IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 CRP.NO. 671 OF 2009() ------------------------------------ AGAINST THE ORDER DATED 07/11/2009 IN E.A. NO.1149 OF 2007 IN EP.140/2000 IN OS.207/1997 OF PRL.SUB COURT,IRINJALAKUDA .................... REVN. PETITIONER(S): PETITIONER/2ND JUDGMENT DEBTOR ------------------------------------------------------------------------------------ PARVATHY ANTHARJANAM,W/O.KRISHNAN ELAYATH,VAZHUTHANAPPILLY ELLOM, ERAMALLUR.P.O, CHEMMANAD DESOM ,EZHUPUNNA VILLAGE,CHERTHALA TALUK, ALAPPUZHA DISTRICT,REPRESENTED BY POWER OF ATTORNEY HOLDER MURALI SARMMA,S/O.PARVATHY ANTHARJANAM. BY ADV. SRI.SAJU.S.A SRI.K.C.KIRAN RESPONDENT(S): RESPONDENTS --------------------------------------------- 1. CHITTARIKKAL ENTERPRISES KURIES & LOANS, P.O.KORATTY,REPRESENTED BY MANAGING PARTNER, MOOKAMBI,W/O.VELAYUDHAN,PADIYATH HOUSE, CHETTARIKKAL,KORATTY SOUTH.P.O, MUKUNDAPURAM TALUK. 2. P.R.NARAYANAN ELAYATH,S/O.RAMAN, PEESAMPILLI ILLOM,KORATTY SOUTH.P.O, THRISSUR. ADV. SRI.M.P.KRISNNAN NAIR FOR CAVEATOR SRI.M.P.KRISHNAN NAIR FOR R1 SRI.T.N.MANOJ FOR R2 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== C.R.P. No.671 of 2009 ==================================== Dated this the 27th day of May, 2010 O R D E R Revision petition arises from the order dated 07.11.2009 on E.A.No.1149 of 2007 in E.P. No.140 of 2000 in O.S. No.207 of 1997 of the court of learned Principal Sub Judge, Irinjalakuda. That was an application, according to the learned Senior Advocate appearing for petitioner filed under Section 47 of the Code of Civil Procedure (for short, “the Code”) challenging sale of property in execution of the decree in O.S. No.207 of 1997. Application was filed after the sale was confirmed. Before that there were some other proceedings at the instance of petitioner challenging the sale which did not fructify. Later came E.A. No.1149 of 2007 under Sec.47 of the Code. Application was opposed by the contesting respondent on several grounds including that the application is barred by limitation and that in view of the decision in E.A.No.1304 of 2004 the present application is barred by res judicata. Executing court held that the application is not signed by the party but only by the counsel, application being in the nature of a claim petition under Order XX1 Rule 58 of the Code has all the characteristics of a suit which ought to have been C.R.P. No.671 of 2009 -: 2 :- verified and singed by the petitioner. Executing court also held that the application is barred by limitation. Holding so, the application was dismissed. Learned Senior Advocate appearing for petitioner contends that findings entered by the executing court are erroneous. According to the learned Senior Advocate executing court was under a mis-impression that E.A.No.1149 of 2007 is a claim petition preferred under Order XX1 Rule 58 of the Code. It is an application challenging the sale in execution filed under Sec.47 of the Code for which the period of limitation is three years as provided under Article 137 of the Limitation Act. It is also contended by the learned Senior Advocate that since I.A. No.1149 of 2007 is not a claim petition it was not required to be verified as if in the case of a plaint as the executing court held. At any rate non-signing of the application by the party concerned is only a procedural defect which could have been allowed to be corrected even during the course of proceedings. Learned counsel for respondent No.1 would contend that even if all the contentions raised by the learned Senior Advocate are accepted, the application is barred by res judicata since challenge to the sale in execution was raised in I.A. No.1304 of 2004 on the very same grounds urged in the present application but that C.R.P. No.671 of 2009 -: 3 :- application failed. 2. So far as the plea of res judicata is concerned it is seen that executing court has not considered that question and hence it is not necessary for me to answer that question in this revision. 3. So far as maintainability of the application on the ground of limitation is concerned it is seen from E.A. No.1149 of 2007 that it is not a claim petition filed under Order XX1 Rule 58 of the Code or an application to set aside the sale under Order XX1 Rule 90 of the Code. Finding of the executing court that the application is barred by limitation cannot be sustained. For an application under Sec.47 of the Code the period of limitation is three years as per Article 137 of the Limitation Act. Concededly E.A.No.1149 of 2007 is preferred within three years of confirmation of the sale and hence the application is within time. 4. So far as non-verification and non-signing of the application by the petitioner is concerned as I stated above the petition being filed Sec.47 of the Code it was not required to be verified as if in the case of a plaint. Executing court has proceeded on the assumption that application is one filed under Order XXI Rule 58 of the Code and is to be equated to a plaint. C.R.P. No.671 of 2009 -: 4 :- Therefore the question of verification as if in the case of a plaint did not arise. 5. So far as non-signing of the application by the petitioner herself is concerned, this Court in Joseph v. Suhara Beevi (1999 [3] KLT 102) has held that it is only a defect not affecting the merits of the case or jurisdiction of court and that even at the appellate stage the defect could be cured by permitting the party concerned to sign the application. There is no reason why this principle should not be adopted on the facts and circumstances of this case. In case the application was not signed by the petitioner she should have been given an opportunity to sign the same. On the facts and circumstances of the case I am inclined to give petitioner an opportunity to cure the defect of non-signing the application by herself. Civil Revision Petition is allowed in the following lines: (i) Order in E.A. No.1149 of 2007 in E.P. No.140 of 2000 in O.S. No.207 of 1997 is set aside. (ii) E.A. No.1149 of 2007 is remitted to the Principal Sub Court, Irinjalakuda for fresh disposal C.R.P. No.671 of 2009 -: 5 :- after giving petitioner an opportunity to sign the application and cure the defect. (iii) Issues regarding res judicata and other contentions raised by the contesting respondent shall be decided by the executing court. (iv) Executing court shall expedite disposal of I.A. No.1149 of 2007. THOMAS P. JOSEPH, JUDGE. vsv