IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 FAO.No. 198 of 2006() --------------------- AGAINST THE ORDER DATED 13/12/2005 IN E.A.1551/05 AND E.A. NO.2396/2005 DATED 31.5.2006 IN E.P.531/02 IN OS.1284/1995 of II ADDL.SUB COURT,THRISSUR .................... APPELLANTS/PETITIONERS/JUDGMENT DEBTORS ----------------------------------------------------------- 1. KALYANI, W/O.PARAMESWARAN, KANIYARKODE VILLAGE, TALAPPILLY TALUK, THRISSUR DIST. 2. SHOBHANA, D/O.KALYANI, DO. DO. 3. PARASURAMAN, S/O.KALYANI, DO. DO. 4. PRASANNAN, S/O.KALYANI, DO. DO. 5. MURALI, S/O.KALYANI, DO. (NAME OF THE APPELLANT NO.3 WRONGLY TYPED AS PARAMESWARAN IN ORDER DT.13/12/05). BY ADV. SRI.M.K.DILEEP KUMAR RESPONDENT: -------------------- DHAKSHINAMURTHY, S/O.RAMASWAMY CHETTIAR, KANIYARKODE VILLAGE, TALAPPILLY TALUK, THRISSUR DIST. BY ADV. SRI.ARUN KUMAR.P FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON 09/12/2009 DELIVERED THE FOLLOWING: ORDER ON I.A. NO: 3353/2006 & I.A. NO: 3443/2008 IN I.A. NO: 3353/2006 IN F.A.O. NO: 198 OF 2006 DISMISSED. SD/- K.M.JOSEPH (JUDGE) SD/- M.L.JOSEPH FRANCIS (JUDGE) 9.12.2008 K. M. JOSEPH & JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. NO: 198 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th Day of December, 2009. JUDGMENT M. L. Joseph Francis J., This appeal is filed by the petitioners/ Judgment debtors in E.A. No: 1551/05 in E.P. No: 531/2002 in O.S. No: 1284 of 1995 on the file of Second Additional Sub Court, Thrissur. The respondent herein is the respondent/ decree holder in that petition. E.A. 1551/05 is a petition filed by the judgment debtors in E.P. No: 531/2002 for setting aside the sale under Order 21 Rule 90 CPC. 2. The averments in E.A.No.1551/2005 can be summarised as follows: The respondent has sought for the recovery of Rs.62,443/- and towards that claim, the appellants have deposited an amount of Rs.25,000/- going by the direction of this Court in F.A.O. NO: 198 OF 2006 :2: F.A.O. 134/2003. By the said payment the liability got reduced to 2/3 amount. The immovable property brought for the sale is having an extent of 25 cents. In the counter it is submitted that the value of the property per cent would fetch Rs.15,000/- and therefore the small portion of the property is required to discharge the decree debt. Appreciating it, the lower court has directed the appellants to file sketch and schedule of 15 cents of the property excluding the remaining 10 cents, which was readily complied. Thereafter the lower court has permitted the appellants to effect private sale, but they could not perform it. Later, ignoring the factual position, the lower court has ordered the sale of the 25 cents of the property itself upon the mistaken impression that the appellants have failed to submit the reduced extent and sketch of the property and also the attempt for private sale. 3. As the sale of the property of 3 or 4 cents is sufficient to discharge the decree debt putting the whole property in sale, the entire sale process got vitiated. Where the portion of the property alone is sufficient, subjecting the whole property sale amounts to a F.A.O. NO: 198 OF 2006 :3: sheer irregularity and accordingly the sale is vitiated. 4. The respondent did not file any counter to the petition for setting aside the sale. Learned Sub Judge on considering the matter, dismissed the petition and confirmed the sale and ordered the issuance of sale certificate. The petitioner filed E.A. No: 2396 of 2005 for reviewing that order, which was also dismissed. Being aggrieved by that order in E.A. No: 1551 of 2005 and E.A. No: 2396 of 2005, the petitioners filed this appeal. 5. Heard the learned counsel for the appellants and the learned counsel for the respondent. 6. The above E.P. No: 531 of 2002 was filed by the decree holder against the judgment debtors for realisation of Rs.62,443/- with interest and cost by the attachment and sale of petition schedule property having an extent of 25 cents belonging to the judgment debtors. In that execution petition, the judgment debtors remained exparte. Judgment debtors filed an application to set aside the order, which was dismissed. Against that order, judgment debtors approached this court by filing F.A.O. No: 134 of 2003 F.A.O. NO: 198 OF 2006 :4: which was allowed upon condition that they should deposit an amount of Rs.25,000/- before the lower court. 7. Judgment debtors complied with the order and accordingly the exparte order was set aside enabling the judgment debtors to file counter against the execution petition. In that counter, it is stated by the judgment debtors that selling the entire of 25 cents is not required for discharging decree debt and that the property would fetch Rs.15,000/- per cent and therefore selling a portion of that property would be sufficient to discharge the decree debt. Appreciating the contention of the judgment debtors the execution court by order dated 14.3.2005 directed the judgment debtors to produce schedule of 15 cents of property with sketch. On 29.3.2005 the judgment debtors produced rough sketch of 15 cents of property and the judgment debtors were permitted to do private sale of 15 cents of property for paying the entire the decree amount within two months. Since the judgment debtors failed to comply with that order, the execution court on 17.5.05 ordered the sale of the entire property. Against that order dated 17.5.2005 the judgment debtors F.A.O. NO: 198 OF 2006 :5: filed W.P. (C) No: 23703 of 2005 under Article 227 of Constitution of India before this Court. In that W.P.