IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 CRP.NO. 230 OF 2011() --------------------------------- AGAINST THE ORDER DATED 02/04/2011 IN E.A. NO.500 OF 2011 IN E.P. NO. 220/2008 IN OS.531/2005 OF PRINCIPAL SUB COURT,ERNAKULAM .................... REVN. PETITIONER/PETITIONER/THIRD PARTY: --------------------------------------------------------------------- R. CHITRA (MENTALLY DERANGED) D/O. ANANDAVALLI AMMA, KOUSTHUBHAM, NEAR EROOR SERVICE CO-OPERATIVE SAHAKARANA SANGHAM, SHARIL, EROOR, THRIPUNITHURA BY MOTHER AND GUARDIAN, ANANDAVALLI AMMA. BY ADV. SRI.K.RAVEENDRAN SRI.M.A.HAKIM SHAH RESPONDENTS/DECREE HOLDER/RESPONDENTS: --------------------------------------------------------------------------- 1. K.V. VAISRAVAN, S/O. LATE MADHAVAN, KALLUNKAL LAKSHMI NIVAS, EROOR, NADAMA, THRIPUNITHURA - 682 301. 2. S. ANANDAVALLI AMMA, KASUTHUBHAM, NEAR EROOR SERVICE SAHAKARANA SANGHAM, SHARIL, EROOR, THRIUPUNITHURA – 682 301. 3. ANAND, S/O.ANANDAVALLI AMMA, KAUSTHUBHAM, NEAR EROOR SERVICE SAHAKARANA SANGHAM, SHARIL, EROOR, THRIPUNITHURA – 682 301. ADV. SRI.V.K.BALACHANDRAN FOR R1 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R.P.NO.230 OF 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- ANNEXURE-A1 TRUE COPY OF THE E.P. IN O.S. NO.532 OF 2005 BEFORE THE SUB COURT, ERNAKULAM. ANNEXURE-A2 TRUE COPY OF THE AFFIDAVIT AND PETITION TO IMPLEAD PETITIONER AS AN ADDITIONAL RESPONDENT IN THE E.P. AS NO.500 OF 2011. ANNEXURE-A3 TRUE COPY OF THE PROCLAMATION FOR SALE DATED 20.1.2011. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.230 of 2011 -------------------------------------- Dated this the 11th day of July, 2011. ORDER Petitioner is the second defendant in O.S.No.531 of 2005 of the court of learned Principal Sub Judge, Ernakulam but, not a party to E.P.No.220 of 2008. First respondent filed that suit for a decree for specific performance of an agreement for sale of plaint schedule property, seeking relief against all the defendants including petitioner. In the suit, petitioner and third defendant raised a contention that they are suffering from schizophrenia, the agreement sought to be enforced against them is null and void and hence no decree could be passed against petitioner and the third defendant. Trial court answered that question in favour of petitioner and third defendant and refusing to grant decree for specific performance, allowed the first respondent to recover the advance money with interest from defendants 1 and 4. That decree became final. In execution of that decree, first respondent brought the share of defendants 1 and 4 in the suit property for sale. At that time petitioner filed E.A.No.500 of 2011 seeking her impleadment. That application was dismissed by the executing court which is under challenge in this revision. Learned counsel contends that since what is sought to be sold in execution is the undivided property of a marumakkathayi tarwad it is not liable to attachment and sale until the joint property is divided. It is CRP No.230/2011 2 also contended that in view of the provisions of the Mental Health Act, 1987 permission of the District Court is required for sale of the share of the petitioner. A further contention is that property is grossly undervalued. 2. Learned counsel for first respondent has contended that there is no necessity to implead petitioner as a party to the execution proceeding since no execution is launched against petitioner, nor any attempt made to sell the share of petitioner in the property. Instead, what is brought for sale is the share of defendants 1 and 4/respondents 2 and 3 in the property pursuant to the decree against them and for sale of the their share, impleadment of petitioner in the execution petition is not required. It is also pointed out that the share of defendants 1 and 4/respondents 2 and 3 in the property has already been sold and the sale was confirmed in view of the order passed by this Court. Learned counsel points out that petitioner has filed E.A.No.688 of 2011 under Rule 90 of Order 21 of the Code of Civil Procedure to set aside the sale on various grounds including irregularity in publishing or conducting the sale. 3. Having heard learned counsel on both sides I am unable to understand how presence of petitioner was required in the execution proceeding. Admittedly the share of petitioner in the property was not brought up for sale; what was brought up for sale is only the share of defendants 1 and 4 (respondents 2 and 3) in the joint property. I am not inclined to think that for sale CRP No.230/2011 3 of share of respondents 2 and 3/defendants 1 and 4, presence of petitioner/defendant No.2 in the executing court was necessary. I do not find reason to interfere with the order dismissing E.A.No.500 of 2011. Other contentions raised by petitioner in this proceeding are not required to be answered in view of my above finding. If petitioner has filed E.A.No.688 of 2011 to set aside the sale, that application will have its course as provided under law and if petitioner is otherwise entitled, it is open to her to raise all her contentions in that proceeding as provided under law and so far as it is relevant for adjudication of the dispute involved therein. In the light of what I have stated above, without prejudice to the right, if any of petitioner to prosecute E.A.No.688 of 2011 as per law, this civil revision is dismissed. I.A.No.1180 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks