Dismissed

C.K.Ajith v. Jayaprakash

Kerala HC8 Aug 2017FAO/93/2017

Case brief

AI extract

What is this about?

The High Court dismissed an appeal filed to set aside an execution sale of immovable property for want of prosecution. Despite extensive adjournments and a personal notice requiring the appellant’s presence to offer to satisfy the decree debt, the appellant and his counsel failed to appear on hearing dates. The court held the appellant was not interested in prosecuting the appeal and dismissed it.

What did the court decide?

The appeal filed by the judgment debtor to set aside the execution sale was dismissed for want of prosecution due to non-appearance despite notices and directives to appear in person.

C.K.Ajith Vs Jayaprakash — Execution and Attachment | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN

¶4

¶5

THE HONOURABLE MR. JUSTICE DEVAN RAMACHADRAN

¶6

TUESDAY, THE 8TH DAY OF AUGUST 2017/17TH SRAVANA, 1939

¶7

FAO.No. 93 of 2017 ()

¶8

E.A.NO.102/2017 IN E.P.NO.93/2017 IN O.S.NO.129/2008 OF SUB COURT, ALAPPUZHA

¶9

APPELLANT(S)/PETITIONER/JUDGEMENT DEBTOR/DEFENDANT:

¶10

C.K.AJITH, AGED 49 YEARS, S/O.C.V.KUNJIKUTTAN, RESIDING AT JYOTHI BHAVANAM, MARARIKULAM NORTH VILLAGE, CHERTHALA, ALAPPUZHA DISTRICT

¶11

BY ADVS.SRI.M.M.NIAS SRI.AJOY VENU

¶12

RESPONDENT(S)/CR.PETITIONER/DECREE HOLDER/PLAINTIFF:

¶13

JAYAPRAKASH,

¶14

S/O.PALANI, RESIDING AT MENAMCHERRY HOUSE, THANNEERMUKKAM P.O., CHERTHALA, ALAPPUZHA DISTRICT-688527

¶15

R. BY ADV. SRI.C.A..RAJEEV (CAVEATOR)

¶16

THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

P.N. Ravindran & Devan Ramachandran, JJ.

¶18

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

¶19

F.A.O.No.93 of 2017

¶20

- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8^th August, 2017

¶21

JUDGMENT

¶22

P.N.Ravindran, J.

¶23

This appeal arises from the order passed by the Court of the Subordinate Judge of Alappuzha on 25.3.2017 on E.A.No.102 of 2017 in E.P.No.93 of 2013 in O.S.No.129 of 2008. By the said order, the court below dismissed the application filed by the appellant who is the judgment debtor in O.S.No.129 of 2008, under Order XXI Rule 90 of the Code of Civil Procedure to set aside the sale held on 25.1.2017.

¶24

O.S.No.129 of 2008 is a suit instituted by the respondent for recovery of the advance sale consideration paid pursuant to and in terms of an agreement dated 27.7.2007. The suit was decreed on 4.4.2012. Since the judgment debtor did not satisfy the decree debt, the decree holder filed an execution petition, to realise the decree debt by the sale of 35 cents of land belonging to the judgment debtor. In that execution petition the said property was brought to sale, sold and purchased by the decree holder with the leave of the court, for Rs.37,54,445/-. The judgment debtor thereupon filed E.A.No.102 of 2017 on 20.3.2017, within the period of limitation stipulated for the purpose, to set aside the sale held on 25.1.2017. After considering the

¶25

¶26

FAO 93/2017

¶27

rival contentions, the court below dismissed the application.

¶28

When this appeal came up for consideration before us on 7.6.2017, we directed the appellant's counsel to serve a copy of the memorandum of appeal complete in all aspects on Sri C.A.Rajeev, learned counsel for the decree holder who had lodged a caveat. We also directed that the appeal be called on 12.6.2017. On 12.6.2017 we adjourned the appeal to 16.6.2017 with a direction to the learned counsel for the appellant to ascertain and submit whether the appellant is willing to deposit the decree debt as also 5% of the bid amount within one month from 12.6.2017. On 16.6.2017 when the appeal was taken up for consideration, learned counsel appearing for the appellant was not present. There was also no representation on his behalf. Learned counsel for the respondent was also not present on that day. Since learned counsel on both sides were not present, we adjourned the appeal to 23.6.2017. On 23.6.2017, though the learned counsel for the respondent decree holder was present, learned counsel for the appellant was not present. There was also no representation on his behalf. On that day learned counsel for the respondent submitted that the respondent decree holder has no objection in the sale being set aside in the event of the judgment debtor satisfying the decree debt and also reimbursing the expenses incurred in connection

¶29

¶30

FAO 93/2017

¶31

with the sale. In the light of the said submission, we adjourned the appeal to 27.6.2017, so as to enable the learned counsel for the appellant to appear and state whether the appellant is willing to discharge the decree debt and also reimburse the expenses incurred in connection with the sale.

