Allowed

Kaliyammal v. v.Balasubramanian

Kerala HC10 Apr 2012RSA/350/2012

Case brief

AI extract

What is this about?

The High Court of Kerala held that an order dismissing an application to set aside a sale in execution proceedings under Rule 92 of Order XXI CPC is not appealable under Section 96(2) CPC. Such an order is appealable only as a Civil Miscellaneous Appeal under Rule 1(j) of Order XLIII CPC since it does not amount to a decree. The appeal was allowed and remitted.

What did the court decide?

Decision of Additional District Judge in A.S. No.100 of 2010 set aside and remitted to be treated as a Civil Miscellaneous Appeal under Rule 1(j) of Order XLIII CPC.

Kaliyammal Vs v.Balasubramanian — Execution and Attachment | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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TUESDAY, THE 10TH DAY OF APRIL 2012/21ST CHAITHRA 1934

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RSA.No. 350 of 2012 ()

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---------------------AS.100/2010 of ADDL. DISTRICT COURT, OTTAPALAM OS.49/2000 of SUB COURT, OTTAPPALAM

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APPELLANT(S):APPELLANTS/JUDGMENT DEBTORS:

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1. KALIYAMMAL, W/O.LATE JAYADEVA KOUNDER, PARAPPANTHURA, AGALI AMSOM, DESOM, AGALI VILLAGE, MANNARKKAD TALUK.

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2. PAZHANISWAMY, S/O.KALIYAMMAL, PARAPPANTHURA, AGALI AMSOM, DESOM, AGALI VILLAGE, MANNARKKAD TALUK.

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BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA

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RESPONDENT(S):RESPONDENT/DECREE HOLDER:

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S.V.BALASUBRAMANIAN, KARUVADATH, AGALI VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT - 678 581.

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BY ADVS. SMT.T.D.RAJALAKSHMI, SRI.R.SREEHARI

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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THOMAS P.JOSEPH, J.

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==================================== R.S.A. No.350 of 2012

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==================================== Dated this the 10^th day of April, 2012

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J U D G M E N T

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The following substantial question of law is framed for a

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decision:

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“Whether an order under Rule 92 of Order XXI of the Code of Civil Procedure (for short, “the Code”) dismissing an application under Rule 90 is subject to a regular appeal under Section 96(2) of the Code?

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Respondent appears through counsel.

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Appellants are judgment debtors in in E.P. No.82 of 2006 in O.S. No.49 of 2000 of the court of learned Sub Judge, Ottappallam. In execution of the decree for money, property belonging to the appellants was sold in court auction. That was followed by appellants filing E.A. No.110 of 2009 obviously under Rule 90 of Order XXI the Code to set aside the sale on various grounds. Executing court dismissed the application as per order dated 17.11.2009. Appellants challenged that order in the court of learned Additional District Judge, Ottapplam where the appeal

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R.S.A. No.350 of 2012

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-: 2 :-

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was numbered as A.S. No.100 of 2010. That appeal was dismissed by judgment dated 16.11.2011. Hence this Second Appeal.

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I have heard learned counsel on both sides on the question whether a regular appeal under Section 96(2) of the Code is maintainable from an order under Rule 92 of Order XXI of the Code. It is pointed out by learned counsel on both sides that the proper course was to file a Civil Miscellaneous Appeal under Rule 1(j) of Order XLIII of the Code.

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Since the order under Rule 92 of Order XXI of the Code was appelable under Rule 1(j) of Order XLIII of the Code and that order cannot be treated as a deemed decree in the absence of any statutory provision in that regard, a regular appeal under Sec.96(2) of the Code was not maintainable. First appellate court, though a regular appeal was filed, ought to have converted the appeal into a C.M. Appeal and disposed of the same accordingly. First appellate court committed an illegality in entertaining a regular appeal under Sec.96(2) of the Code and disposing of the same.

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Substantial question of law framed is answered as above.

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R.S.A. No.350 of 2012

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-: 3 :-

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Second Appeal is allowed is under:

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(i) Judgment and decree of learned Additional District Judge, Ottappalam in A.S. No.100 of 2010 are set aside.

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(ii) A.S. No.100 of 2010 is remitted to that court. Appellants shall take steps to convert the regular appeal into a C.M. Appeal preferred under Rule 1(j) of Order XLIII of the Code. Learned Additional District Judge, in such circumstance shall dispose of the same as provided under law after hearing both sides.

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(iii) It is directed that the interim order of stay granted by this Court on 06.03.2012 will remain in force till 30.06.2012 or till the first appellate court after conversion of the appeal into a C.M. Appeal passes appropriate orders on the application for stay if any preferred by the appellant, whichever is earlier.

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(iv) Parties are directed to appear in the court of learned Additional District Judge,

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R.S.A. No.350 of 2012

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-: 4 :-

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Ottappalam on 01.06.2012.

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(v) Learned Additional District Judge, Ottappalam is directed to expedite disposal of the appeal being converted as a C.M. Appeal.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Kaliyammal v. v.Balasubramanian

Case brief

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What did the court decide?

Kaliyammal v. v.Balasubramanian

Case brief

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