(C), this court granted interim stay for one month on 10.8.2005. On 26.9.2005, this court extended interim stay by six weeks, so as to enable the petitioners / judgment debtors to deposit the balance amount due as per the decree. On 17.11.2005, this court dismissed that W.P.(C), on the ground that the petitioners/ judgment debtors did not comply with the order to deposit the balance amount due under the decree. Since that W.P.(C) is dismissed without considering the legality of the order under challenge on merits, that judgment in that W.P.(C) is not a bar for entertaining the present F.A.O. challenging the order in E.A. No: 1551 of 2005, which was filed by the petitioners/ judgment debtors for setting aside the sale under order 21 Rule 90 C.P.C. E.A. No: 1551 of 2005 was dismissed as per order dated 13.12.2005. That order was not challenged in W.P.(C) No: 23703 of 2005, which was dismissed on 17.11.2005. In this F.A.O., the appellants/ judgment debtors also challenge the order in E.A. No: 2396of 2005 dated 31.5.2006, which was a petition filed for F.A.O. NO: 198 OF 2006 :6: reviewing the order in E.A. No: 531 of 2002 dated 13.12.2005. 8. Learned counsel for the appellants invited our attention to the decision of this court reported in Gnan Das v. Paulin Moraes (1998(2) KLT 88), in which it was held: “The executing court will get jurisdiction to sell properties attached by it only to the point at which the decree is fully satisfied. Beyond that there is no jurisdiction. In all execution proceedings, court has to decide as to whether it is necessary to bring the entire attached property to sale, or such portion thereof, as it may seem necessary to satisfy the decree. Court should itself make comparison with regard to the value of the property attached and the decree amount. When the property attached is large, and the decree to be satisfied is small, a duty is cast on the court to ascertain whether by selling the small portion, the decree would be satisfied. Admittedly judgment debtor failed to raise those contentions before the proclamation of sale was drawn up. Therefore, the question that arises for consideration is as to whether he is disabled from raising those contentions after the sale was effected. Two items of properties, which are the subject matter of sale are 40 cents of land and a F.A.O. NO: 198 OF 2006 :7: building thereon, and three cents of land with a building thereon. The decree amount comes around to Rs.60,000/-. We do not find at any point of time, the executing court has addressed itself to the question as to whether one item of property would satisfy the decree amount. Executing court has got a statutory duty to address itself to that question, when two or more properties are included in the proclamation of sale. If the property which is sought to be sold is considerably large, compared to the decree amount, the Executing Court has to consider the question as to whether by sale of a portion of the land, the decree would be satisfied. No action of the court or its officers should be such as to give rise to the criticism that it was done in an indifferent or casual way. In other words, it is incumbent on the court to be scrupulous in the extreme. Non- discharge of its statutory duty renders the entire proceedings illegal and without jurisdiction. It is a mere irregularity, but a matter which goes to the very root of jurisdiction of the court. The court below has committed a grave error and acted without jurisdiction in not addressing itself to the question as to whether one item of property or portion of the properties if sold would satisfy the decree amount. We, therefore, hold that the sale conducted on 12.4.1996 is not F.A.O. NO: 198 OF 2006 :8: in confirmity with the statutory requirement, and is therefore, illegal and without jurisdiction. We are of the view that O.XXI, R.90(3) would not bar such a petition, since the question of very jurisdiction of the court is involved. Court can even suo moto consider such question, if it has committed an illegality which goes to the very root of the jurisdiction of the court. Even if under O.XXI, R.89 or 90 or 91, no application is filed, court can look into the question whether it has acted in excess of its jurisdiction, when the question of confirmation of sale comes up for consideration, under O.XXI, R.92”. 9. In the present case, the execution court was satisfied that selling of 15 cents of property was sufficient to discharge the decree debt. Even then the execution court sold the entire 25 cents of property for a meagre amount of Rs.68,100/-. In view of the principles laid down in the decision cited above, we are of the view that the court below has acted beyond its jurisdiction in selling the entire item of property. Therefore, the lower court is not justified in dismissing the E.A.No: 1551 of 2005 filed for setting aside the sale and E.A. No: 2396 of 2005 filed for reviewing that order. Accordingly, this appeal is allowed and the order dismissing the F.A.O. NO: 198 OF 2006 :9: E.A. No: 1551 of 2005 is set aside and that E.A. is allowed and the sale with regard to the petition schedule property is set aside and E.P. No: 531 of 2002 on the file of Second Additional Sub Court, Thrissur is restored to file and the decree holder is allowed to realise the balance amount in accordance with the law. There is no order as to cost. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/