The High Court dismissed an appeal seeking to set aside a property sale under CPC Order 21 Rule 90. The court held the selling decree was justified as the appellant failed to prove discharge of the debt.
The appeal was dismissed. The appellant was granted 3 months to pay the decree amount with interest and costs for potential reconveyance.
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 T.R.RAMACHANDRAN NAIR &
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 7TH DAY OF AUGUST 2014/16TH SRAVANA, 1936
FAO.No. 161 of 2012 ()
(AGAINST THE ORDER PASSED IN E.A. No.243/11 IN E.P.No.56/05 OF O.S.No.70/1995 ON THE FILE OF THE MUNSIFF COURT, KODUNGALLOOR DATED 30.9.2011)
APPELLANT/PETITIONER/4TH JUDGMENT DEBTOR:
RAPHEL
S/O.AVITTOMPPILLY MATHEW, METHALA VILLAGE, DESOM KODUNGALLOOR TALUK.
BY ADV. SRI.V.M.KRISHNAKUMAR
RESPONDENT/RESPONDENT/DECREE HOLDER:
SREE NARAYANA SAMAJAM METHALA VILLAGE, DESOM, KODUNGALLOOR TALUK. R1 BY ADV. SRI.K.S.RAJESH R BY ADV. SRI.M.SHAJU PURUSHOTHAMAN
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 07-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AL/-
T.R.RAMACHANDRAN NAIR &
P.V.ASHA, JJ.,
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Dated this the 7th day of August 2014
JUDGMENT
Ramachandran Nair, J.,
The application filed by the appellant under Order 21 Rule 90 CPC to set aside the sale has been rejected by the court below after entering a finding on the merits of the case of the appellant. According to the appellant, the suit was filed originally against his father and sister and pending the suit, father died and other legal heirs were impleaded. The suit was one for realisation of an amount to the tune of .5,000/- with interest thereon based on an alleged pronote which was decreed also. According to him, he was working in a gulf country and that, after the death of his father he wanted to pay off the debt incurred by his father. In 1995, he approached the respondent and issued a cheque for .9,350/- dated 16.6.1995. The above cheque was dishonoured and therefore, respondent initiated proceedings under Section 138 of the Negotiable Instruments Act. According to the appellant, after coming to know about the
F.A.O.161/2012
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proceedings, the appellant paid the amount to the respondent and in turn the respondent handed over the dishonoured cheque
to the appellant. It is submitted that without taking into consideration the payment effected by the appellant, execution petition was filed by the respondent before the court below and sought to recover an amount of Rs. 11978/- by sale of three cents of property situated in Kodungallur town and the property was brought for sale.
the endorsement which will establish the credential of the appellant. It is therefore, submitted that rejection of the plea of the appellant to set said sale is unsustainable and the order of the court below has to be set aside.
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present suit and it will not evidence that the decree debt was discharged by the appellant.
5 It is also submitted that in terms of the relevant provisions of the CPC, payment if any made by the appellant has to be reported to the court and therefore, no infirmity can be alleged with regard to the proceedings.
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is not the ground to set aside the same. Apart from the same we are of the definite view that on the merits, the findings rendered
by the court below do not call for any interference, as there is a total failure to prove that the appellant had discharged the decree debt. Apart from the above, the reason shown is not a ground available under Order 21 Rule 90 CPC to set aside the sale. For all these reasons, we dismiss the appeal.
Sd/-
T.R.RAMACHANDRAN NAIR (JUDGE)
Sd/-
P.V.ASHA (JUDGE)
AL/-
True copy
P.A to Judge
2 issues framed by the court
Whether the appellant was entitled to set aside the sale of property under Order 21 Rule 90 CPC.
Whether the appellant had discharged the decree debt.
2 provisions across 2 enactments
RAPHEL
SREE NARAYANA SAMAJAM
T.R.RAMACHANDRAN NAIR
P.V.ASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
