IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 22ND DECEMBER 2010 / 1ST POUSHA 1932 FAO.No. 207 of 2009() -------------------------------- EA 565/2007 IN EP 112/1995 IN OS.348/1987 of ADDL.SUB COURT, NORTH PARAVUR .................... APPELLANT/PETITIONER -------------------------------------- ANNIE JOHNY, W/O.LATE JOHNY, THAIPARAMBIL HOUSE, KODAR LANE, BRIDGE ROAD, ALUVA. BY ADV. SRI.K.RAMACHANDRAN, SRI.S.SREEDEV. RESPONDENT/RESPONDENT: ------------------------------------------- BAHULEYAN, S/O.T.K. NARAYANAN, GURUPRASADAM, ANDAPER COMPOUND, ALUVA KARA AND VILLAGE, P.O.ALUVA. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR, SRI.GEEN T.MATHEW. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 30/11/2010, THE COURT ON 22/12/2010 DELIVERED THE FOLLOWING: rs THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 207 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of December, 2010. JUDGMENT Bhavadasan, J, A litigation, which started in 1987 still lingers on with no end in sight in the near future. 2. It all started when the respondent herein instituted O.S. 348 of 1987 before the Sub court, North Paravur, initially as one for specific performance, later confined to one for return of advance amount. Initially the suit was against Sri. Peter, the predecessor in interest of the appellant and others herein. The original defendant died and his legal heirs were brought on the party array as defendants 2 to 4. The plaintiff could not get the summons served on the third defendant and ultimately he chose to give up his reliefs as against him and confined his prayer as against defendants 2 and 4. It appears that they remained ex-parte and a decree for a sum of Rs.50,000/- with 12% interest followed. The decree holder then filed E.P.213 of 1990 for realisation of a sum of Rs.78,390/- with F.A.O.207/2009. 2 future interest and costs. It may be noticed that the decree was charged on the property involved in these proceedings. In execution of the decree, sale was ordered on 22.10.1992 and that was challenged before this court in C.R.P. 2574 of 1992. That revision petition was disposed of by order dated 18.1.1993 adjourning further proceedings in execution for a period of four months from the date of order, within which period , the second judgment debtor was given a right to settle the amount and to have the decree satisfied. It is claimed that on 15.1.1993 an amount of Rs.10,000/- had been paid. However, the benefit of the order in the CRP was not availed of by the judgment debtors. 3. The sale was held on 1.10.1993 for a sum of Rs.89,529/- and the decree holder purchased the same. That sale was challenged by judgment debtors 2 and 4 by filing E.A.843 of 1993 and that was disposed of by the executing court confirming the sale, but granting time to the judgment debtors by way of concession to pay the decree amount on or before 24.3.1994. The said order was challenged in C.M.A. 152 of 1994 before this court. Taking note of the submission made by the judgment debtors that they were F.A.O.207/2009. 3 frantically trying to raise the money for paying the decree debt, by judgment dated 14.6.1994 this court allowed the judgment debtors to approach the executing court for enlargement of time. The judgment debtors filed E.A. 545 of 1994 before the executing court on 22.11.1994 seeking to have the decree amount discharged by instalment payments. The executing court dismissed the said application on 22.11.1994 and the sale was confirmed on the same day. On 30.1.1995, the sale certificate was issued. Thereafter, the decree holder filed E.P.112 of 1995 for delivery of the property. 4. It appears that the second judgment debtor filed E.A.202 of 1996 before the executing court seeking that the property in his possession may be demarcated as it was lying contiguously with the property owned by the fourth defendant in the suit and the fourth defendant had additional share of 1/3rd share as per a gift deed. That application was dismissed by order dated 3.4.1996. The said order was challenged in C.R.P. 1073 of 1996 before this court. That was disposed of by observing that in the earlier C.R.P. and C.M.A. filed by them before this court, the present contentions were F.A.O.207/2009. 4 not taken therein and accordingly C.R.P. 1073 of 1996 was dismissed. 5. It appears that one Leelamma, the sister of the first defendant, late Peter, filed E.A. 451 of 1996 in E.P. 112 of 1995 in O.S. 348 of 1987 claiming 1/10th right over the property contending that the decree holder was not entitled to get delivery of possession of the property. The said application was dismissed on 11.9.1998. 