IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 WP(C).No. 4226 of 2010(O) ------------------------- AGAINST THE ORDER IN CMA 70 /2009 and CMA.69/2009 of I ADDL. DISTRICT COURT, PALAKKAD OS.104/2005 of MUNSIFF COURT, ALATHUR (EP 22/2007,EA 92/09) .................... PETITIONER/APPELLANT/APPLICANT/JUDGEMENT DEBTOR: --------------------------------------------------- RAMACHANDRA SHENAI, S/O.LATE A.N.ACHUTHA SHENAI, CANARA BANK - CLERK, THOTTASSERI VEEDU, AILUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS/RESPONDENTS/RESPONDENTS/DECREE HOLDER: ---------------------------------------------------- 1. RAMACHANDRAN, S/O.ARUNACHALI MUDALI, RESHMALAYAM, K.A.K.STREET, PAZHAMBALAKKOD AMSOM & DESOM, ALATHUR TALUK. 2. CHANDRAN, S/O.KUTTAMANI, KARIMBROTTIL, CHITTADI, VANDAZHI AMSOM & DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. ADV. SRI.JOHNSON P.JOHN FOR R2 SRI.BABY MATHEW FOR R2 SRI.JACOB SEBASTIAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4226 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : EP No.22/2007 IN O.S.No.104/2005 ON THE FILE OF MUNSIFFS COURT, ALATHUR EXHIBIT P2 : E.ANo.27/2009 IN EP No.22/2007 IN O.S.No.104/2005 ON THE FILE OF MUNSIFFS COURT, ALATHUR EXHIBIT P3 : OBJECTION IN EXT.P2 FILED BY RESPONDENT No.1 EXHIBIT P4 : OBJECTION IN EXT.P2 FILED BY RESPONDENT No.2 EXHIBIT P5 : E.ANo.61/2009 IN EP No.22/2007 IN O.S.No.104/2005 ON THE FILE OF MUNSIFFS COURT, ALATHUR EXHIBIT P6 : OBJECTION FILED BY RESPONDENT No.1 IN EXT.P5 EXHIBIT P7 : OBJECTION FILED BY RESPONDENT No.2 IN EXT.P5 EXHIBIT P8 : E.ANo.92/2009 IN EP No.22/2007 IN O.S.No.104/2005 ON THE FILE OF MUNSIFFS COURT, ALATHUR EXHIBIT P9 : OBJECTION FILED BY RESPONDENT No.1 IN EXT.P8 EXHIBIT P10 : OBJECTION FILED BY RESPONDENT No.2 IN EXT.P8 EXHIBIT P11 : ORDER DTD. 03.06.2009 PASSED IN E.ANo.27/2009 IN EA No. 61/2009 IN EP No.22/2007 IN O.S.No.104/2005 ON THE FILE OF MUNSIFFS COURT, ALATHUR EXHIBIT P12 : COMMON JUDGMENT DTD. 14.01.2010 PASSED IN CMAS 69 AND 70 OF 2009, ON THE FILE OF DISTRICT COURT, PALAKKAD RESPONDENTS' EXHIBITS: EXHIBIT R1(a) : E P No.123/08 IN O.S.No.213 OF 2005 OF THE MUNSIFF COURT, ALATHUR True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.4226 of 2010 --------------------------------------- Dated this 17th day of September, 2010 JUDGMENT Petitioner is the judgment debtor in E.P.No.22 of 2007 in O.S.No.104 of 2005 of the court of learned Munsiff, Alathur. Respondent No.1 obtained a decree for recovery of money against petitioner and that decree was put to execution. In execution property of petitioner was sold in court auction on 12-03-2008. It was purchased by respondent No.2 for Rs.1,55,000/-. He has deposited the purchase price in full in the executing court. The sale was confirmed and sale certificate was also issued to respondent No.2. While so, on 23-01-2009 petitioner filed E.A.No.27 of 2009 under Rule 90 of Order XXI of the Code of Civil Procedure (for short, “the Code”) challenging the auction sale on the ground that it suffers from material irregularity and fraud in publishing and conducting the sale. That application was opposed by the respondents on various grounds including limitation. Petitioner then filed E.A.No.92 of 2009 under Section 47 of the Code challenging the sale on the same grounds set up in E.A.No.27 of 2009. Petitioner also filed E.A.No.67 of 2009 to appoint an Advocate Commissioner to value W.P.C.No.4226 of 2010 : 2 : the property. Those applications were also resisted by respondents. Executing court found no merit in the applications and dismissed all the applications. Petitioner challenged dismissal of E.A.Nos.27 and 92 of 2009 in C.M.A.No.69 and 70 of 2009. Those appeals were dismissed in confirmation of the order passed by the executing court. Hence this writ petition. Learned counsel for petitioner contends that there is non compliance of Rule 64 of Order XXI of the Code in that the property which would have fetched a higher amount was sold for a paltry sum of Rs.1,55,000/- and the executing court did not apply its mind as to whether sale of a portion of the property was sufficient to satisfy the decree debt. Non compliance with Rule 64 of Order XXI of the Code has affected the very jurisdiction of the executing court to order sale of the property. Sale is therefore null and void. Reliance is placed on the decisions in Rajanethna Naikkam Vs. Parameswara Kurup (1997(1) KLT 777), Muthuraj (Minor) Vs. Ramaswamy Kounder (2006(1) ILR Kerala 466) and Kuruvilla Vs. Corporation Bank (2008(1) KLT 6404). Learned counsel for respondent Nos.1 and 