Disposed

Davis v. Manager, Indian Bank, Kodungallur Branch

Kerala HC14 Feb 2013CRP/240/2012

Case brief

AI extract

What is this about?

Revision petition by a judgment debtor challenging the dismissal of an execution application filed under Section 47 CPC to set aside a sale. The Court held that post-sale irregularities attract Rule 90 of Order XXI, rendering the application time-barred, though property delivery was adjourned for settlement negotiations.

What did the court decide?

No interference with the impugned order. Delivery of the auctioned property adjourned for three months to facilitate settlement between the parties subject to specific conditions.

Davis Vs Manager, Indian Bank, Kodungallur Branch — Execution and Attachment | Kerala HC (2013)

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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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THURSDAY, THE 14TH DAY OF FEBRUARY 2013/25TH MAGHA 1934

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CRP.No. 240 of 2012 ()

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REVISION PETITIONER(S) PETITIONER/2ND JUDGMENT DEBTOR :

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-----------------------------------------------------------------------------------------------

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DAVIS, AGED 57 YEARS, S/O. UKKEN MATHEW, PUTHENVEETTIL, EDAKKULAM DESOM EDAKULAM P.O., POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR.

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BY ADVS.SRI.MANUEL KACHIRAMATTAM SMT.MERRY GEORGE

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RESPONDENT(S)/DECREE HOLDER :

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----------------------------------------------------

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MANAGER, INDIAN BANK, KODUNGALLUR BRANCH KODUNGALLUR, THRISSUR DISTRICT 680 609.

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BY ADV. SRI.S.EASWARAN

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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- - - - - - - - - - - - - - - - - - - - - - - C.R.P. No. 240 of 2012

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- - - - - - - - - - - - - - - - - - - - - - - Dated this the 14^th day of February, 2013

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O R D E R

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This civil revision petition is preferred by the 2^nd judgment debtor in E.P. No.58 of 2007 in O.S. No.40 of 1995 of the Sub Court, Irinjalakuda challenging the order dated 31.01.2012 on E.A. No.99 of 2011 and E.A. No.207 of 2011 in E.P. No.58 of 2007 in O.S. No.40 fo 1995.

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Respondent/Bank has obtained a money decree against petitioner. In execution of that decree, property of petitioner was sold in auction on 01.12.2010 as per auction notification dated 12.11.2009 (as pleaded by petitioner). Petitioner filed E.A.No.99 of 2011 to set aside sale under Section 47 of the Code of Civil Procedure, 1908 (for short “the Code”). That application was dismissed by the impugned order dated 31.01.2012. Hence challenge to that order.

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Learned counsel has contended that sale of the entire property was not required to satisfy the decree debt

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C.R.P. No. 240 of 2012

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and hence the sale is vitiated by material irregularity and illegality. It is also contended that sale was conducted after

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one year of notification dated 12.11.2009.

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Learned counsel for respondent has contented, relying on the decision in Desh Bandhu Gupta v. N.L. Anand and Rajinder Singh [(1994) 1 SCC 131] followed in A.G.M. Constructions (P) Ltd v. Shibu Kumar [ 2010 (4) KLT 189] that allegations if accepted, would only bring the matter within Rule 90 of Order XXI of the Code in which case, E.A. No.99 of 2011 having been filed after 60 days of the date of sale is barred by limitation and hence not entertainable. It is also contented that if the order falls under Rule 90 of Order XXI of the Code, remedy of petitioner is by way of an appeal under Order XLIII, Rule 1 (j) of the Code.

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On going through the order under challenge, I find that contentions raised were that on the death of 3^rd judgment debtor who is the father of petitioner, other

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C.R.P. No. 240 of 2012

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legal heirs were not impleaded. On going through the order under challenge it is seen that in E.P. No.58 of 2007, supplemental respondents were impleaded.

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So far as non-compliance with Rule 64 of Order XXI of the Code is concerned, even if it is so, it is a post sale illegality coming under Rule 90 of Order XXI of the Code. So too, the allegation that sale was conducted after one year of the notification. The above allegations being of post sale illegality, could be challenged not under Section 47 of the Code but only under Rule 90 of Order XXI of the Code in which case, E.A. No.99 of 2011 is clearly barred by limitation. Therefore, I do not find reason to interfere with impugned order.

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Learned counsel for the petitioner has expressed a desire to pay the entire amount due to the respondent and salvage the situation. Learned counsel for respondent submits that in case any such offer is made by petitioner, necessary advice will be given to the respondent.

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C.R.P. No. 240 of 2012

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To facilitate petitioner or other judgment debtors paying the amount due to the respondent and salvaging the situation, I am inclined to grant some time. During the said period, delivery of property shall remain in abeyance.

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Resultantly, this C.R.P is disposed of as under:

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(1) While no interference is required with the impugned order, it is directed that delivery of property shall stand adjourned to a day after three months from this day subject to the following conditions:

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(a) That in the meantime, petitioner or other judgment debtors shall not create documents, induct third parties or encumber the property.

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(b) That petitioner and other judgment debtors shall file affidavit in the executing court within two weeks from this day undertaking to vacate the property by the expiry of the

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C.R.P. No. 240 of 2012

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said period of three months (unless in the meantime the matter is settled between petitioner and or other judgment debtors and the respondent and appropriate action is taken in the matter)

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(c) In the meantime it is open to the petitioner and or other judgment debtors to approach the respondent and try to settle the dispute.

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Sd/-

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THOMAS P. JOSEPH JUDGE

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//True copy//

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P.A. TO JUDGE

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shg/

Davis v. Manager, Indian Bank, Kodungallur Branch

Case brief

What is this about?

What did the court decide?

Davis v. Manager, Indian Bank, Kodungallur Branch

Case brief

What is this about?

What did the court decide?

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