IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 FAO.No. 144 of 2009() --------------------- AGAINST THE ORDER DATED 17/06/2009 IN EA.1250/08 IN EP.412/05 IN OS.327/1998 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT/PETITIONER/2ND JUDGEMENT DEBTOR -------------------------------------------------------------------- FRANCIS, S/O.CHEMMUNDA SIMON, SUBHASH NAGAR, CHIYYARAM VILLAGE AND DESOM, THRISSUR TALUK. BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.S.VINOD BHAT RESPONDENTS/RESPONDENTS: DECREE HOLDER ---------------------------- 1. ROY, S/O.KONIKKARA JOHN, NEAR PUTHENPALLY, ERINJERI ANGADI, CHEMBOOKAVU VILLAGE, THRISSUR TALUK, THRISSUR POST. 2. LISSY, W/O.LATE CHEMMANDA PAULSON, CHEMMUNDA HOUSE, NAVAJYOTHI NAGAR, NELLIKKUNNEL MURIYIL, OLLUKKARA VILLAGE, THRISSUR TALUK. 3. MERVIN PAULSON, S/O.LATE PAULSON, CHEMMUNDA HOUSE, NAVAJYOTHI NAGAR, NELLIKKUNNEL MURIYIL, OLLUKKARA VILLAGE, THRISSUR TALUK, (NAME WRONGLY SHOWN AS MELVIN). 4. JEEVAN, S/O.LATE PAULSON, CHEMMUNDA HOUSE, NAVAJYOTHI NAGAR, NELLIKKUNNEL MURIYIL, OLLUKKARA VILLAGE, THRISSUR TALUK. ADV. SRI.DINESH R.SHENOY FOR R1 SRI.G.HARIKRISHNAN (TRIPUNITHURA) FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON 26.11.2009 DELIVERED THE FOLLOWING: ORDER ON I.A.NO. 2093/09 IN F.A.O.NO. 144 OF 2009 DISMISSED SD/- K.M.JOSEPH, JUDGE SD/- M.L.JOSEPH FRANCIS, JUDGE 26.11.2009 /TRUE COPY/ K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 144 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of November, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by the petitioner/2nd judgment debtor, Francis, in E.A.No. 1250 of 2008 in E.P. No.412 of 2005 in O.S.No. 327 of 1998 on the file of the IInd Additional Sub Court, Trichur. The first respondent herein is the decree holder and respondents 2 to 4 are other judgment debtors in that E.P. 2. The facts of the case are briefly as follows. The first respondent filed the above suit for realisation of money alleged to be due from Sri. Varghese, who is one of the brothers of the appellant. Paulson is the other brother, upon whose demise, respondents 2 to 4 were brought on the party array as his legal representatives. It is the allegation of F.A.O. No. 144 of 2009 2 the plaintiff /1st respondent that Varghese had incurred debts on account of credit given by the plaintiff/1st respondent during the years 1993 to 1996. Varghese died in the year 1998. Subsequent to his death, the plaintiff/1st respondent filed the above suit. 3. Though it is accepted that there was no privity of contract between the plaintiff and the defendants, the claim for realisation of money from the appellant and respondents 2 to 4 was based on the premise that the interest of late Varghese devolved on the appellant and respondents 2 to 4. 4. The Sub Court, Thrissur found that Varghese owed money to the plaintiff. The decree specifically provided that the plaintiff/ 1st respondent can execute the decree against defendants therein only to the extent of any assets of deceased Varghese passing on to the defendants. An issue was raised in the said suit by the 1st respondent that Varghese was a legatee under the Will executed by Simon (the father of the appellant, late Varghese and late Paulson). F.A.O. No. 144 of 2009 3 The trial court in its judgment held that Varghese was not a legatee under the Will and hence had no interest in the properties taken in by the said Will. 5. Aggrieved by the judgment of the court below, the first respondent preferred a revision petition, C.R.P. 501/2005, before this Court and this Court, without issuance of notice to the appellant herein, modified the judgment dated 25.2.2003 of the Sub Court, Thrissur. While modifying the judgment, this Hon'ble Court held that Varghese was a legatee under the Will of Simon. 6. As the Order in C.R.P. 501 of 2005 was passed behind the back of the appellant, he obviously was not aware about the interference made by this Court in the Revision Petition. As per the decree of the Sub Court, Thrissur in O.S. 327 of 1998, the appellant, having not inherited any property upon the death of his brother Sri. Varghese, was not a party against whom execution proceedings could be taken for realization of money due from the F.A.O. No. 144 of 2009 4 assets of late Varghese. The appellant therefore did not foresee any execution proceedings being taken out against him. But in the year 2008, the appellant received notice in an application filed by the 1st respondent. The said application was filed by the 1st respondent with a prayer for taking delivery of the property, which belonged to the appellant and his brother late Paulson. The said property, which originally belonged to the father of the appellant, devolved upon the appellant and his brother, late Paulson, by virtue of the above said Will. According to the judgment of the trial court, it was clearly held that late Varghese had no interest in the properties taken in by the Will. But the 1st respondent proceeded against the very same property. 7. Upon receipt of notice on the application for delivery, the appellant made enquiries regarding the proceedings in EP 412/2005. The appellant then understood that he was set ex parte on the execution side on 5.6.2006. The appellant therefore filed F.A.O. No. 144 of 2009 5 two applications dated 13.11.2008, viz., E.A.1250 of 2008, to set aside the order setting him ex parte and E.A. 1247 of 2008 to condone the delay in filing the said petition. 8. In support of the said two applications, the appellant was examined as PW1. Accordingly evidence was let in to show sufficient cause that the appellant had no notice of execution, that the appellant was paralised for about 2 years from 2005, that there was collusion between the respondents to defeat the appellant and that the delay occurred not on account of any wilful or intentional act of the appellant. There was no contra evidence from the opposite side. The court below dismissed the applications by the impugned order. 