2 contend that so far as E.A.No.27 of 2009 is concerned, that application is preferred after the period of 60 days as prescribed by Article 127 of the W.P.C.No.4226 of 2010 : 3 : Limitation Act (for short, “the Act”) and hence it is barred by limitation. It is also contended that E.A.No.92 of 2009 is not maintainable under Section 47 of the Code since the ground urged thereunder relate to post sale illegality or irregularity falling under Rule 90 Order XXI of the Code and mere labelling of the application as one under Section 47 of the Code cannot take that application outside the purview of Article 127 of the Act. 2. True, it has been held that legislative mandate of Rule 64 of Order XXI of the Code is clear and specific that executing court gets jurisdiction to order sale of the property only being satisfied as to whether entire property is required to be sold or sale of a portion of the property is sufficient to satisfy the decree debt. It is not disputed that so far as E.A.No.27 of 2009 is concerned, that application was preferred after the expiry of 60 days from the date of sale. Article 127 of the Act prescribes a period of 60 days from the date of sale for an application to set aside the sale under Order XXI Rule 90 of the Code. If the application falls within the scope of Section 47 of the Code Article 127 of the Limitation Act has no application and the residuary Article (Article 137) applies in which case period of limitation is three years from the date of sale. 3. Argument of learned counsel for petitioner is that W.P.C.No.4226 of 2010 : 4 : since there is total non compliance of Rule 64 of Order XXI of the Code the court sale has to be treated as null and void which can be urged under Section 47 of the Code. I had occasion to consider this question in C.R.P.No.60 of 2010 and after referring to all the decisions on the point including Desh Bandhu Gupta Vs. N.L Anand and Rajinder Singh (1994(1) SCC 131 ) I have found that want of notice to the judgment debtor as required under Rule 62(2) or total absence of proclamation of sale under Rule 64 of Order XXI of the Code would bring the case within the scope of Section 47 of the Code being pre-sale illegality or irregularity. But post sale illegality or irregularity come under Rule 90 of Order XXI of the Code. Non application of mind under Rule 64 of Order XXI of the Code while preparing proclamation of sale is an illegality or irregularity as the case may be relating to the publishing of sale, is a post sale illegality or irregularity and falls under Rule 90 of Order XXI of the Code. There is no case for petitioner that there is total absence of proclamation of sale. Case is only that proclamation of sale prepared is not in conformity with Rule 64 of Order XXI of the Code which in the light of the decision in C.R.P.No.60 of 2010 and the binding decisions referred therein is only an illegality or W.P.C.No.4226 of 2010 : 5 : irregularity squarely falling under Rule 90 of Order XXI of the Code the period of limitation which is governed by Article 127 of the Act. E.A.No.27 of 2009 is admittedly filed after the period of limitation as above stated. It follows that E.A.No.27 of 2009 is barred by limitation and hence not maintainable. 4. Now coming to E.A.No.92 of 2009, I stated that it is the very same grounds urged in E.A.No.27 of 2009 that is urged in E.A.No.92 of 2009. Obviously the attempt was to get rid of period of limitation prescribed under Article 127 of the Act by giving the application a label under Section 47 of the Code. On the grounds pleaded in E.A.No.92 of 2009 it fell under Rule 90 of Order XXI and hence that application is not maintainable under Section 47 of the Code. Hence E.A.No.92 of 2009 was also not maintainable. 5. Though, certain other contentions are also raised as to the value of property, I must bear in mind that before sale was conducted no attempt was made to get the property valued through an Advocate Commissioner or any other means. There is no material before the executing court to hold that upset price fixed by the executing court or, sum of Rs.1,55,000/- for which auction was bid by respondent No.2 did not reflect the actual value of the property. Moreover, I also found that E.A.Nos.27 W.P.C.No.4226 of 2010 : 6 : and 92 of 2009 are not maintainable. It follows that the executing court as well as appellate court are justified in dismissing E.A.Nos.27 and 92 of 2009 and no interference is required. Resultantly this writ petition fails and it is accordingly dismissed. No cost. (THOMAS P JOSEPH, JUDGE) Sbna/-