IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 WP(C).No. 3565 of 2009(Y) ------------------------- OS.2346/1997 of PRL.MUNSIFF COURT,THRISSUR .................... PETITIONER(S): --------------- 1. VIJITHA, D/O. ULAHANNAN, AGED 34, NELLIKKAL HOUSE, CHANNOTH DESOM, PANANCHERY VILLAGE, THRISSUR. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.SHAJI P.CHALY RESPONDENT(S): --------------- 1.SAKTHAN KURIES AND LOANS (P) LTD., CHEMBUKKAVU VILLAGE, THRISSUR. 2. DAVIS PAUL, S/O. THEKINIYEDATH T.C. PAUL, KONIKKARA DESOM, MUKUNDAPURAM. 3. JUSTIN, S/O. NIRAPPEN N.V. KURUVILA, PATTIKKAD DESOM, PANANCHERY VILLAGE, THRISSUR. 4. BIJU JOSEPH, S/O. MUDUPLAKKAL JOSEPH, PATTIKKAD DESOM, PANANCHERY VILLAGE, THRISSUR. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 SMT.PREETHY KARUNAKARAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.3565/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CERTIFICATE OF SALE ISSUED TO THE PETITIONER BY THE REVENUE DIVISIONAL OFFICER, TRICHUR DATED 12.6.2000. EXT.P2: COPY OF THE ENCUMBRANCE CERTIFICATE ISSUED BY THE SUB REGISTRAR TO THE PETITOINER DATED 15.11.2001. EXT.P3: COPY OF THE APPLICATION, E.A.NO.3062/2004 IN E.P.NO.993 OF 1999 IN O.S.NO.2346 OF 1997 ON THE FILE OF THE MUNSIFF COURT, THRISSUR. EXT.P4: COPY OF THE ORDER DATED 2.1.2009 IN E.A.NO.3062/2004 IN E.P.993/1999 IN O.S.NO.2346/1997, MUNSIFF'S COURT, THRISSUR. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.3565 OF 2009 (Y) ----------------------------------- Dated this the 1st day of October, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records relating to Ext.P4 order in E.A.No.3062 of 2004 in E.P.No.993 of 1999 in O.S.No.2346 of 1997 on the file of the Munsiff's Court, Thrissur dated 2.1.2009 and set aside the same; ii. to quash Ext.P4 order by the issue of a writ of certiorari or any other writ or order. iii. to declare that the petitioner's possession and enjoyment of the property indicated in Ext.P1 sale certificate cannot be interfered with by the 1st respondent or anyone claiming under it pursuant to the court sale dated 19.6.2002 stated to have been made in execution of the decree in O.S.No.2346 of 1997 on the file of the Munsiff's Court of Thrissur. iv. to set aside Ext.P4 order and direct WPC.3565/09 2 the Munsiff's Court, Thrissur to pass fresh orders therein in the light of the law relating to adjudication of claims by strangers not bond by the decree before they are actually dispossessed; v. to declare the petitioner's title and possession, and hold that the same cannot be interfered with by the court sale in O.S.No.2346 of 1997 conducted on 19.6.2002; vi. to set aside the sale conducted by the Munsiff's Court, Thrissur in O.S.No.2346 of 1997 on 19.6.2002 and hold that the property taken in by Ext.P1 is not affected by such sale; vii. to hold that the 4th respondent had no saleable interest in Ext.P1 property on 19.6.2002 when the same was sold by court in execution of the decree in O.S.No.2346 of 1997 on the file of the Munsiff's Court, Thrissur and therefore the petitioner's title and possession are indefeasible. 2. In execution of a decree for money, passed in O.S.No.2346 of 1997 on the file of the Principal Munsiff's Court, Thrissur, two items of property of the judgment debtors, together having an extent of 53.55 ares were brought to sale in the execution proceedings. The decree holder knocked down the bid in auction of the sale of the properties WPC.3565/09 3 towards the decree debt due. The decree holder/auction purchaser is the 1st respondent in the writ petition. After the sale was confirmed and delivery of the properties sold was ordered, at that stage, the present writ petitioner moved an application setting forth a claim over that properties on the basis of obtaining title, right and interest under a previous revenue sale. The application setting forth a claim was filed quoting the provisions of Order XXI Rule 90 and Section 151 of the Code of Civil Procedure. Evidence was recorded on the claim raised by the petitioner, and after adjudication of the right claimed, the execution court passed Ext.P4 order dismissing the claim holding that, at the instance of the petitioner, the sale cannot be set aside under Order XXI Rule 90 of CPC. