IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 WP(C).No. 19833 of 2009(O) ------------------------------------- O.S. NO.399/1987 OF SUB COURT, KOTTYAYAM. PETITIONER(S): --------------------- C.J.PAUL CHERUPILLIL, VETTUKUZHY HOUSE VIJAYAPURAM VILLAGE, KOTTAYAM DISTRICT. BY ADV. MR.K.M.VARGHESE RESPONDENT(S): ------------------------- 1. C.J.KUNJAMMA, KUZHIMANNIL HOUSE NALUKODIKARA, PAIPPADU VILLAGE. 2. C.J.MARIAMMA VALIYAVEETTIL, XXX/1182, NEAR BYE PASS, PALARIVATTOM, PO,. KOCHI. 3. C.J.THRESSIAMMA KOLLAPPILLIL HOUSE, VADUTHALA VILLAGE, VADUTHALA PO, ERNAKULAM DISTRICT. 4. C.J.JACOB, CHERUPILLIL HOUSE KOTTAYAM. 5. PUSHPA JOSE, CENTRAL LODGE, THIRUNAKKARA, KOTTAYAM. 6. JENCY MARY (MINOR) REPRESENTED BY PUSHPAMMA JOSE CENTRAL LODGE, THIRUNAKKARA, KOTTAYAM. 7. JENSON JOSEPH (MINOR) REPRESENTED BY PUSHPAMMA JOSE CENTRAL LODGE, THIRUNAKKARA, KOTTAYAM. 8. ALEXANDER J,ARACKAL, ADVOCATE KOTTAYAM, RECEIVER IN OS.NO.399/87 OF SUB COURT KOTTAYAM. 9. MR.ROY JOSE, THENAMMAKKAL, COLLECTORATE PO, KOTTAYAM. R1 TO R3 BY ADVS. MR.A.P.SUBHASH R8 BY ADV. MR.T.I.ABDUL SALAM R9 BY ADV. MR.MATHEW JOHN (K) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 19833/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. 10.4.06 IN IA. NO.1138/06 IN OS. 399/87. P2:- COPY OF THE IA. NO.2767/06 IN OS. 399/87 ON THE FILE OF SUB COURT, KOTTAYAM. P3:- COPY OF THE IA. NO.2768/06 IN OS. 399/87 ON THE FILE OF SUB COURT, KOTTAYAM. P4:- COPY OF THE JUDGMENT DTD. 29.6.07 IN WPC. 22325/06. P5:- COPY OF THE JUDGMENT DTD. 17.3.08 IN WPC. 8833/08. P6:- COPY OF THE COMMON ORDER DTD. 8.4.08 IN IA. 2767/06 AND IA. NO.2768/06 IN OS. 399/87 ON THE FILE FO ADDL. SUB COURT, KOTTAYAM. P7:- COPY OF THE IA. NO.1316/08 DTD. 21.5.08 IN OS. 399/87. P8:- COPY OF THE ORDER DTD. 19.3.09 IN IA. NO.1316/08 IN OS. 399/87 ON THE FILE OF ADDL. SUB COURT, KOTTAYAM. RESPONDENT'S EXHIBITS R8:- COPY OF THE NOTICE DTD. 25.2.08 OF THE RECEIVER IN OS. NO.399/87 OF THE SUB COURT, KOTTAYAM. R8(a):- COPY OF THE AUCTION PROCEEDINGS IN OS. 399/87 OF THE SUB COURT, KOTTAYAM. R8(b):- COPY OF THE AUCTION PROCEEDINGS INRESPECT OF ITEM, NO.1 PROPERTY IN OS. 399/87 OF THE SUB COURT, KOTTAYAM DTD. 15.3.08. R8(c):- COPY OF THE AUCTION PROCEEDINGS INRESPECT OF ITEM NO.2 PROPERTY IN OS. 399/87 OF THE SUB COURT, KOTTYAYAM DTD. 15.3.08. R8(d):- COPY OF THE REPORT NO.3/2008 DTD. 19.3.08 FILED BY THE RECEIVER IN OS. NO.399/87 OF THE SUB COURT, KOTTAYAM. R8(e):- COPY OF THE REPORT NO.4 DTD. 28.3.08 FILED BY THE RECEIVER IN OS. NO.399/87 OF THE SUB COURT, KOTTAYAM. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.19833 OF 2009 -------------------------- Dated this the 25th day of September 2009 ------------------------------------- JUDGMENT Petitioner is the third defendant in O.S No.399 of 1987 on the file of the Additional Sub Court, Kottayam. Suit was one for partition and a preliminary decree was passed allotting shares to the respective parties. In the final decree proceedings, application was moved for sale of the properties by having recourse to the Partition Act as a division between the parties in accordance with the preliminary decree was found not feasible. The receiver appointed by the court was directed to conduct the auction as between the sharers. Twice the auction was conducted by the receiver as among the sharers, but, there was no successful bidder to knock out the properties. That fact reported before the court sale was ordered to be conducted W.P.(C).No.19833 OF 2009 Page numbers by public auction. Petitioner/third defendant filed an application with a petition to condone delay to review the order of the court to conduct the sale by public auction. Ext.P2 is the copy of that application, and Ext.P3 the petition to condone delay. Since those applications were not considered by the court below, he approached this court and filed a writ petition seeking issue of directions/orders to the court below for expeditious disposal of those petitions. This court passed Ext.P4 judgment directing the court below to dispose Ext.P4 within the time limit fixed. For one reason or other, without taking notice to the directions given by this court, the sale proceeded and item No.2 was sold in public auction and it was knocked down by the 9th respondent in the present writ petition. Before such sale was conducted, petitioner moved another writ petition before this court alleging nonconsideration of his petitions despite the W.P.