IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 FAO.No. 239 of 2011() --------------------- AGAINST THE ORDER DATED 11/08/2011 IN EA 276/2011 & EA 234/11 IN EP 25/2006 IN ARC.24/2004 of SUB COURT,NEYYATTINKARA .................... APPELLANT/AUCTION PURCHAISER ------------------------------------------------ SANTHOSHKUMAR, S/O. SUKUMARAN NAIR, KARTHIKA BHAVAN, THIRUPURAM VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.T.RAJASEKHARAN NAIR RESPONDENT(S): DCREE HOLDER/JUDGMENT DEBTORS -------------------------------------------- 1. M. BALAKRISHNAPILLAI, S/O.MADHAVAN PILLAI, MANAGING DIRECTOR, JAYAGOPAKUMAR CHITS PVT. LIMITED, KALIAKKAVILAI, VILAVANCODU TALUK, KANYAKUMARI DISTRICT-629702. 2. C. LATHAKUMARI, D/O. CHELLAPPAN PILLAI, GOVT. SERVANT, MELETHIL VEEDU, THIRUPURAM VILLAGE, THIRUVANANTHAPURAM-695001. 3. THOBIAS, S/O. DANIEL, KUTTIPLAVILA VEEDU VENKADAMBU DESAM, KULATHOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM-695121. ADV. SRI.V.R.GOPU FOR R2 SRI.J.NARAYANA PILLAI FOR R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- F.A.O. No.239 of 2011 ----------------------------------------------- Dated 12th October, 2011. J U D G M E N T K.M.Joseph, J. The appellant calls in question, orders dated 11.8.2011 in E.A.276/11 and E.A.234/11 in E.P.25/06 in ARC 24/04 on the file of the Sub Court, Neyyattinkara. He prays for setting aside the order and remanding the matter for consideration. 2. The appellant was the auction purchaser in a sale proceedings. The undisputed fact is that the sale took place on 28.5.2011. In E.A.276/11, the learned Sub Judge has passed the following order : “No objection for Decree Holder. Entire amount due to auction purchaser is also deposited. Hence E.A. Allowed.” This order is dated 11.8.2011. By the order in E.A.234/11, it is ordered that “Rs.15,000/- due to Auction Purchaser deposited. Hence no objection. Hence allowed.” Of course, we notice that one of the contentions taken in the ground was that the application under Order 21 Rule 89 of the Civil Procedure Code (for short, 'C.P.C.'), which apparently has been allowed, was filed only after the statutory period FAO 239/11 2 prescribed. We further notice that in ground 'E', it is stated that admittedly, the judgment debtor has failed to deposit the decree amount within the statutory period, as contemplated. 3. We heard learned counsel for the appellant and learned counsel for the judgment debtor. 4. Learned counsel for the appellant would contend that this is a case where the requirements of Order 21 Rule 89 C.P.C. are not satisfied. According to Sri.T.Rajesekharan Nair, learned counsel for the appellant, not only an application must be made, but the deposit contemplated under Rule 89 C.P.C. must also be made within the prescribed period of 60 days. According to him, he canvassed the said proposition on the strength of the following judgments : Unni v. Nirmala Industries [1990 KHC 294 (SC)], Dakshayini v. Madhavan [1981 KHC 411] and Hanuman Bux and another v. Subodh Singh and others [2010 KHC 6913]. He would therefore, contend that the court below has not acted in accordance with law in allowing the applications as aforesaid. He would also draw our attention to Order 21 Rule 92 Sub Rule 5 of the C.P.C. for the proposition that application under Order 21 Rule 89 FAO 239/11 3 should have dealt with, with notice to the auction purchaser, which is not done in this case. 5. Per contra, learned counsel for the judgment debtor would contend that the requirements of Order 21 Rule 89 C.P.C. stand satisfied. The judgment debtor filed a petition seeking sanction for depositing the entire amount on 4.6.2011. It was posted to 29.7.2011. He filed an application to advance the hearing. While so, the judgment debtor actually paid the entire amount due to the decree holder by handing over the amount to the counsel appearing for the decree holder and he produced memo also, evidencing such payment to the decree holder. As far as deposit to the auction purchaser is concerned, he would submit that it was done within time. 6. The following facts are not in dispute : The sale took place on 28.5.2011. The application to set aside the sale under Order 21 Rule 89 C.P.C. was filed on 17.6.2011. It would appear that the judgment debtor filed an application on 4.6.2011 seeking sanction for depositing the amount. It would appear that the court did not pass orders immediately on the same, but issued notice to the auction purchaser also, FAO 239/11 4 according to the learned counsel for the judgment debtor. Whatever that be, it cannot be in the region of dispute that the entire amount due to the decree holder has been paid to the counsel for the decree holder on 16.6.2011. Learned counsel for the judgment debtor would point out that in the circumstances when the petition for sanction to make the deposit stood adjourned, the payment was made directly to the counsel for the decree holder. The whole idea behind insisting for deposit is to see that it is not a mere offer by the judgment debtor and the deposit must be made so that the decree holder will enjoy the fruits of the decree on the sale being set aside under Order 21 Rule 89 C.P.C. and the amount can be made over to the decree holder. In this case, the decree holder has, apparently received the amount due under the decree within the meaning of Order 21 Rule 89 C.P.C. We notice from the impugned order that the decree holder has no objection. In fact the decree holder has not challenged the impugned orders in this case. Therefore, we would think, it will be hyper technical for the learned counsel for the appellant to contend that there is no deposit as such within the meaning of Order 21 Rule 89 FAO 239/11 5 C.P.C. and we repel the said contention. In fact, contrary to the ground taken in the appeal memorandum, we notice that the application to set aside sale has been made very much within the time prescribed. The appellant has no contention about of the deposit of 5% payable to the auction purchaser not being made in time. In such circumstances, we see no basis for setting aside or remanding the matter. Accordingly, the appeal is dismissed. It is open to the appellant to move the court below for getting back the value of the stamp and the amount already deposited by the appellant, and it is for the court to pass appropriate orders on the same. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.