IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 WP(C).No. 20872 of 2008(I) -------------------------------------- (E.A.NO.90/2008 IN E.P.NO.131/2007 IN O.S.NO.213/2003 OF THE MUNSIFF'S COURT, MAVELIKKARA) PETITIONERS: ----------------------- 1. S.SHAMSUDEEN, MULLANKUTTIYIL VEEDU, ADIKKATTUKULANGARA P.O., PALAMEL. 2. THANKAMMA, MULLANKUTTIYIL VEEDU, ADIKKATTUKULANGARA P.O., PALAMEL. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENTS: ------------------------- 1. ANIL BABU, ADVOCATE, AMBANATTU VILAYIL VEEDU, PUTHUPALLIKUNNAM, NOORANADU. 2. FEDERAL BANK LTD., ALUVA, REPRESENTED BY CHUNAKKARA BRANCH MANAGER. BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) - R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.20872/2008 I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER IN E.A.NO.90 OF 2008 IN E.P.NO.131/2007 IN O.S.NO.213 OF 2003 OF THE MUNSIFF'S COURT, MAVELIKKARA DTD. 23/05/2008. EXT.P2: COPY OF THE ORDER IN E.P.131/2007 IN O.S.213/2003 OF THE MUNSIFF'S COURT, MAVELIKKARA DTD. 21/05/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO.20872 OF 2008 ------------------------------------------ Dated this the 13th day of August, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India challenging Ext.P1 and P2 orders passed by the Munsiff Court, Mavelikkara. Under Ext.P1 order, E.A.90 of 2008, an application filed under Rule 90 of Order XXI of Code of Civil Procedure to set aside the sale, by petitioners/judgment debtors were dismissed. The order reads: “Heard. On verifying the records it is seen that sale was confirmed on 21.5.2008 and the E.P. was closed. Hence the E.A. Is dismissed. No cost” The order is dated 23.5.2008. Under Ext.P2 order execution petition was seen closed on 21.5.2008. The order reads: “E.A.70/08 dismissed vide separate order. Sale confirmed and E.P. closed.” E.A.70 of 2008 was an application filed by the decree holder to set aside the sale alleging material irregularity in the conduct of WP(C)20872/08 2 the sale. Though notice was served on the first respondent auction purchaser, he did not appear either personally or through a counsel. First respondent himself is an Advocate. Second respondent the decree holder appeared through their counsel. 2. Learned counsel appearing for petitioner and second respondent were heard. 3. It is submitted by the petitioners and second respondent that the property was sold on 24.3.2008. Under sub rule 1 of Rule 92 of Order XXI where no application is made under Rule 89 or Rule 90 or Rule 91, or where such application is made and disallowed, Court shall make an order confirming the sale and thereupon the sale shall become absolute. Therefore the sale could only be confirmed after the period provided for setting aside a sale under Rule 90 or 91 of the Code of Civil Procedure. The period of limitation provided for filing an application under Rule 90 is 60 days from the date of sale. Therefore the sale could only be confirmed after the expiry of 60 days from the date of sale. If that be so, the executing Court could not have confirmed the sale on 21.5.2008, as the sale was conducted only on 24.3.2008. Therefore the confirmation of sale WP(C)20872/08 3 on 21.5.2008 itself is illegal and has to be quashed. Ext.P1 order shows that the petition filed under Rule 90 was not considered on merit and was dismissed for the reason that the sale was confirmed. In such circumstances Ext.P1 order is quashed and E.A.90 of 2008 is remanded to Munsiff Court, Mavelikkara for fresh disposal in accordance with law. As the sale was confirmed and E.P. was closed before the expiry of the period fixed for filing a petition under Rule 90 and confirmation of the sale is illegal, Ext.P2 order is also quashed. Execution petition is restored to file with a direction to dispose it in accordance with law. M. SASIDHARAN NAMBIAR, JUDGE Okb/-