IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 Ex.FA.No. 114 of 2009 ------------------------- AGAINST THE ORDER DATED 19/08/2009 IN E.P.71/1989 IN OS.463/1982 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/PETITIONER/JUDGMENT DEBTOR --------------------------------------------------- G.AJITHKUMAR, S/O.GOPALAN, PLAVILA VEEDU, ETTIRUTHI, KULATHUMMAL VILLAGE, KATTAKKADA, THIRUVANANTHAPURAM. BY ADV. SRI.R.GOPAN RESPONDENT(S): COUNTER PETITIONRS/DECREE HOLDERS & AUCTION PURCHASER ----------------------------------------------------------------- 1. THE MANAGER, BANK OF INDIA, KATTAKKADA BRANCH, FORMERLY PARUR CENTRAL BANK LTD. 2. D.RAVEENDRA KUMAR, LALITHA VILASAM, KACHIPPARA, KALLIKKADU, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. ADV. SRI.B.SATHIQ FOR R2 SRI.K.K.JOHN FOR R1 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2010, ALONG WITH WPC NO. 15152 OF 2006 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA.2824/2009 IN EX FA. 114 OF 2009 DISMISSED. 14/1/2009. SD/- A.K. BASHEER, JUDGE. SD/-M.L.JOSEPH FRANCIS, JUDGE. A. K. Basheer & M.L.Joseph Francis, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - EX.F.A.No.114 of 2009 & WP(C) No. 15152 of 2006-D - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of January, 2010. Judgment Basheer, J: These two cases are being heard and disposed of through this common judgment, since the parties are common and the issues involved therein are closely inter related. 2. The grievance of the common appellant-writ petitioner is that his property has been put to sale by the Bank-decree holder in execution of a decree in an illegal and irregular manner. 3. Relevant facts may be briefly noticed. 4. Appellant admittedly suffered a decree at the hands of the Bank for realisation of an amount of Rs.1,53,000/- with interest and cost. The decree was passed by the court below on October 31, 1980. The Bank-decree holder put the decree in execution in the year 1989. It is on record that the property which was attached during the pendency of the Execution Petition was sold on October 6, 2005 in E.P.No.71/89 on the file of the Subordinate Judge's Court, Thiruvananthapuram. Respondent No.2 in the appeal was the successful auction purchaser. The sale was confirmed in favour of respondent No.2 for a sum of Rs.4,55,000/- on February 28, ExFA.114/09 & WP.15152/06. 2 2006. 5. Shortly after the sale appellant-judgment debtor filed EA.No.1328/2005 seeking review of the order and also to set aside the sale. The said application was dismissed by the execution court by its order dated February 28, 2006. Consequently, the sale was confirmed and Execution Petition was closed. 6. The above order is challenged by the appellant in WP.No.15152/2006 in which all further proceedings in execution have been stayed by this Court. In the meanwhile appellant had filed EA.391/06 under Order XXI Rule 90 also to set aside the sale. 7. It is the admitted position that on June 26, 2006 .appellant deposited a sum of Rs.40,000/- as directed by this Court in WP.No.15152/2006. Still later, a further sum of Rs.2,60,000/- was also remitted by the appellant before the Bank on September 28, 2006 as mutually agreed by the parties. When ultimately the above writ petition came up for further consideration on September 1, 2008, it was disposed of by this Court observing that the appellant may approach the Bank for further reliefs/orders if so advised. The above order was sought to be reviewed by the appellant in RP.No.1079/09 contending inter alia that subsequent developments had not been taken into account by this Court while disposing of the writ petition. Therefore the review petition was allowed and the writ petition was further directed to be posted for further hearing. It is thus that the writ petition has been tagged ExFA.114/09 & WP.15152/06. 3 along with this appeal. 8. On August 19, 2009 the Execution Court took up for consideration EA.No.391/06 which was filed by the appellant to set aside the sale. The court took the view that the application to set aside the sale was totally misconceived inasmuch as the application was barred by limitation and also that the sale had been confirmed already. 9. The above order is impugned by the appellant in this Execution First Appeal, contending inter alia that the sale by itself is ex facie vitiated inasmuch as the Court at Thiruvananthapuram had no territorial jurisdiction to put the property which was situated within the limits of Subordinate Judge's Court Nedumangad to sale, in view of Section 39(4) of the Code of Civil Procedure. Various other contentions have also been raised by the appellant while impugning the order passed by the court below. 10. We have heard learned counsel for the appellant- Judgment Debtor, Bank-decree holder and also the auction purchaser. 11. Having regard to the entire facts and circumstances and also keeping in view the fact that the appellant has already remitted the entire amount due under the decree before the Bank, we queried the appellant whether he was prepared to pay adequate compensation to the auction purchaser. 12. But learned counsel for the auction purchaser submitted ExFA.114/09 & WP.15152/06. 4 before us that it will cause great heart burn for the auction purchaser at this distance of time if he is denied the benefit of the successful bid made by him in the auction sale. 13. It is true that the auction purchaser had deposited the entire sum of Rs.4,55,000/- way back in October 2005. Admittedly the sale was confirmed in February 2006. But the fact remains that the appellant has remained in possession of the property throughout. It is not disputed before us that this is the only shelter that the appellant has in his possession. More importantly, the appellant had remitted the entire dues payable by him under the decree to the Bank some time in September 2006 itself. Further, the contention raised by the appellant that the sale of the property ordered by the court below was without jurisdiction looms large on the face of the record. 14. Having regard to the totality of the facts and circumstances of the case, we are of the view that if the appellant is directed to pay adequate compensation to the auction purchaser it would meet the ends of justice. 15. In the above facts and circumstances we are satisfied that a sum of Rs.1,75,000/- will be a reasonable and adequate compensation that can be directed to be paid by the appellant to respondent No.2-auction purchaser. Learned counsel for the appellant submits that he is prepared to pay the said sum of Rs.1,75,000/- to the auction purchaser within one month from ExFA.114/09 & WP.15152/06. 5 today. The above submission is recorded. The appeal and the writ petition are disposed of accordingly. 16. It is made clear that if the appellant fails to pay the said sum of Rs.1,75,000/- to respondent No.2 auction purchaser by way of a demand draft drawn in his favour on or before February 15, 2010 this appeal shall stand dismissed. in which event the order of sale held on October 6, 2005 in E.P.No.71/89 in OS.No.463/1982 shall stand confirmed. 17. The court below shall release the amount deposited by respondent No.2 to him if the appellant complies with the above direction issued by this Court. The cost of the stamp paper shall also be released to respondent No.2. The Execution First Appeal and the Writ Petition are disposed of in the above terms. A.K. Basheer Judge M.L. Joseph Francis Judge. an.