(C).No.19833 OF 2009 Page numbers direction given under Ext.P4 judgment. By the time the writ petition was taken for consideration, sale of one of the items was already over and taking note of that subsequent event also, this court passed Ext.P5 judgment directing disposal of the review petition filed by the petitioner and to confirm the sale only subject to the result of the orders passed on such petition. In other words confirmation of the sale was directed to be kept in abeyance subject to the orders passed on the review petition of the petitioner. Ext.P5 is the copy of that judgment. In complying with the directions of the court under Ext.P5 judgment, the court below considered the review petition and also the petition for condoning delay, and after hearing both sides dismissed those petitions vide Ext.P6 order. Petitioner had also moved another application for setting aside the sale conducted over item No.2 under Order 21 Rule 90 R/w Section 147 and 151 of the Code of Civil Procedure. Ext.P7 W.P.(C).No.19833 OF 2009 Page numbers is the copy of that petition. That petition also after hearing both sides was dismissed by the court vide Ext.P8 order. The above writ petition has been filed challenging Ext.P6 order passed dismissing the review petition and also the condonation petition and Ext.P8 order dismissing the application moved for setting aside the sale conducted over item No.2 property. 2. I heard the counsel on both sides. The learned counsel for the petitioner submitted that, Ext.P6 order passed by the court below to conduct sale by public auction is against the provisions covered by Section 3 of the Partition Act and also it infringes Rule 234 of the Civil Rules of Practice. Sale conducted without considering Ext.P2 review petition according to the counsel was patently erroneous and unsustainable. So far as Ext.P8 order passed dismissing Ext.P7 application moved by the petitioner to set aside W.P.(C).No.19833 OF 2009 Page numbers the sale, it is the case of the petitioner, no opportunity was provided to substantiate the challenges canvassed to impeach the same. Challenge against Ext.P6 order dismissing the review petition demand out right rejection since the party by way of review was challenging the order of the court to conduct sale over one of the items involved in the suit. Order of the court to conduct sale was open to an appeal under Section 8 of the Partition Act. When a statutory appeal is provided for the reason that he had filed a review petition against the order of sale, a party will not get a right to challenge that order or the order passed on the review petition by invoking the extraordinary jurisdiction vested with this court. Though some directions have been given in the previous writ petitions filed by the petitioner before this court, it has to be examined with reference to the avoidance of the vested right of appeal by the party, how far it affects his right W.P.(C).No.19833 OF 2009 Page numbers to challenge the propriety and correctness of the order of sale passed by the court. Perusing the exhibits produced with the writ petition and also submissions made by the counsel at the time of hearing of the petition, I find that the order of sale was passed by the court on the basis of consensus arrived by the parties by which the petitioner/the third defendant who had occupation over the item number 2 property was provided temporary accommodation in item No. 1 building. So it is evident, the order of sale was passed, on consent of the parties though it has been disputed by the petitioner to canvass his challenges against Ext.P6 order rendered by the court. I find no reason to doubt the statements made by the court that the order for sale proceeded on the consent of the parties and on the arrangement made providing the temporary accommodation to the third defendant in item No.1 property. That is also a circumstance which would indicate that no challenge W.P.(C).No.19833 OF 2009 Page numbers at the instance of the third defendant, after having consented to conduct the sale by order of the court, is open and entertainable. So much so, the challenges canvassed against Ext.P6 order irrespective of the directions earlier given in the writ petitions are found to be meritless. As regards the challenge raised against the sale impeaching the correctness of Ext.P8 order dismissing his Ext.P7 application it is noted that the challenge was canvassed by invoking the provisions under Order 21 Rule 90 of the Code of Civil Procedure. Even though the sale was conducted by invoking the provisions of the Partition Act impeaching such sale is permissible only as provided under the Code of Civil Procedure, because the sale is conducted in accordance with the provisions of that Code. So much so, when the challenge is under Order 21 Rule 90 of Code of Civil Procedure, the petitioner is having an alternative efficacious remedy of challenging that W.P.(C).No.19833 OF 2009 Page numbers sale by way of appeal as provided by that Code. For that reason also, the extraordinary jurisdiction of this court to challenge Ext.P8 order is not available to the petitioner. In any view of the matter, I find no merit, and the writ petition is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv