLAIM AND SALE OF THE PLAINT SCHEDULE PROPERTY ON 08/08/2016. EXHIBIT P4:A TRUE COPY OF THE AUCTION DATED 08/08/2016 IN E.P.NO.123/2015 IN OS.NO.453/2011 OF SUB COURT, OTTAPALAM. EXHIBIT P5:COPY OF THE JUDGMENT IN OPC. 1910/2016. EXHIBIT P6:COPY OF THE AUCTION ADVERTISEMENT. RESPONDENT(S)' EXHIBITS : NIL.** **//TRUE COPY//** **P.A. TO JUDGE** ## **bp** ## **ANIL K.NARENDRAN, J.** ## **-----------------------------------------------** O.P.(C)No.327 of 2017 **-----------------------------------------------** Dated this the 10[th] day of November, 2017 ## **J U D G M E N T** The petitioner, who is the judgment debtor in E.P.No.123/2015 in O.S.No.453/2011 on the file of the Sub Court, Ottappalam, is before this Court in this original petition filed under Article 227 of the Constitution of India, seeking an order to set aside Ext.P6 sale notice whereby her property was ordered to be sold in public auction on 27.1.2017. 2. On 27.1.2017, when this original petition came up for admission, this Court admitted the matter on file and issued urgent notice by speed post to the respondent. This court has also granted an interim order staying all further proceedings pursuant to Ext.P6 sale notice for a period of one month. The said interim order was extended until further orders on 9.3.2017. 3. Heard the learned counsel for the petitioner/judgment debtor and also the learned counsel for the respondent/decree holder. 4. The sole issue that arises for consideration in this original petition is as to whether an interference is warranted on O.P.(C)No.327 of 2017 :-2-: Ext.P6 sale notice, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 5. As borne out from Ext.P5 judgment, the petitioner had earlier approached this Court in O.P.(C)No.1910/2016 challenging previous sale notice issued in E.P.No.123/2015 in O.S.No.453/2011. The said original petition was disposed of by Ext.P5 judgment dated 3.10.2016, whereby the petitioner was granted permission to clear the entire decree debt in five equal monthly installments. Paragraph 8 of the said judgment reads thus ; “8. It is true that while admitting the revision petition, this court has directed the petitioner to deposit Rs.1,00,000/towards the decree amount within two weeks, but admittedly that amount has not been deposited. However, the counsel for the petitioner submitted that, if seven months time is granted, she will be able to discharge the amount. As regards the time is concerned, the respondent has opposed the same, but left the same to the discretion of this court to fix the period during which the amount will have to be paid. Considering the circumstances that the case is of the year 2011 and no steps have been taken by the petitioner to set aside the exparte decree so far, in spite of the fact that such a mention was made in the objection filed during January 2016 and also considering the fact that she had not paid the amount in compliance with the interim order passed this court is not inclined to grant seven months time prayed for by the petitioner for avoiding the sale of the property. However considering the fact that the O.P.(C)No.327 of 2017 :-3-: petitioner is a lady, this court feels that some leniency can be shown and five months time can be granted to the petitioner to pay the amount. So the petitioner is granted five months time to pay the decree amount in five equal monthly installments. The first payment will have to start from 28.10.2016 and the remaining installments will have to be paid on 28th of every succeeding month and last installment will have to be paid on or before 03.03.2017. If the petitioner commits any default in payment of any of the installments, then court below is entitled to proceed with the sale of the property on the sale proclamation issued by the court below. The court below is directed to post the cases on the date on which the installment will have to be paid so as to monitor the payment as well and avoid further delay in prosecuting the case. If the amounts are paid, then court below is directed to postpone the sale accordingly till the time for payment granted by this court ” expires. (underline supplied) 6. On a specific query made by this Court, the learned counsel for the petitioner/judgment debtor fairly submitted that the petitioner could not make any remittance whatsoever in terms of Ext.P5 judgment. 7. Once the petitioner/judgment debtor has committed default in remitting any of the installments in terms of Ext.P5 judgment, the court below is entitled to proceed with the sale of the property in terms of the sale notice. By Ext.P5 judgment, the challenge made by the petitioner/judgment debtor against the previous sale notice issued in E.P.No.123/2015 in O.P.(C)No.327 of 2017 :-4-: O.S.No.453/2011 stands repelled. Therefore, the petitioner/ judgment debtor, who failed to comply with the directions contained in Ext.P5 judgment of this Court, cannot approach this Court again by filing original petition under Article 227 of the Constitution of India, once Ext.P6 sale notice is issued by the court below, in view of the default committed by her in remitting the monthly installments in terms of Ext.P5. 8. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope 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)** O.P.(C)No.327 of 2017 :-5-: **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 lower court or tribunal is in direct conflict with settled principle of law. 10. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, no interference is warranted on Ext.P6 sale notice, especially in view of the fact that the petitioner/judgment debtor has admittedly defaulted payment of installments in terms of Ext.P5 judgment of this Court. 11. The learned counsel for the petitioner/judgment debtor would submit that a breathing time may be granted to the petitioner for re-payment of the decree debt. Since the O.P.(C)No.327 of 2017 :-6-: petitioner/judgment debtor failed to comply with the specific directions contained in Ext.P5 judgment, this Court will not be justified in considering the aforesaid request made by the petitioner. In the result, this original petition fails and the same is accordingly dismissed. Sd/- **ANIL K.NARENDRAN JUDGE** ami/12.11.17 //True copy// P.A.to Judge