IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 WP(C).No. 6138 of 2009(O) --------------------------------- AGAINST THE ORDER DATED 05/02/2009 IN EA 108/08 IN EP 69/05 IN OS.361/2002 of MUNSIFF COURT,HARIPAD .................... PETITIONER(S): ------------------- VASUMATHY, D/O. CHINNAMMA, HARIVILASAM, MUTHUKULAM SOUTH, FROM VISHNU NIVAS, POTHAPALLY NORTH MURI, KUMARAPURAM. BY ADV. SRI.R.SUNIL KUMAR RESPONDENT(S): -------------------- KAMALAKSHY, D/O. KUTTY, EERACKATTU, KIZHAKKATHIL, THAMALLACKAL SOUTH MURI, KUMARAPURAM. BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 6138/2009 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER IN EA. NO.108/08 IN EP. NO.69/2005 IN O.S. NO.361/2002 DATED 05/02/2009. P2: COPY OF THE ORDER IN EA. NO.109/08 IN EP. NO.69/2005 IN O.S. NO.361/2002 DATED 05/02/2009. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. ---------------------------------------- W.P(C).No.6138 of 2009 --------------------------------------- Dated this 08th day of December, 2011 JUDGMENT Petitioner is the judgment debtor in E.P.No.69 of 2005 in O.S.No.361 of 2002 of the Court of learned Munsiff, Haripad. Respondent obtained a money decree against petitioner for recovery of `.13,751/- and filed execution petition for recovery of `.16,865/-. Property of petitioner - 5.12Ares was sold for `.21,000/- on 03.12.2007 and the sale was confirmed on 08.02.2008. Petitioner filed E.A.No.108 of 2008 with a delay of 274 days to set aside the sale under Rule 90 of Order XXI of the Code of Civil Procedure (for short, "the Code”) alleging that there was fraud and material irregularity in publishing and conducting the sale. Petitioner also filed E.A.No.109 of 2008 to condone the delay. These applications were resisted by the respondent. Executing court dismissed E.A.No.109 of 2008 as petitioner requested time and that was rejected. Consequently E.A.No.108 of 2008 was also dismissed. The said orders are under challenge in this petition. 2. Learned counsel contended that property was sold for a meager sum though it was worth more than `.1,00,000/- per W.P(C).No.6138 of 2009 -: 2 :- cent. It is contended that executing court did not conduct any enquiry under Rule 64 of Order XXI of the Code to find whether sale of portion of the property is sufficient to satisfy the decree debt. According to the learned counsel, such a finding necessary and that confers jurisdiction for the executing court to sell the whole or any portion of the property. The further contention is that sale was conducted beyond 30 days of date of proclamation and hence fresh proclamation under rule 67 was to be made unless petitioner consents to waive it. Hence the sale is invalid by virtue of sub rule (2) of Rule 69 of Order XXI of the Code. It is contended that in such a situation notwithstanding the period of limitation for filing application under Rule 90 of Order XXI of the Code it is within the power, nay the duty of this Court to interfere and undo the injustice. Reliance is placed on the decision in Nani Gopal Paul Vs. T.Prasad Singh (AIR 1995 SC 1971). 3. Learned counsel for respondent contended that E.A.No.109 of 2008 was not maintainable since Sec.5 of the Limitation Act (for short, "the Act”) has no application to an application in execution and hence E.A.No.108 of 2008 could not be sustained having being preferred 274 days after the prescribed time. It is further contended that allegations of W.P(C).No.6138 of 2009 -: 3 :- material irregularity or fraud in publishing or conducting the sale is not established. According to the learned counsel application of sub rule (2) of Rule 69 of Order XXI of the Code is only to cases where sale is “adjourned” and not when based on the proclamation the date for sale is originally fixed. 4. On the question whether E.A.No.109 of 2008 was maintainable, it is not disputed that Sec.5 of the Act has no application. For, it is specifically stated therein that the said provision has no application to applications in execution. E.A.No.108 of 2008 is an application preferred in execution under Rule 90 of Order XXI of the Code. Hence the question of condonation of delay even if petitioner adduced evidence does not arise. Hence though not for the reasons stated by the executing court the ultimate dismissal of E.A.No.108 of 2008 does not call for interference. 5. The next question is whether notwithstanding that application was preferred beyond the prescribed time, this Court has the duty to interfere with the sale conducted on the premise that it is illegal and has resulted in injustice to the petitioner. The argument is based on the decision referred supra where the Supreme Court held that the appellate court and the High Court W.P(C).No.6138 of 2009 -: 4 :- are bound to take into account the injustice which has resulted from gross violation of principles of law and interfere with the matter notwithstanding the period of limitation. 6. Argument is based on sub rule (2) of Rule 69 of Order XXI of the Code. That provision states that where the sale is “adjourned” under sub rule (1) for a longer period than 30days, a fresh proclamation under rule 67 shall be made unless the judgment debtor consents to waive it”. It is pointed out that in this case proclamation was settled on 03.10.2007, published on 23.10.2007 and the sale was conducted on 03.12.2007, admittedly beyond 30 days of the date of settlement of proclamation. But, that does not mean that the sale held is invalid for the reason of non compliance of sub rule (2) of Rule 69. Reason is that sub rule (2) of Rule 69 deals only with “adjourned” date of sale. Sub rule (1) of Rule 69 says that the Court may, in its discretion, adjourn sale to a specified day and hour and it is with reference to that 'adjournment' that sub rule (2) says that where the sale is 'adjourned' for a longer period than 30 days, either a fresh proclamation under Sec.67 is necessary or such adjournment to a day beyond 30 days must have been consented to be waived by the judgment debtor. In W.P(C).No.6138 of 2009 -: 5 :- short, the said provision has no application to cases where the date of sale is originally fixed by the proclamation to a day beyond 30 days. I must also bear in mind that so far as initial fixation of date of sale is concerned, no rule under Order XXI prescribes the outer limit of time and rule 68 only says that sale of immovable property shall not be held within 15 days of proclamation. Therefore in the absence of any prescription regarding the outer limit it was not illegal for the executing court to fix the date of sale as 03.12.2007 so far as it was not a case of adjournment of sale to 03.12.2007. Viewed in that line I do not find any illegality in the date fixed for sale. 7. As aforesaid the application - E.A.No.108 of 2008 has been filed under Rule 90 of Order XXI of the Code beyond the prescribed time and hence could not be entertained. Decision referred supra in the circumstance has no application since there is no violation of any rule in the matter or injustice proved. Viewed in that line I do not find reason to interfere with the impugned orders. This writ petition is dismissed. (THOMAS P. JOSEPH, JUDGE) Sbna/-