Viswanathan A.A. v. Sudarsan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933** **OP(C).No. 572 of 2010(O)** **-----------------------OS.97/2002 of MUNSIFF'S COURT, CHITTUR** **....................** ## **PETITIONER/PETITIONER/JD NO.1/DEFENDANT NO.1:** **-------------------------------------------------------------------------------VISWANATHAN A.A., S/O.APPU MANNADIAR, PANDARAPADOM, PALLASSENA POST, PALAKKAD DISTRICT, NOW RESIDING AT VARIETH KALAM, KARIPPODE POST, PUDUNAGARAM VIA., PALAKKAD DISTRICT.** **BY ADVS. SRI.SAJAN VARGHEESE K., SRI.LIJU. M.P.** **RESPONDENT(S): RESPONDENTS/AUCTION PURCHASER,DECREE HOLDER & JDS NO.2 & 3/NON-PARTY,PLAINTIF & DEFENDANTS NO. 2 & 3:** **---------------------------------------------------------------------** ## **1. SUDARSAN,** **S/O.C.R.CHAMIAPPA MANNADIAR, CHILAMPATH HOUSE, KARIPPODE POST, PUDUNAGARAM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN-678 503.** ## **2. SOUTH INDIAN BANK LTD.,** **PALLASSENA BRANCH, PALLASSENA P.O., PALAKKAD DISTRICT, REP. BY ITS MANAGER, PIN-678 505.** ## **3. MOHANAN,** **AANIYAPPALAM HOUSE, PANDARAPADOM, PALASSENA P.O., PALAKKAD DISTRICT, PIN-678 505, NOW RESIDING AT PERIKKATTE HOUSE, KOTTAPPURAM, THRISSUR-4.** ## **4. KAILASANATHAN,** **S/O.NARAYANAN, KANNANKODE, KARIPPODE POST, CHITTUR TALUK, PALAKKAD DISTRICT - 678 503.** **R1 BY ADV. SRI.K.P.BALAGOPAL R2 BY ADVS. SRI.GEORGE VARGHESE,SC,SOUTH INDIAN BANK, SRI.K.K.JOHN.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **OPC.NO.572/2010 O** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF EA.NO.290/2010 IN EP.NO.186/2008 IN O.S.97/2002 ON THE FILE OF MUNSIFF'S COURT, CHITTUR.** - **P2: COPY OF THE OBJECTION FILED IN EXT.P1 BY THE RESPONDENT NO.1.** - **P3: COPY OF THE OBJECTION FILED IN EXT.P1 BY THE RESPONDENT NO.2.** - **P4: COPY OF THE ORDER DTD. 07/10/2010 PASSED IN EA NO.290/2010 IN EA 291/2010, EA NO.317/2010 IN E.A.NO.25/2010 IN EP.NO.186/2008 IN O.S.NO.97/2002 ON THE FILE OF MUNSIFF'S COURT, CHITTUR.** ## **RESPONDENT'S EXHIBITS: N I L** ## **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C) No.572 of 2010 -------------------------------------Dated this the 3[rd] day of August, 2011.** ## **JUDGMENT** It is often said that the path of execution is not an easy going highway and provides no short cuts to the destination ..............difficulties of a litigant in India begin when he has obtained a decree (see **Sm.Anita v. Birendra Chandra – AIR 1962 Cal. 88 at paragraph 27** ). The same appears to be the position in this proceeding as well. Second respondent obtained a decree for recovery of money (probably without much difficulty) against petitioner and respondents 3 and 4 and in execution brought the property of petitioner and the third respondent for sale. The properties were sold on 25.05.2009, confirmed on 07.09.2009 and the sale certificate was also issued to the auction purchaser (first respondent) on 30.10.2009. In June, 2010 petitioner/first judgment debtor filed E.A.No.290 of 2010 in the court of learned Munsiff, Chittur (in O.S.No.97 of 2002) under Sections 47 and 151 of the Code of Civil Procedure (for short, “the Code”) to set aside sale of item Nos.1 and 2 of properties (in the proclamation schedule) on various grounds. He stated that though he got notice of E.P.No.186 of 2008 on account of oldness and illness he could not appear in the executing court and take part in the proceeding and hence he happened to be set exparte. He learnt about sale of his properties only when he got notice **OP(C) No.572/2010** 2 on E.A.No.25 of 2010 filed by the first respondent - auction purchaser under Rule 95 of Order 21 of the Code. Thereon he made enquiry and learnt about the sale. That provoked him to file E.A.No.290 of 2010. 2. Application was opposed by respondents 1 and 2 who contended that petitioner remained exparte in the proceeding and was aware of the sale proceedings. Executing court upheld the contention of respondents 1 and 2 and dismissed the application as per Ext.P4, order dated 7.10.2010 which is under challenge in this petition. 3. Learned counsel for petitioner has contended that the sale conducted by the executing court with respect to item Nos.1 and 2 of proclamation schedule (belonging to the petitioner) is null and void in that the mandatory requirements of Rule 66(2) of Order 21 of the Code was not complied – no notice of proclamation was given to the petitioner as provided under the said provision and that affected very jurisdiction of the executing court to sell item Nos.1 and 2 of the proclamation schedule. Learned counsel has placed reliance on the decisions in **Desh Bandhu Gupta v. N.L.Anand & Rajinder Singh [(1994) 1 SCC 131], Thomas Joseph v. Catholic Syrian Bank [1998 (1) KLT 986]** and **A.G.M. Constructions (P) Ltd. v. Shibu Kumar [2010 (4) KLT 189]** . **OP(C) No.572/2010** 3 4. Learned counsel for respondents 1 and 2 in response contended that the application under Section 47 of the Code itself is not maintainable since the illegality that petitioner urges ought to have been raised in a petition under Rule 90 of Order 21 of the Code within the prescribed time. It is also contended that petitioner had knowledge about the sale proceeding, he was served in the execution proceeding but remained absence and hence was set exparte. 