IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 FAO.No. 94 of 2011() -------------------- E.A.388/2010 IN E.P.240/06 ON THE FILE OF PRL.S.C.,THALASSERY .................... APPELLANT ----------------------------- NAJEEB.K.P, S/O.A.N.A. ABOOBACKER, SAPNA, KURICHIYIL.P.O, THALASSERY. BY ADV. SRI.M.KRISHNAKUMAR SMT.PRABHA R.MENON RESPONDENT(S): --------------- 1. M/S. MEDICHEM, REPRESENTED BY ITS PROPRIETOR, V.M. BABURAJAN, AMINIYATT HOUSE, ERANHOLI AMSOM, DEOM, THALASSERY 670 101. 2. V.M. RAVINDRAN, S/O. LATE MADHAVAN, AMINIYATT HOUSE, ERANHOLI AMSOM, DEOM, THALASSERY 670 101. 3. THE CATHOLIC SYRIAN BANK LTD., REPRESENTED BY ITS BRANCH MANAGER, THALASSERY 670 101. ADV. SRI.C.A.JOY FOR R3 SRI.R.SURENDRAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- F.A.O. No.94 of 2011 ----------------------------------------------- Dated 9th August, 2011. J U D G M E N T Joseph, J. Appellant calls in question the order passed in E.A.388/2010 in E.P.240/06 on the file of the Sub Court, Thalassery. The appellant is the auction purchaser in the execution sale held at the instance of the decree holder bank. By the impugned order, the execution court has set aside the sale held on 2.9.2010 for the reason that it is against the order of the High Court. 2. The judgment debtor had approached this Court by filing a Writ Petition at a time when the execution court had notified the auction of the property. This Court passed the following order : “Resultantly, the Writ Petition is disposed of in the following lines : (i) Petitioner is granted time till 2.9.2010 to discharge the entire liability due under the decree. Petitioner shall deposit the said amount in the executing court, if necessary in instalments within the said period. (ii) Sale of property scheduled to be held on 5.6.2010 will stand adjourned to a day after 2.9.2010 on condition that FAO No.94/2011 2 petitioner filed affidavit in the executing court on or before 5.6.2010 waiving fresh proclamation for such sale. In case entire liability is not discharged within aforesaid period or affidavit is not filed within time it will be open to the respondent to proceed with sale of property as per Ext.P3, sale notice.” 3. There is no dispute that the sale was conducted on 2.9.2010 after 2 p.m. There is no dispute that the judgment debtor had filed the affidavit that he is prepared to waive the issuance of a fresh notice. There is also no dispute that the judgment debtor did not clear the decree debt by 2.9.2010, as permitted by the court. It is on these facts and on understanding the direction of the High Court, the execution court held that the sale held is against the order of the High Court of Kerala. 4. We heard the learned counsel for the appellant, learned counsel for the decree holder Bank and also the learned counsel for the first respondent. Learned counsel for the appellant would submit that the court below was not correct in setting aside the sale. He pointed out that a perusal of the FAO No.94/2011 3 order of the High Court would make it clear that execution court sale could be held on 2.9.2010. It is also the understanding of the judgment debtor, he points out and therefore, there is nothing wrong with the sale being held on 2.9.2010. It is argued that the amount as directed to be paid by the court was not paid till 2.9.2010. The numbered chalan should have been obtained before 1 p.m. and payment should have been made upto 3 p.m. and this was not done, and keeping in view the last portion of the order, the court was perfectly justified in holding the sale on 2.9.2010, it is submitted. 5. Learned counsel for the decree holder also supported the learned counsel for the appellant. We see no merit in the appeal. The High Court had categorically directed that the sale shall be adjourned to a date after 2.9.2010. The only condition which was superimposed was that the judgment debtor must file an affidavit undertaking to waive the issuance of a fresh proclamation. Admittedly, the judgment debtor has filed such an affidavit within the time. In such circumstances, the sale should have been adjourned to a date after 2.9.2010. FAO No.94/2011 4 This was not done. It is utter illegality in so far as the holding of the auction on 2.9.2010 is contrary to the direction of the High Court. The only argument would appear to be that in the later portion, this Court had directed that if the affidavit is not filed or if the payment is not made, it will be open to the Bank to proceed with sale of property as per Ext.P3 notice. As we understand it, it only means that if the affidavit was not filed or the payment was not made, proceedings could be taken on the basis of the originally issued sale proclamation and there was no need for any fresh sale proclamation. It did not intend that the earlier direction that the sale will stand adjourned to a date beyond 2.9.2010, if the affidavit is filed, should in any manner be diluted. Therefore, the up shot of the discussion is that the High Court intended that the sale can be held only on a date after 2.9.2010. The execution court has, however, in violation of the direction, proceeded to hold the sale on 2.9.2010. This is clearly insupportable and on this ground alone, the sale has been set aside. We see no illegality or error in the order of the court below. We record the submission of the learned counsel FAO No.94/2011 5 for the first respondent that the first respondent will deposit the entire decretal amount by 31.8.2011 and subject to the same, the appeal will stand dismissed. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.