6. It is claimed by the appellant herein that the judgment debtors had also contended that the decree holder is entitled to only 2/3d share over the property since the decree was confined to defendants 2 and 4 and as the third defendant had a share in the property since there was no decree against him, his share could not be brought to sale. Meanwhile, Leelamma as against the order in E.A. 451 of 1996, filed E.F.A. 30 of 1998 before this court and this court by judgment dated 10.11.1998 set aside the impugned order and remanded the matter to the executing court for fresh consideration. After remand, the executing court upheld the contentions of Leelamma. Against the said order, the decree holder F.A.O.207/2009. 5 came up in E.F.A.24 of 1999 before this court and the appeal was allowed and it was held that Leelamma had no subsisting rights over the property and the earlier order was restored and the delivery application was restored to file. It was thereafter that E.A. 548 of 2000 was filed seeking delivery and that was allowed. Against the said order, judgment debtors 2 and 4 filed C.R.P. 2622 of 2000 before this court. Therein, they arrayed third defendant in the suit as second respondent and this court by order dated 29.11.2000 found that the property charged and purchased by the decree holder can be delivered to the decree holder. The decree holder filed R.P. 573 of 2000 before this court. In the review petition, this court held that defendants 2 and 4 cannot resist the claim for delivery and the order for delivery of the entire property was passed by the executing court on the basis of the rights said to belong to the third defendant and the order of the executing court was confirmed by order dated 18.1.2001. Even though S.L.P. 3959 of 2001 was filed before the Supreme Court, that was dismissed by order dated 29.11.2001. 7. It is claimed by the appellant herein that this court had occasion to consider whether the 1/3rd right over the suit property F.A.O.207/2009. 6 was not available for sale by order dated 13.1.2004 in Ex.F.A.29 of 2002 by this court. In the meanwhile, one Varghese, S/o. Joseph claiming to be a legatee under the Will executed by the third defendant contended that the sale could not be proceeded with, as the property has devolved on him. He also filed O.S. 378 of 2001 for partition and separate possession of 1/3rd share over the suit property. The said Varghese filed O.P.19597 of 2002 to direct the Additional Sub Court, North Paravur to pass orders on I.A. 4218 of 2001 in O.S.348 of 1987 and the obstruction petition in O.S.348 of 1987 before the Additional Sub Court, North Paravur. That Original Petition was disposed of by order dated 23.7.2002 directing the executing court to consider the contentions raised by him. The executing court dismissed E.A. 851 of 2001 in E.P.112 of 1995 on 12.8.2002 stating that there is no need to decide the question afersh since the High Court had taken a view in the R.P. with regard to the matter. Even though that was challenged before this court by Varghese, the appeal was dismissed by order dated 13.1.2004 observing that if Varghese had filed any application under Order 21 Rule 97, the said application may be disposed of in accordance with law by the executing court. F.A.O.207/2009. 7 8. Varghese then filed E.A. 570 of 2002 claiming right over the property and resisting delivery. E.A. 570 of 2002, E.P. 112 of 1995 and O.S. 348 of 1987 before the Sub Court, North Paravur were tried jointly and the court below dismissed the suit and the execution application by a common judgment dated 14.7.2004. The order in the execution application and the judgment and decree of the Sub Court, North Paravur were challenged before this court as per Ex.F.A. 33 of 2004 and R.F.A.614 of 2005. A common judgment was rendered on 30.6.2006, by which this court allowed the present appellant to file a fresh application by depositing in the execution court the amount as contemplated under Order XXI Rule 89 C.P.C. In compliance with the said order, it is claimed by the appellant that she had deposited the amount and filed E.A.565 of 2007 for necessary reliefs. That E.A. was opposed by the decree holder stating that it is barred by limitation. On 3.7.2008 E.A. 565 of 2007 was dismissed by the Sub Court stating that the application is barred by limitation. F.A.O.207/2009. 