5. Since there was some controversy as to whether notice of proclamation as required under Rule 66(2) of Order 21 of the Code was served on petitioner, I called for information from the learned Munsiff, Chittur through the Registrar (Judicial). Learned Munsiff has submitted a report along with a photocopy of proceedings sheet in the execution proceedings (in E.P.No.186 of 2008). It is revealed from the said report and photocopy of proceedings sheet that notice under Rule 22 of Order 21 of the Code (as the decree was passed on 10.07.2002 and execution petition was filed in the year, 2008) was attempted to be served on petitioner twice, it failed and notice was again issued to the petitioner. That notice was returned unclaimed and thereon petitioner was set exparte in the execution proceeding (at the stage of Rule 22 of Order 21 of the Code). Learned Munsiff has specifically stated in his report that on a perusal of the proceedings sheet it is seen that notice under Rule 66(2) of Order 21 of the Code was not issued to the petitioner. I have perused the photocopy of proceeding sheet in the execution and find that on 23.01.2009 (pursuant to the **OP(C) No.572/2010** 4 notice issued to the petitioner under Rule 22 of Order 21 of the Code being returned unclaimed) petitioner was set exparte. But thereafter in the proceeding for settlement of proclamation, no notice is seen ordered to the petitioner. Learned Munsiff has confirmed in his report that “on a meticulous perusal it is seen that in the above E.P. order 21 rule 66 notices were not issued by my learned predecessor during his execution proceedings.” Thus it is revealed that notice under Rule 66(2) of Order 21 was not issued to the petitioner. Now the question is, what is the effect of non-issue of notice under Rule 66(2) of Order 21 of the Code on the sale of property belonging to the petitioner (item Nos.1 and 2 in the proclamation schedule). 6. The mere fact that petitioner was served with notice under Rule 22 of Order 21 of the Code does not dispense with the statutory obligation to serve notice on petitioner under Rule 66(2) of Order 21 of the Code. In paragraphs 6 to 8 of decision in **Thomas Joseph v. Catholic Syrian Bank** , necessity to serve notice on the judgment debtor under Rule 66(2) of Order 21 of the Code is highlighted. The Supreme Court in **Desh Bandhu Gupta v. N.L.Anand & Rajinder Singh** also has taken that view. This Court in **A.G.M. Constructions (P) Ltd. v. Shibu Kumar** , following the decision in **Desh Bandhu Gupta v. N.L.Anand & Rajinder Singh** has held in paragraph 20 after a survey of the relevant decisions of the Supreme Court on the point that **OP(C) No.572/2010** 5 what could be discerned from the said decisions is that if no notice is served on the judgment debtor under Rule 66(2) of Order 21 of the Code and/or no proclamation of sale is drawn up, it made the court sale a nullity being void and it came within the scope of Section 47 of the Code being a pre-sale illegality. Therefore, E.A.No.290 of 2010 is maintainable under Section 47 of the Code. The contention that petitioner ought to have filed a petition under Rule 90 of Order 21 cannot be accepted 7. From the decisions above stated it has to be held that failure to issue notice to the petitioner/first judgment debtor under Rule 66(2) of Order 21 of the Code has made subsequent sale of property of petitioner null and void in that failure to issue notice to the petitioner has affected very jurisdiction of the executing court to proceed with sale of his property. It follows that sale of item Nos.1 and 2 of the proclamation schedule belonging to the petitioner is a nullity which is liable to be set aside. ## Resultantly, this Original Petition is allowed in the following lines: i. Ext.P4, order on E.A.No.290 of 2010 (in E.P.No.186 of 2008 in O.S.No.97 of 2002) of the court of learned Munsiff, Chittur is set aside. E.A.No.290 of 2010 will stand allowed and the proclamation, sale and subsequent proceeding taken in respect of item Nos.1 and 2 of the proclamation schedule will stand set aside. **OP(C) No.572/2010** 6 ii. So far as first respondent/auction purchaser is concerned, he has already deposited the purchase price in the executing court which has been withdrawn by the second respondent/decree holder. It is open to the first respondent/auction purchaser to seek appropriate remedy in the executing court for recovery of the amount from second respondent/decree holder as provided under law. iii. It is made clear that it is open to the second respondent/decree holder to proceed against item Nos.1 and 2 of the proclamation schedule as provided under law for recovery of amount if any due to him in the same execution proceeding after serving notice to the petitioner as provided under Rule 66(2) of Order 21 of the Code. **THOMAS P.JOSEPH, Judge.** ## **cks**