IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 8TH DECEMBER 2006 / 17TH AGRAHAYANA 1928 WP(C).No. 32685 of 2006(N) -------------------------------------- PETITIONER: ------------------ RADHA, D/O.BHAVANI, VALIYAVILA VEEDU, KANJIRAMKULAM VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENT: -------------------- JOHN WILSON, VENKULATHUVILA KADAYARA VEEDU, KANJIRAMKULAM VILLAGE, NEYYATTINKARA TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/12/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. -------------------------- W.P.(C)NO.32685 OF 2006 ------------------------- DATED THIS THE 8th DAY OF DECEMBER, 2006 JUDGMENT Petitioner is the judgment debtor and respondent, the decree holder. This petition is filed under Article 227 of Constitution of India for a writ of certiorari to quash Ext.P4 order passed by the executing Court in E.P.156/01 in O.S.210/2000. Ext.P4 order was passed dismissing E.A.638/02 and E.A.660/03. The former was an application to set aside the sale under Rule 90 of Order XXI and the latter an application to set aside the report submitted by the Commissioner in the case and to appoint another Commissioner. Learned Munsiff dismissed both the applications. The case of the petitioner was that the sale itself was without jurisdiction as the executing Court did not comply with the mandatory provisions of Rule 64 Order XXI of the Code. According to petitioner the question whether part of the property is sufficient to satisfy the decree debt was not considered by the executing Court and therefore the writ petition is maintainable and Ext.P4 order is to be set aside. 2. Learned Counsel appearing for petitioner also argued that though an order passed dismissing an application under Order XXI Rule 90 is appealable, the order passed under Order XXVI Rule 10 W.P.9c)32685/06 2 refusing to set aside the report of the Commissioner is not an appealable order and it can only be challenged in a petition filed under Article 227 of Constitution of India and therefore this petition is maintainable. 3. Learned Counsel appearing for petitioner vehemently argued that petitioner is a poor illiterate Dalit woman and her residential property was sold in violation of the mandatory provisions of Rule 64 of Order XXI of the Code and in such circumstances, this Court has to exercise the extraordinary jurisdiction under Article 227 of Constitution of India to set aside Ext.P4 order. 4. As provided under Rule 1(j) of order XLIII of the Code an order passed under Rule 92 or Order XXI, dismissing an application filed under Rule 90 is an appealable order. Though the order dismissing application filed to set aside the report submitted by the Commissioner is not an appealable order, it is only an application incidental to the main application filed under Rule 90. That order could be challenged even without filing a separate appeal, along with the order dismissing the application filed under Rule 90. Hence the fact that no appeal will lie against the order dismissing the application filed to set aside the report of the Commissioner, is not a ground to entertain the challenge in this petition filed under Article 227 of Constitution of India. So also the W.P.9c)32685/06 3 argument of learned counsel appearing for petitioner that Rule 64 of Order XXI cast an obligation on the Court to sell only that part of the attached property which is necessary to satisfy the decree debt and it is not a discretion and therefore the sale is vitiated is also a ground that could be taken by the petitioner while challenging the order dismissing the application under Rule 90 of Order XXI. In such circumstances, when petitioner has an efficacious remedy by way of substantive right of appeal, I do not find it necessary to invoke the supervisory or extraordinary jurisdiction of this Court under Article 227 of Constitution of India. Arguments of learned Counsel appearing for petitioner was that the remedy by way of appeal is not efficacious remedy in the circumstances of the case. The fact that the period for filing an appeal expired is also not a ground to invoke the extraordinary jurisdiction of this Court. The petition is not maintainable. It is dismissed with liberty to petitioner to challenge Ext.P4 order by way of appeal before the appropriate Forum. M.SASIDHARAN NAMBIAR,JUDGE Acd W.P.9c)32685/06 4