8 9. According to the appellant, after finding that the requisite amount had been deposited by the appellant, the court below had erred in dismissing the application on the ground of limitation. It is interesting to note that in the meanwhile the initial finding of the execution court that the present appellant had actually deposited the correct amount was sought to be reviewed by filing E.A. 855 of 2008, the executing court dismissed the same by order dated 22.7.2008. The appellant has come to know that the said order was challenged before this court in W.P.(C)25410 of 2008. That was disposed of by order dated 22.8.2008. But the appellant claims that she had no notice of the same. Thereafter the present order dated 7.8.2009 was passed. 10. Learned counsel appearing for the appellant contended that even going by the decree only 2/3rd share over the property, which consists of 6 cents and a house, could have been brought to sale. According to learned counsel, decree holder had given up his rights as against the third defendant and therefore his share in the property could not be touched. It was contended that this contention on behalf of the appellant was infact upheld at one F.A.O.207/2009. 9 stage of the proceedings. Even otherwise, according to learned counsel, it is trite that the charge granted as per the decree could have force only as against the 2/3rd share owned by defendants 2 and 4. Viewed from any angle, the proper course ought to have been to get the share of defendants 2 and 4 sold and thereafter seek partition of the property. At any rate, according to counsel, it is not legal for the decree holder to seek delivery of the entire property. It was also contended that the decree amount was only Rs.50,000/- with interest and as on the date of the filing of the execution petition, the amount due was Rs.78,390/- with future interests and costs. It was quite unnecessary to sell the entire property in order to satisfy the decree. The execution court has not applied its mind and it is also contended that the procedure under Order 21 Rule 64 has not been followed and that, infact vitiates the sale and entire proceedings thereafter. Learned counsel also contended that the court below has erred in law in understanding the true purport of the judgment in Ex.F.A.33 of 2004 rendered by this court. In paragraph 14 of the said judgment what is stated is that the appellant before this court is permitted to deposit the entire amount contemplated under Order 21 Rule 89 and thereafter to file the petition seeking F.A.O.207/2009. 10 necessary reliefs. The court below, according to learned counsel, has construed it as a permission granted by this court to file a petition under Order 21 Rule 89. It is not so. Apart from all these facts, according to learned counsel, this is a case where a widow and a maiden are left with no remedy, but to approach the court to save a shelter for them. Learned counsel contended that if delivery is effected, the appellant will be thrown to streets. 11. Learned counsel also pointed out that it is not as if even after the sale has been confirmed, it could not be set aside. In support of his contention, learned counsel relied on the decision reported in Kharati Lal v. Raminder Kaur ((2000) 3 SCC 664). Learned counsel also relied on the decision reported in Gnan Das v. Paulin Moraes (1998(2) KLT 88) to contend for the position that it is the duty of the court under Order 21 Rule 64 to ascertain whether the entire property needs to be sold. Having not done so, the sale is vitiated. As far as the order in W.P.(C) 25410 of 2008 is concerned, on which heavy reliance is placed by the decree holder, learned counsel relied on the decision reported in Thambi v. Mathew (1987 F.A.O.207/2009. 11 (2) KLT 848) and pointed out that since there was no notice of the proceedings to the appellant, she is not bound by the same. 12. Learned counsel appearing for the contesting respondent before this court on the other hand contended that the contentions taken by the appellant before this court are devoid of merits. The interpretation now sought to be given to paragraph 14 of the judgment in Ex.F.A.33 of 2004, according to learned counsel, is mischievous. According to learned counsel, even though the time for filing the petition under Order 21 Rule 89 could not be extended by the appellant, even assuming that this court had done so, the application in pursuance to the said order was filed one year thereafter and on that ground also the appellant is not entitled to any relief. Counsel pointed out that it is trite that having taken recourse to Order 21 Rule 89 initially and failed in that attempt and then could not take recourse under Order 21 Rule 90. After having done that also, the appellant cannot now revert back to Order 21 Rule 89. The judgment debtors as well as the predecessors in interest have taken all possible steps to forestall the execution proceedings and they had failed in their attempts. In the proceedings before this F.A.O.207/2009. 