IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 OP(C).No. 707 of 2011(O) ------------------------ OS.1682/2001 of PRL.MUNSIFF COURT,THRISSUR .................... PETITIONER/DEFENDANT ---------------------------------------- RAMADAS,AGED 50 YEARS, S/O.RAMAN EZHUTHASSAN,PARAMMEL HOUSE, CHOORAKKATTU KARA,AMALANAGAR,THRISSUR. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): PLAINTIFF ------------------------ THE CATHOLIC SYRIAN BANK LTD, MUTHUVARA BRANCH,THRISSUR, PIN 695001. ADV. SRI.C.A.JOY SRI.SANJAY THAMPI THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.707/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF EP NO.2073/2005 IN OS NO.1682/2001 FILED BEFORE THE PRINCIPAL MUNSIFF'S COURT, THRISSUR EXT.P2 TRUE COPY OF THE EA NO.2820/2009 IN EP NO.2073/2005 IN OS NO.1682/2001 EXT.P3 TRUE COPY OF THE EA NO.284/2011 IN EA NO.2820/2009 IN EP NO.2073/2005 IN OS NO.1682/2001 FILED BY PETITIONER BEFORE THE PRINCIPAL MUNSIFF COURT, THRISSUR. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.707 of 2011 -------------------------------------- Dated this the 22nd day of December, 2011. JUDGMENT Spoke. Judgment disposing of the case on 20.12.2011 is recalled. 2. Respondent obtained a decree in its favour in O.S.No.1682 of 2001 of the court of learned Principal Munsiff, Thrissur for recovery of money due from petitioner. Since amount due under the decree was not paid, respondent filed E.P.No.2073 of 2005 and in the course of execution the mortgaged property was sold in auction on 16.12.2008 and purchased by the respondent/decree holder. The sale was confirmed on 25.02.2009 since petitioner had not preferred any application to set aside the sale on any ground whatsoever. Sale certificate was issued to the respondent. Respondent filed E.A.No.2820 of 2009 for delivery of property. While that application was pending, petitioner filed E.A.No.284 of 2011 in the executing court seeking time to pay the decree debt. I am told that the said application is pending. While so, petitioner/judgment debtor approached this Court with this Original Petition seeking a direction to the executing court to dispose of Ext.P3, application (E.A.No.284 of 2011) before proceeding further with E.P.No.2073 of 2005. Petitioner also sought for grant of time to clear the decree debt. OP(C) No.707/2011 2 3. When the matter came up for admission, by order dated 18.02.2011 this Court granted interim stay of further proceedings in E.P.No.2073 of 2005 for a period of one month on condition that petitioner deposited `1,50,000/- in the executing court within two weeks from the date of the order. It is submitted that petitioner has deposited that amount in the executing court. 4. In the meantime, it is admitted by counsel on both sides that petitioner paid the amount due under the decree less the amount in deposit in the executing court to the respondent and that payment along with the amount deposited in the executing court would satisfy the entire decree debt. In view of the above, respondent has no objection in the sale being set aside and the sale certificate being cancelled. Learned counsel for respondent has made an endorsement on the file to the above effect. Petitioner has no objection in the sum of `1,50,000/- deposited with the executing court being withdrawn by the respondent. Learned counsel has made an endorsement to that effect as well. 5. Now as things stands, though subsequent to the sale of property, its confirmation and issue of sale certificate to the respondent, parties have settled the dispute and as above stated, respondent has no objection in the sale being set aside and the sale certificate being cancelled. The question then is whether this Court could set aside the sale invoking power either under Article 226 or 227 of the Constitution of India since OP(C) No.707/2011 3 petitioner/judgment debtor did not move the executing court to set aside the sale on any ground whatsoever within the time permitted. Obviously if invocation of power under Article 226 or 227 of the Constitution would affect the right of the opposite party, question of setting aside the sale without complying with the provisions of the Code of Civil Procedure (for short, “the Code”) does not arise. But in cases where right of opposite party is not affected, it is within the power of this Court on the ground of equity to grant such equitable relief. 6. Though in connection with a different matter, the Supreme Court considered the question. In Sree Jain Swetambar Terapanthi Vid (S) v. Phundan Singh and others (AIR 1999 SC 2322). No doubt that case concerned grant of temporary order of injunction under Order XXXIX Rule 1 of the Code. Since the order of the High Court was not in accordance with the law, the Supreme Court considered whether it has to invoke power under Article 136 of the Constitution with respect to the order passed by the High Court on grounds of equity. The Supreme Court referred to the various decisions including Municipal Board Pratabgarh v. Mahendra Singh Chawla ((1982) 3 SCC 331) and held in paragraph 18: “From the above discussion, the principle that emerges is that where the High Court has granted some relief by way of social justice or on equitable OP(C) No.707/2011 4 grounds without violating the rights of other parties, though in law such relief was not permissible, the Supreme Court would not interfere in its discretionary jurisdiction under Article 136 if the order under appeal advances the cause of justice and if it is just and equitable so to do.” 7. In this case equity demands that as parties have settled the dispute out of court and respondent/decree holder/purchaser in auction has no objection in the sale being set aside and in cancelling the sale certificate, petitioner should be granted equitable relief to ensure justice. Otherwise, it may require petitioner to get a re-conveyance of property from the respondent spending money for the same. In such a situation I am inclined to invoke the power of this Court under Article 226 of the Constitution, set aside the auction sale and cancel the sale certificate. Resultantly this Original Petition is allowed as follows: i. Sale of the mortgaged property belonging to the petitioner in E.P.No.2073 of 2005 in O.S.No.1682 of 2001 of the court of learned Principal Munsiff, Thrissur held on 16.12.2008 and its subsequent confirmation on 25.02.2009 are set aside. Sale certificate issued to the petitioner in the above circumstances is cancelled. OP(C) No.707/2011 5 ii. Respondent is directed to produce the sale certificate in the executing court within a month from this day. On such production, executing court shall cancel the sale certificate and make an endorsement to that effect on it. The sale certificate shall be kept in the custody of the court below. iii. Executing court shall intimate the fact of sale and its confirmation being set aside and cancellation of the sale certificate to the Sub Registrar concerned. iv. It is made clear that the sum of `1,50,000/- (Rupees one lakh and fifty thousand only) in deposit with the executing court can be withdrawn by the respondent on application. THOMAS P.JOSEPH, Judge. cks