Petitioner, a surety, challenged the sale of her property in execution proceedings, citing inadequate upset price and lack of prior attachment. The High Court held that mere absence of attachment does not vitiate the sale and dismissed the writ petition.
Writ petition closed; no direction or order as requested by the surety could be issued.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN
MONDAY, THE 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931
WP(C).No. 24689 of 2009(O)
-------------------------OS.95/2007 of PRINCIPAL SUB COURT,KOLLAM ....................
PETITIONER(S): ---------------
KANAKAMMA, D/O.KOCHUPENNU, AGED 73 YEARS, PATTATHUVILA VEEDU, PATTATHANAM CHERI, VADAKKEVILA VILLAGE, KOLLAM.
BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G.
RESPONDENTS:
ADV. SRI.RAJA VIJAYARAGHAVAN FOR R1 SRI.R.RANJITH FOR R1
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX(WPC 24689/09)
PETITIONER'S EXTS.:
EXT.P1: TRUE COPY OF THE DECREE IN O.S.NO.95/97 OF THE SUB COURT, KOLLAM.
EXT.P2: TRUE COPY OF THE E.P.140/03 IN O.S.NO.95/97 FILED BY THE 1ST RESPONDENT BEFORE THE SUB COURT, KOLLAM.
EXT.P3: TRUE COPY OF THE E.A.429/09 IN E.P.140/03 IN O.S.NO.95/97 FILED BY THE PETITIONER BEFORE THE SUB COURT, KOLLAM.
EXT.P4: TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT TO EXT.P3 PETITION.
EXT.P5: TRUE COPY OF THE E.A.506/09 IN E.P.140/03 IN O.S.NO.95/97 FILED BY THE PETITIONER BEFORE THE SUB COURT, KOLLAM.
S.S. SATHEESACHANDRAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.24689 of 2009
- - - - - - - - - - - - - - - - - - - - - - - - - Dated: 9th November, 2009
JUDGMENT
Petitioner was a surety who offered her immovable property as security for the suit claim raised by the first respondent/plaintiff in O.S.No.95 of 1997 on the file of the Sub Court, Kollam against the second respondent, defendant. Suit was one for recovery of money. Petitioner had offered her immovable property as security and stood as surety for the second respondent/defendant when an order was passed against him in the suit for interim attachment before judgment under Order 38 Rule 5 of the Code of Civil Procedure. Suit was decreed directing realisation of an amount of Rs.2,76,491/- with interest and cost from the defendant and his assets. In execution of the decree, the immovable property offered as security by the judgment debtor/surety was proceeded for sale. Proclamation was settled after notice to the 2nd respondent/judgment debtor and also petitioner/surety. After such settlement of proclamation for sale, petitioner had moved an application (P3) for review of the order of the sale raising twofold contentions that the upset price fixed was grossly inadequate, and that no attachment was made over the property offered by her as security before settling the proclamation for sale. P3 petition was opposed by the decree holder by filing P4
W.P.C.No.24689/09 - 2 -
objections. Petitioner moved P5 application for disposal of her P3 petition before proceeding with the sale. Writ Petition has been filed invoking the visitorial jurisdiction vested with this court to issue direction to the court below to dispose of P3 petition within the time limit fixed and also to adjourn the sale of the petitioner's property till P3 petition is considered and disposed of in accordance with law.
W.P.C.No.24689/09 - 3 -
property at the instance of the judgment debtor or any other person when proceeding with the sale of the property in execution of a decree is ensured by order of attachment of the property before settling the proclamation for sale. Even assuming that there was no attachment of sale before settlement of the proclamation, how far it is open to the surety or the judgment debtor to canvass such omission as a defect as vitiating a sale proceeded has to be examined with reference to the explanation to Rule 90 of Order 21 of the Code of Civil Procedure. The explanation in the above rule states that the mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under the rule. The explanation endorse the view that the absence of, or defect in the attachment is not a ground for setting aside the sale. Further more, if the surety has any grievance that there was no attachment of his property before proceeding for sale, that objection should have been canvassed before proclamation was settled. She has no case that the execution proceedings were without giving notice to her. The liability of a surety for the purpose of the decree to the extent she has rendered herself personally liable is in the same manner as if the surety was a party to the decree. Section 145 of the Code of Civil Procedure makes it abundantly clear that when the surety has
W.P.C.No.24689/09 - 4 -
furnished any property as security, the decree passed in the suit can be satisfied by sale of such property with the extent of the security. Security of immovable property was given by the surety in the present case to lift an attachment passed against the defendant in the suit. It is futile on the part of the surety to contend that the bond given by him does not create charge over his property for the suit claim. In that view of the matter also, even if the decree has not specifically provided for a charge over the property given as security by the surety, in the given facts of the case, the omission to attach the property before settling the proclamation is of no consequence. Upset price fixed for sale of the property in the proclamation settled was inadequate, the other ground canvassed by the surety, needless to point out, was a matter which required to be taken and agitated in the enquiry on the settlement of proclamation for sale. There is no merit in the case projected by the surety and, I find no direction or order as requested by her can be issued in exercise of the supervisory jurisdiction vested with this court.
Writ Petition is closed.
S.S. SATHEESACHANDRAN, JUDGE
srd
2 issues framed by the court
Whether a sale conducted without prior attachment of a surety's property is liable to be quashed as it vitiates proceedings.
Whether the absence or defect in attachment constitutes a valid ground for setting aside a sale decree.
4 provisions across 2 enactments
Kanakamma
N. Raveendranathan
G. Vinod
S.S. Satheesachandan
As recorded by the court registry
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