12 court and before the apex court, it was ordered that the entire property be delivered. Therefore, the contention now raised that 1/3rd share of the property cannot be delivered has no merits. 13. In support of his contention that Order 21 Rule 89 cannot now be urged, learned counsel relied on the decision reported in Ittiathi Gopalan v. Nani Amma Ammukutty Amma (AIR 1957 Trav.-Co. 107), Joginder Kaur v. Financial Commissioner, Punjab (AIR 1975 Punjab and Haryana 15), Prakash Kaur v. Sandhooran (AIR 1979 Punjab and Haryana 36), Pathummakutty v. Thekkechalil Kathiyumma (AIR 1990 Kerala 286) and Mangal Prasad v. Krishna Kumar (AIR 1977 Allahabad 147). 14. Learned counsel also contended that the time fixed by the statute for filing an application under Order 21 Rule 89 is sixty days. It is well settled that Section 5 of the Limitation Act had no application to the execution proceedings and therefore there is no question of extending the time. If the application was not filed within the time stipulated, that was the end of the matter. In support of his contention, he relied on the decisions reported in Thangammal v. K. F.A.O.207/2009. 13 Dhanalakshmy (AIR 1981 Madras 254), Kathyee Cotton Mills Ltd. Alwaye v. Padmanabha Pillai (1957 KLJ 1167), Mohan Lal v. Hari Prasad Yadav ((1994) 4 SCC 177), Pathummakutty v. Thekkechalil Kathiyumma (AIR 1990 Kerala 286), Francis v. John Britto (2004(3) K.L.T. 1113), Challamane Hunchha Gowda v. M.R. Tirumala ((2004) 1 SCC 453) and Munni Lal v. Smt. Sona (AIR 1982 Allahabad 29). 15. According to learned counsel appearing for the contesting respondent, apart from the fact that the order to deliver the entire property had been confirmed by the apex court, the actual right of the third defendant was lost by sale and nothing remained thereafter. After the sale had been confirmed, the challenge by the judgment debtor cannot be countenanced. In support of his contention, learned counsel relied on the decision reported in Pathummakutty's case (supra), Chowdhari Abdul Subhan Sahib v. Kante Ramanna (AIR 1945 Madras 161), Mohammad Umar v. Prem Singh (AIR 1947 Lahore 100), Sagar Mahila Vidyalaya, Sagar v. Pandit Sadashiv Rao Harshe ((1991) (3) SCC 588), F.A.O.207/2009. 14 Pattam Khader Khan v. Pattam Sardar Khan ((1996) 5 SCC 48) and Janak Raj v. Gurdial Singh (AIR 1967 SC 608). 16. Learned counsel emphasized that even though several opportunities were given by the courts in various proceedings to the judgment debtors to wipe off the decree debt by paying the amount, they did not avail any of those opportunities, instead, they have been resorting to dilatory tactics to keep the decree holder at bay. The decree was obtained, according to learned counsel, as early as on 11.12.1989 and the decree holder is still to reap the fruits of the decree. May be it is harsh on the appellant. But, that is not a justification to hold in favour of the appellant. The sale had been confirmed and delivery had been ordered. There is no merit, according to learned counsel, in any of the contentions taken by the appellant and the appeal is only to be dismissed. 17. As far as the legal principles relied on by the counsel on both sides, there can be no quarrel. One cannot doubt those propositions. F.A.O.207/2009. 15 18. The appellant places considerable reliance on the judgment rendered by this court in Ex.F.A. 33 of 2004 and R.F.A. 614 of 2005. Those proceedings were disposed of by a common judgment dated 30.6.2006. It appears that in the said proceedings additional 4th and 5th respondents had filed I.A. 849 of 2006 praying that they may be allowed to discharge the entire debt so that the property can be saved. This court had noticed that the said petition was filed under Section 151 CPC. The prayer in the said petition was to allow the second petitioner, who is the second defendant, who is impleaded as additional fourth respondent, to discharge the decree debt in O.S. 348 of 1987 by paying in cash the entire decree amount after deducting the sum of Rs.10,000/-, which has already been paid. It is also observed that the petition is filed under Order 21 Rule 80. While disposing of the proceedings, it was observed as follows: “In the above circumstances, learned counsel for the petitioner in I.A.849 of 2006 requested that the petitioner may be allowed to withdraw the petition, giving him an opportunity to move an appropriate application before the lower court under Order 21 Rule 89 of the CPC. F.A.O.207/2009. 