IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 OP(C).No. 1199 of 2011(O) ------------------------- AGAINST THE ORDER IN EP 90/2010 IN ARC.456/2001 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONERS : ---------------------- 1. K.RADHAKRISHNAN, S/O.KANDAMUTHAN, NATTUKAL, NALLEPULLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 2. K.RAMESH, S/O.KANDAMUTHAN, NATTUKAL, NALLEPULLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 3. K.SURESH, S/O.KANDAMUTHAN, NATTUKAL, NALLEPULLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): --------------- SADANANDAN, S/O.KRISHNAN, NARAYANANPOTTAKALAM, NALLEPPULLY, CHITTUR TALUK, PALAKKAD DISTRICT-678 101. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------- O.P.(C).No.1199 of 2011 --------------------------------------- Dated this the 5th day of April, 2011 JUDGMENT The respondent entered appearance. It is submitted by both parties that the Original Petition may be heard and disposed of. Accordingly, the Original Petition is being disposed of. 2. The Palakkad District Co-operative Bank Ltd. obtained a decree in A.R.C.No.456 of 2001 before the Joint Registrar of Co-operative Societies (General), Palakkad. That was a money decree. The respondent in A.R.C.No.456 of 2001 is one Kandamuthan, the father of the petitioners herein. Kandamuthan is still alive. Proceedings were initiated before the Joint Registrar for sale of three items of immovable properties. The sale officer conducted the sale. In the auction sale held on 12.8.2009, Sadanandan, the O.P.(C) No.1199/2011 2 respondent herein, bid in auction for the highest amount of ` 7,75,000/-. Sale was confirmed in favour of Sadanandan on 20.3.2010. Sale certificate was also issued in his favour. 3. Challenging the order confirming sale, Kandamuthan filed an appeal before the Government which was dismissed as per G.O.(Rt.) No.696/2010/Co-op. dated 9.11.2010 (Exhibit P4). Challenging Exhibit P4, Kandamuthan filed W.P.(C) No.36250 of 2010. It is stated that the said Writ Petition is pending disposal. 4. Meanwhile, the auction purchaser filed E.P.No.90 of 2010 (Exhibit P2) before the Sub Court, Palakkad under Rule 95 of Order 21 of the Code of Civil Procedure for delivery of the property sold in auction. In the Execution Petition, the petitioners herein, who are the children of Kandamuthan, were arrayed as respondents 2 to 4. The Execution Petition would indicate that the petitioners were also parties before the O.P.(C) No.1199/2011 3 Joint Registrar, which is not correct at all. No order or award was passed against the petitioners. Still, they were made parties in the Execution Petition. Exhibit P2 Execution Petition would indicate that the petitioners herein are in possession of the properties. Notices were issued to the petitioners. They entered appearance. They filed E.A.No.172 of 2011 before the executing court under Section 151 of the Code of Civil Procedure. The prayer in E.A.No.172 of 2011 is to accept the objections and to pass an order that the petitioner in the Execution Petition is not entitled to get delivery. In the affidavit accompanying the application, it is stated that the Execution Petition was posted to 17.2.2011 for objections. Though the petitioners sought for time to file objection, that prayer was not granted by the executing court and delivery was ordered. In such circumstances, E.A.No.172 of 2011 was filed. 5. The court below disposed of E.A.No.172 of 2011 by Exhibit P5 order dated 11th March, 2011. The executing court O.P.(C) No.1199/2011 4 dismissed the application. It is stated in Exhibit P5 order that the petitioners herein were impleaded in the Execution Petition as they resisted delivery. This finding is wrong. There is no case for the auction purchaser that an attempt was made to effect delivery and delivery was resisted by the petitioners. No application was filed by the auction purchaser under Rule 97 of Order 21 C.P.C. No application was filed by the petitioners herein as well under Rule 97 of Order 21 C.P.C. to adjudicate their claims. However, the court below passed a detailed order rejecting the contentions raised by the petitioners mainly on the ground that time was granted to Kandamuthan to pay off the award amount in instalments and he did not do so. All those events took place before confirmation of sale. Therefore, those facts are not relevant at all in deciding the right claimed by the petitioners. All sorts of unnecessary contentions were raised by the petitioners outside the scope of enquiry, and that too in a petition filed by the petitioners under Section 151 of the Code of Civil Procedure. O.P.(C) No.1199/2011 5 6. The procedure adopted in the case right from the beginning of the Execution Petition was erroneous. The petitioners should not have been made parties to the Execution Petition. If the petitioners resisted delivery, an application could have been filed by the decree holder under Rule 97 of Order 21 of C.P.C. Or else, even the obstructors could file an application under Rule 97 of Order 21 C.P.C. to adjudicate the right, title and interest claimed by them, as held by the Supreme Court in various cases. 7. Now the petitioners are faced with the order passed by the executing court. At the same time, their rights are not adjudicated. Enquiry that is to be conducted in the matter of obstruction and removal of obstruction to determine matters which are compulsorily determinable by the executing court under Rule 101 of Order 21 have not been done by the executing court. No evidence was adduced by any of the parties. Most probably, no opportunity was afforded to the parties. Delivery was ordered even when an opportunity for O.P.(C) No.1199/2011 6 filing objection was sought. The procedure adopted in the case and the order passed by the court below are unsustainable. 8. It is stated by the petitioners that they have filed O.S.No.293 of 2010 on the file of the court of the Subordinate Judge of Palakkad for partition claiming share in the properties which were sold in auction. The learned counsel for the auction purchaser submitted that going by the averments in the plaint, it can be seen that the claim put forward by the petitioners is unfounded. All these are matters to be considered at the time of enquiry under Rule 97 of Order 21 C.P.C. 9. In these circumstances, the order dated 11th March, 2011 is set aside. 10. The Execution Petition filed by the auction purchaser, as stated earlier, should have been against O.P.(C) No.1199/2011 7 Kandamuthan alone. Now, the petitioners having entered appearance and put forward their contentions, the Execution Petition can be treated as constituting an application under Rule 97 of Order 21 C.P.C. as well. The petitioners herein, who are respondents 2 to 4 in the Execution Petition, would be afforded an opportunity to file a detailed objection to the Execution Petition. Both parties will be afforded an opportunity to produce documents and to adduce evidence. The court below shall dispose of the matter after considering all the relevant aspects as expeditiously as possible. The Original Petition is allowed as above. K.T.SANKARAN JUDGE csl