¶32

The appeal did not come up on 27.6.2017. This was on account of the fact that 26.6.2017 was later declared a holiday and the cases that stood listed on 26.6.2017 were called on 27.6.2017. The appeal came up for consideration before us only on 28.6.2017. On that day it was adjourned to 3.7.2017 at the request of the learned counsel for the appellant. The appeal was not listed on 3.7.2017, but was listed only on 4.7.2017. On that day, learned counsel for the appellant was not present. There was also no representation on his behalf. Learned counsel for the respondent decree holder submitted that in the event of the appellant discharging the decree debt and reimbursing the expenses incurred in connection with the sale including the money spent for purchasing the stamp papers, the respondent will not stand in the way of the sale held in execution being set aside. Having regard to the said submission and the fact that there was consistent default on the part of the learned counsel for the appellant in being present in this court, we passed an order on

¶33

¶34

FAO 93/2017

¶35

4.7.2017 whereby we directed the Registry to issue notice to the appellant by registered post acknowledgment due, enclosing a copy of that order as also the orders passed by this court on 16.6.2017 and 23.6.2017 and to inform him that if he does not appear in person or through counsel on the next posting date (which we fixed as 24.7.2017), the appeal will be dismissed for non prosecution.

¶36

As directed therein, the Registry of this court issued a notice. But the notice, was despatched to the respondent decree holder. Consequently, when the appeal came up before us on 24.7.2017, we directed that the notice be served on the appellant along with copies of the orders passed on 16.6.2017, 23.6.2017 and 4.7.2017, by special messenger. Notice was accordingly served on the appellant by special messenger deputed from this court and in that notice the hearing date was fixed as 31.7.2017. On 31.7.2017 when the appeal was taken up, Smt. A. Lowsy, learned counsel of this court submitted on behalf of Sri M.M.Nias, learned counsel for the appellant that the appeal may be called on 2.8.2017. The appellant did not however appear in person on 31.7.2017. In the light of the said request, we adjourned the appeal to 2.8.2017. On that day another lawyer represented the learned counsel for the appellant and submitted that the appellant is withdrawing the appeal. Having regard to the fact that the appellant

¶37

¶38

FAO 93/2017

¶39

had not appeared in person pursuant to the orders passed by this court directing him to appear in person and as the learned counsel for the appellant was not present on that day, we passed an order adjourning the appeal to today. We also directed the appellant to be present in person today at 10.15 a.m.

¶40

Today, when the appeal was taken up for consideration, neither the appellant nor his counsel were present. There was also no representation on behalf of the learned counsel for the appellant. Learned counsel for the respondent decree holder is present in court From the facts stated above, it is evident that neither the appellant nor his counsel are serious in pursing the matter. It was to ascertain whether the appellant is willing to satisfy the decree debt and thereby salvage his property that we had passed an order directing him to appear in person. The said order was passed having regard to the consistent default on the part of his counsel. Even though the appellant did not appear, when the very same counsel, through another counsel represented that the appeal may be dismissed as withdrawn, we again passed an order adjourning the appeal to today, so as to ascertain from the appellant directly as to whether he would like to satisfy the decree debt and salvage his property. Today also the appellant and his counsel are not present. In such circumstances, we

¶41

FAO 93/2017

¶42

¶43

are satisfied that the appellant is not interested in prosecuting the appeal.

¶44

The appeal is accordingly dismissed for non prosecution. Registry to communicate a copy of this judgment to the court below for incorporation in the records.

¶45

(P.N. Ravindran, Judge)

¶46

(Devan Ramachandran, Judge)

¶47

kav/

C.K.Ajith v. Jayaprakash

Case brief

What is this about?

What did the court decide?

C.K.Ajith v. Jayaprakash

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Hashim Abu Nabeel Vs P.a.Hamza

Bharat Petroleum Corporation Limited, Ko Vs the General Secretary, Cochin Refineries

Thomas K.D. Vs Mathew

The Food Corporation of India Vs Mr.E.a.Abdul Salam

Sebastian John Vs Jacob John

George Joseph Vs Thomas K Iype