IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 7TH JULY 2011 / 16TH ASHADHA 1933 Ex.SA.No. 10 of 2004() ---------------------- AS.350/2001 of ADDL.DISTRICT COURT, THRISSUR OS.421/1997 of II ADDL.SUB COURT,THRISSUR (EA 815/99 IN EP 597/98) .................... APPELLANT/RESPONDENT/RESPONDENT ------------------------------------------------------------- N.V.ADAMMU, S/O.NARIKUZHIPARAMBIL BEERAVU, KAIPAMANGALAM VILLAGE DESOM, KODUNGALLOOR TALUK, THRISSUR. BY ADV. SRI.ROBSON PAUL SRI.C.A.CHACKO RESPONDENT/APPELLANT/PETITIONER ---------------------------------------------------------- MAHASUDARASANAM CORPORATION REP.BY RECEIVER ADVOCATE C.K.KUNCHIPORINCHU (I.P. 8/98 THRISSUR SUB COURT), THRISSUR - 3. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 7 / 7 / 2011 THE COURT ON 07/07/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Ex.S.A. NO. 10 OF 2004 =========================== Dated this the 7th day of July,2011 JUDGMENT Decree holder in O.S.421/1997 on the file of Sub Court, Thrissur is the appellant. Appellant filed E.P.597/1998 for execution of the money decree by sale of the immovable property of the judgment debtor which was attached. Meanwhile insolvency petition was filed before Sub Court, Thrissur as I.P.8/1998. The respondent was appointed the receiver. Getting information of the proposed sale in the execution petition respondent filed E.A.815/1999 under Rule 58 of Order XX1 of Code of Civil Procedure contending that he was appointed the receiver and in view of the pending insolvency petition , remedy of the decree holder is to approach the executing court and the property in the possession of the receiver in the insolvency proceedings cannot be sold. E.A.815/1999 was filed on 13.7.1999, as is clear from the seal of the court seen in the petition. But before taking up Ex.S.A.No.10/2004 2 E.A.815/1999, the property was sold on 13.7.1999 itself. The sale was later confirmed on 12.7.2001. Before the confirmation of sale, respondent filed E.A.1197/1999 under Rule 90 of Order XX1 of Code of Civil Procedure, to set aside the sale contending that there was material irregularity in the auction sale and therefore the sale is to be set aside. Learned Sub Judge took both the applications together and by common order dated 12.7.2001 dismissed both the applications. As is clear from the common order, E.A.815/1999 was dismissed for the reason that the application was filed after the property was sold and holding that therefore application under Rule 58 of Order XX1 of Code of Civil Procedure will not lie. E.A.1197/1999 was dismissed holding that there is no evidence to prove that there was any material irregularity. Though both the orders are appealable, one as a regular appeal and the other under section 96 of the Code of Civil Procedure, respondent did not file an appeal against the dismissal of E.A.1197/1999. A.S.350/2001 was filed before Ex.S.A.No.10/2004 3 District Court, Thrissur challenging the dismissal of E.A.815/1999. Learned District Judge while considering A.S.350/2001 took it as an appeal against both the orders. Confirming the findings of the executing court that E.A.815/1999 is not maintainable as the property was sold, the prayer for setting aside the sale under Rule 90 of Order XX1 of Code of Civil Procedure was considered. The appeal was allowed and the sale was set aside finding that the sale was vitiated by fraud. The decree holder filed the appeal challenging the order. 2. Learned counsel appearing for the appellant and respondent were heard. 3. When the order passed under E.A.1197/1999 is appealable and no appeal is filed, first appellate court should not have considered A.S.350/2001 as an appeal against E.A.1197/1999 and set aside the sale, as if the order challenged before the first appellate court is the order dismissing the petition filed under Rule 90 of Order XX1 of Code of Civil Procedure. To that extent the submission Ex.S.A.No.10/2004 4 of the learned counsel appearing for the appellant is perfectly correct. 4. At the same time the question is whether first appellate court could have dismissed E.A.815/1999 confirming the findings of the executing court, on the ground that petition will not lie as the properties were sold earlier to the filing of the petition. The argument of the appellant is that though the first appellate court dismissed E.A.815/1999, no second appeal was filed against the said dismissal and therefore in the appeal filed by the decree holder, correctness of the dismissal of E.A.815/1999 cannot be considered. I cannot agree with the submission. If A.S.350/2001 is to be treated as an appeal against E.A.815/1999 and that appeal is challenged before this court, this court is definitely competent to consider whether dismissal of E.A.815/1999 is correct. When the respondent sought to set aside the sale and by the impugned order in A.S.350/2001, learned Additional District Judge set aside the sale, there is no necessity for the respondent to Ex.S.A.No.10/2004 5 challenge that order. If the order passed by the District Judge is treated as an order in the first appeal against the order in E.A.815/1999 while supporting that order, respondent is entitled to contend that E.A.815/1999, should not have been dismissed as not maintainable and to that extent, the contention has to be considered. 5. The executing court dismissed E.A.815/1999 on the sole ground that the application was filed after the property was sold. As stated earlier E.A.815/1999 was filed on 13.7.1999. Therefore when the property was sold only on 13-7-1999, it cannot be said that the application was filed subsequent to the sale, though learned Sub Judge passed the first order in that application only on 15.7.1999. Evidently learned Sub Judge did not take note of the fact that an application was filed before the sale was conducted. Therefore E.A.815/1999 could not have been dismissed, without considering the application on merit. If that be so, the confirmation of that order by the first appellate court is not sustainable. As the Ex.S.A.No.10/2004 6 executing court has not considered E.A.815/1999 on merits, the order can only be set aside. Once that order goes, automatically the sale conducted on 13.7.1999, before the disposal of E.A.815/1999 cannot be sustained. In such circumstances, I find no reason to interfere with the order of the first appellate court setting aside the sale. Appeal is allowed in part. Confirming the order setting aside the sale, E.A.815/1999 is remitted to the executing court, Sub Court, Thrissur. The executing court is directed to consider E.A.815/1999 on merits. Only if it is found that the property is liable to be sold, it can be sold in auction. Parties are directed to appear before the executing court on 2.8.2011. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006