16 On hearing both sixes, I find that the request made is only just and proper, on the facts and circumstances of the case. Any person claiming an interest in the property sold at the time of sale or at the time of making application or acting for in the interest of such person can apply to have the sale set aside, on his depositing in court such amount stated in sub-clause (a) and (b) of Order 21 rule 89(1). If such application is filed, the court below will consider the same and dispose of the same in accordance with law.” According to learned counsel for the respondent, the above observation of this court does not have the effect as contended by the appellant. Apart from the above fact, the entire property had been directed to be sold and that order was confirmed even by the Apex court. Further, the entire right with the judgment debtors had already been lost and nothing remains for them to agitate. It is also contended that the observation made by this court while disposing of the Ex.F.A and R.F.A. could not be treated as one extending the period of limitation as that is not possible. Therefore, it is contended that there is no merit in the appeal. F.A.O.207/2009. 17 19. One of the main issues that arises for consideration is the interpretation to be given to the portion extracted in the previous paragraph from the judgment in Ex.F.A and R.F.A. The said judgment was passed on 30.6.2006. It was long thereafter, i.e., on 7.7.2007 that the appellant had filed E.A. 565 of 2007 said to be in terms of he judgment in Ex.F.A and R.F.A. It appears that initially the question of limitation was agitated before the execution court and that was overruled. Records would indicate that the decree holder had carried the matter before this court in W.P.(C) 25410 of 2008. This court disposed of the writ petition directing the court below to consider the issue of limitation, though no notice was issued to the respondent in the said original petition. One of the contentions is that the said order is not binding on the appellant as she was not served with any notice in the said proceedings. It cannot be contended that this contention is without any basis. 20. Presumably in compliance with the said direction while considering the other aspects and E.A. 565 of 200, the court considers the question of limitation also. The court has noticed that the relevant article applicable is Article 127, which prescribes 60 F.A.O.207/2009. 18 days to take recourse to procedure available under Order 21 Rule 89 from the date of sale. As rightly noticed by the court below going by the date of sale, the period was over long ago, i.e., as early as in 1993-94. If computed from that date, the petition is filed after 13 and a half years. But the court below was inclined to take the view that this court had while disposing of the Ex.F.A. and R.F.A..had directed the appellant to file an application of the nature, that has been done. 21. The contention taken by the learned counsel for the respondent that this court could not have extended the time available for filing an application under Order 21 Rule 89 cannot stand in the light of the observation made in the judgment in Ex.F.A. and R.F.A. already made mention of. As to whether that observation has the effect of only indicting that the amount as calculated going by the provisions of Order 21 Rule 89 alone needs to be deposited and then the application to set aside the sale or whether the application has to be under Order 21 Rule 89 is a different question. At any rate, one fact is very clear. Even at the time of pronouncing the judgment in Ex.F.A. and R.F.A., the period, going by the provisions of Limitation Act for filing application under Order 21 Rule 89, had elapsed long F.A.O.207/2009. 19 ago. One cannot omit to note that the judgment in Ex.F.A. and R.F.A. has become final and nobody has challenged the same. Therefore, the view taken by the lower court that the application filed by the appellant is maintainable cannot be found fault with. 22. The court below has observed that the contention taken by the appellant that he is entitled to exclude the time taken for obtaining the copy of the judgment in Ex.F.A. 33 of 2004 cannot be accepted. On verifying the endorsement on the copy of the judgment, the court