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner and also the 1st respondent/the decree holder/the auction purchaser. The WPC.3565/09 4 learned counsel for the petitioner submitted that though the provisions quoted by the petitioner to claim right over the property covered by the sale was under Order XXI Rule 90 of CPC, the adjudication of that claim can proceed only under Order XXI Rule 97 of CPC. The court below, after such adjudication, has come to the finding on the materials produced that the claim raised by the petitioner is sustainable, but, on the technical ground, at the instance of the petitioner, the sale cannot be set aside, the application was dismissed. The learned counsel for the petitioner would also submit that in Ext.P3 application moved, the relief claimed was that sale was not binding on the petitioner and not for setting aside the sale as covered by Order XXI Rule 90 of CPC, subject to one of the two grounds or both covered by that rule. So much so, according to the learned counsel, the impugned order passed by the learned Munsiff (Ext.P4) suffers from jurisdictional infirmity, and thus amenable to the visitorial jurisdiction vested with this Court under Article 227 of the Constitution of India. On that other hand, the learned counsel for the 1st respondent contended that the Code provides a vested WPC.3565/09 5 right to the petitioner, who has raised a claim over the properties sold to challenge the propriety and correctness of the order passed by the execution court by way of an appeal, because the order passed in the claim petition irrespective of the provisions quoted thereunder, according to the counsel, has to be deemed to be a decree from which an appeal is provided by the court. So much so, without going into the merits of Ext.P4 order, this Court has to direct the petitioner to vindicate her rights including the challenges against Ext.P4 order in appropriate proceedings as provided by law. 4. After considering the submissions made by the counsel on both sides at length with reference to the facts and circumstances presented and also Ext.P4 order imputed in the writ petition, I find considerable force in the submissions made by the learned counsel for the 1st respondent/decree holder/auction purchaser. True, the petitioner has quoted a wrong provision while setting forth a claim over the properties sold in execution, but, what was canvassed was her title, right and interest over the property, contending that the judgment WPC.3565/09 6 debtor had no saleable interest over the property, when it was brought to sale, and so much so, the sale is not binding and the claim raised by her has to be allowed. Even if the claim petitioner has not made out a specific prayer for upholding her claim, but, only sought an order to the effect that the sale is not binding, when an adjudication in a petition on a claim raised over the property sold by the court emerges for consideration, it has to satisfy the questions to be determined under Order XXI Rule 101 of the CPC. Order so passed on the claim is to be treated as a decree as covered by Section 2 (2) of the CPC. Order XXI Rule 103 of CPC specifically states where any application has been adjudicated under Rule 98 or Rule 100 of CPC, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. So much so, Ext.P4 order passed by the learned Munsiff, treating the application filed by the petitioner as a claim petition raised over the property sold in execution is to be deemed as a decree, and any challenge thereof is provided by the Code by way of an appeal. I do not want to express any opinion on the merits of Ext.P4 order WPC.3565/09 7 passed by the learned Munsiff. But I make it clear that Ext.P3 application has to be treated as one filed under Order XXI Rule 97 of CPC by the petitioner, and it has to be dealt with as such, and so much so, Ext.P4 order has to be treated as a decree passed in a claim petition open to an appeal. It is open to the petitioner to challenge Ext.P4 order by way of an appeal as provided by law. The period of time taken by the petitioner during the pendency of the writ petition shall be taken note by the court, to which, an appeal, if any, is presented to extend the benefit of Section 14 of the Limitation Act, as there is nothing to indicate that the present proceedings prosecuted was not bona fide. By virtue of the interim order passed in the writ petition delivery of the properties sold in auction had been kept in abeyance till date. To provide the petitioner, a grace period to prefer an appeal against Ext.P4 order, I direct the execution court to keep in abeyance the delivery of the properties for a further period of six weeks from the date of this judgment. I make it clear that the petitioner has to present her appeal, if any, against Ext.P4 order, within a further period of three weeks to claim the benefit of WPC.3565/09 8 Section 14 of the Limitation Act as indicated above, but, the decision to extend him the benefit thereunder has to be passed by the appellate court on its merits. Subject to the above observations, this writ petition is disposed. S.S.SATHEESACHANDRAN JUDGE prp