9. The 1st respondent brought to sale about 7 cents of property, which is situated near 'Saraj Round' and the said property was purchased for an amount of about Rs.7 lakhs. The said property, it was found by the trial court, does not belong to late F.A.O. No. 144 of 2009 6 Varghese. One half of the share belongs to the appellant and the other half belongs to another brother late Paulson, whose legal representatives are respondents 2 to 4 herein. The court below has not considered the applications looking into the merits of the case and the application to condone the delay and to set aside the order setting the appellant exparte were dismissed. Aggrieved by the order of the court below, this appeal is filed invoking the provision of Order XLIII Rule 1(ia) of the Code of Civil Procedure. 10. Heard the learned counsel for the appellant and the learned counsel for the respondents. 11. The learned counsel for the appellant invited our attention to the decision of the Apex Court reported in Desh Bandhu Gupta v. N.L. Anand & Rajinder Singh ((1994) 1 SCC 131), in which it was held that service of notice to judgment debtor under Order 21 Rule 66(2) and 54(1-A) is mandatory and that sale without notice is a nullity. In the decision reported in F.A.O. No. 144 of 2009 7 Krishna Pillai v. Velayudha Kurup (1943 TLR 400 (FB) it was held that service of notice under Order 21 Rule 22 C.P.C. is mandatory and that execution proceedings held without such notice will be void. In the decision reported in Rajagopala Aiyar v. Ramanujachariyar & anr. (AIR 1924 Madras 431) it was held that, while an application for execution falling under Order 21 Rule 22 to which clause (2) of that Rule is not applied, a sale in execution is held without issuing notice provided for in clause (1) the sale is absolutely void and not merely voidable as against the person, to whom notice should have been but was not issued. 12. The learned counsel for the appellant invited our attention to the decision in Khoobehand Jain & anr. v. Kashi Prasad & ors. (AIR 1986 M.P. 66), in which it was held: “The decree holders filed an application for execution of a decree. Executing Court ordered to issue a warrant of attachment of movable property on F.A.O. No. 144 of 2009 8 furnishing a list of movable property. Since decree holders failed to submit the list, no warrant of attachment was issued. The Court adjourned the case awaiting the execution of warrant. On adjourned date, neither the decree holders nor their counsel appeared in the Court when the case was called out. The execution application was therefore, dismissed in default of appearance of decree holders. Decree holders submitted an application u/O. 21 R.106 for restoration of execution case and gave reason of their illness for their absence. They also submitted another application u/s. 5 of the Limitation Act for condoning delay in making restoration application. Dismissal of the said application was challenged. Held, that the date on which the execution application was dismissed for default of appearance of the decree holders, was not a date fixed for 'hearing' within the meaning of R.105. It was a date awaiting report as to execution of the warrant which was supposed to be issued on submission of a list of movable property by the decree holders within three F.A.O. No. 144 of 2009 9 days of the earlier order. Consequently, the dismissal of execution application was not under R.105(2) of O.21 and therefore, the provisions of R.106 are not attracted. The dismissal of the execution application in default of appearance is referable to inherent powers of the Court. Held further that, since the dismissal of the execution application was under inherent powers, the application for its restoration will be by invoking the inherent powers of the Court and in that event, no time limit is prescribed for invoking the inherent powers of the Court.” 13. Admittedly, the appellant is the second judgment debtor in the money decree in O.S.No. 327 of 1998 on the file of the Sub Court, Trichur. The first respondent/decree holder filed E.P. No. 412 of 2005 before the IInd Additional Sub Court, Trichur for execution of that decree. The petition schedule property, having F.A.O. No. 144 of 2009 10 an extent of 7 cents, was sold in court auction on 14.6.2007 and the sale was confirmed on 16.8.2007. E.A. 1250 of 2008 to set aside the ex parte order and E.A. 1247 of 2008 to condone the delay in filing that petition were filed by the second judgment debtor on 13.11.2008. 14. On perusing the lower court records, it is seen that E.P. 412 of 2005 was filed by the decree holder for realisation of an amount of Rs.12,85,378/- and Rule 22 notice was ordered on 23.8.2005 and that notice was served on the second judgment debtor, Francis, and he was set ex parte on 22.2.2006. On 22.2.2006, Rule 66 notice was ordered and it was served on him and he was set ex parte on 5.6.2006. Another Rule 66 notice was was again ordered on 26.9.2006 and that notice was personally served on the second judgment debtor, Francis, and he was set ex parte on 8.11.2006. The decree holder filed E.A.No.1331 of 2006 to attach the petition schedule property on 15.7.2006 in E.P.No. F.A.O. No. 144 of 2009 11 412 of 2005 and notice was personally served on the second judgment debtor on 18.8.2006. Therefore, it cannot be said that the second judgment debtor had not served with notice under Order 21 Rule 22 or Rule 66 or 54(1-A) of C.P.C. 15. Order 21 Rule 106 provides that an application to set aside the ex parte order in execution shall be made within 30 days from the date of the order and in the case of of an ex parte order the notice was not duly served within 30 days from the date when the applicant had knowledge of the order. 16. In the present case, notice under Rule 22, Rule 66 and 51 (1-A) were duly served on the appellant/second judgment debtor in appropriate time and he was set ex parte. Section 5 of the Limitation Act makes it clear that that section is not applicable to an application under any of the provisions in Order 21 C.P.C. Therefore the delay in filing the petition to set aside the ex parte F.A.O. No. 144 of 2009 12 order cannot be condoned. Therefore, the learned Sub Judge is justified in dismissing both the petitions. 17. Accordingly this appeal is dismissed. There is no order as to cost. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm