Dismissed

K.K. Raveendran v. P. Sarada

Kerala HC19 Nov 2018MA (EXE.)/8/2015

Case brief

AI extract

What is this about?

The High Court dismissed an execution appeal challenging the Family Court rejection of a plea to set aside a sale and stay execution proceedings. The Court held that the stay application failed the requirements of Order 21 Rule 26 CPC as the underlying ex parte decree setting petition was dismissed. Furthermore, insufficient evidence existed to prove fraud or irregularity for setting aside the sal

What did the court decide?

Appeal dismissed; registry directed to return documents produced by the petitioner.

K.K. Raveendran Vs P. Sarada — Execution and Attachment | Kerala HC (2018)

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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 K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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MONDAY, THE 19TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940

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MA (EXE.).No. 8 of 2015

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AGAINST THE ORDER DATED 12.10.2015 IN E.A.NO.74/2015 IN E.P.NO.34/2011 IN OP 943/2007 of FAMILY COURT, ALAPPUZHA

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APPELLANT/ PETITIONER/ ORIGINAL RESPONDENT :

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K.K. RAVEENDRAN, REPRESENTED BY POWER OF ATTORNEY HOLDER, KUMUDA BHAI, AGED 59 YEARS, D/O. KESAVAN, KOOTHUVELI VEEDU, KALAVOOR VILLAGE, AMBALAPPUZHA TALUK.

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BY ADVS. SMT.C.G.BINDU SMT.C.G.AJITHA

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RESPONDENTS/ RESPONDENTS/ ORIGINAL PETITIONERS :

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1 P. SARADA, KANJIRATHUNKAL, KATTOOR P.O., MARARIKULAM PANCHAYATH, ALAPPUZHA.

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2 BIJIMOL, KANJIRATHUNKAL, KATTOOR P.O., MARARIKULAM PANCHAYATH, ALAPPUZHA.

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BY ADVS. SMT.K.R.DEEPA SMT.R.HEMALATHA SRI.B.GIRISH

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THIS MAT APPEAL (EXECUTION) HAVING COME UP FOR ADMISSION ON 19.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :

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MA (EXE.).No. 8 of 2015

JUDGMENT

K.Harilal, J.

This appeal has been filed challenging the common order passed in EA.No.57/2015 and EA.No.74/2015 in EP.No.34/2011 on the files of the Family Court, Alappuzha. The appellant is the Power of Attorney holder of the respondent/ judgment debtor in EP.No.34/2011 on the files of the Family Court, Alappuzha. EA.No.57/2015 was filed under Order 21 Rule 26 C.P.C. praying for staying the execution proceedings and EA.No.74/2015 was filed under Order 21 Rule 90 C.P.C. praying for setting aside the sale of the attached property, held on 17.07.2013. The original petition was filed by the wife along with their daughter against the appellant for return of

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gold, maintenance, marriage expense of the 2^nd respondent etc. and the O.P. was decreed ex parte on 11.08.2009.

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According to the appellant, he was not

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aware about the passing of the ex parte decree against

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MA (EXE.).No. 8 of 2015

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him in the above Original Petition and he came to know

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about the ex parte decree only in January 2015. Thereafter, he authorized his sister as his Power of Attorney holder for conducting the case and he has not engaged any lawyer in the above case. The Power of Attorney holder filed E.A.Nos.2/2015 and 5/2015 in the Execution Proceedings. But, she was not aware of the fact that application to set aside the ex parte decree has to be filed and her previous counsel did not advice her in this respect.

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In the Original Petition, notice was not duly served on him. Therefore on 23.06.2015, his Power of Attorney holder has filed an application, IA.No.740/2015 to set aside the ex parte decree and IA.No.741/2015 to condone the delay of 2140 days in filing the petition to set aside the ex parte decree and those petitions are pending consideration of the Family Court. In the above circumstances, further proceedings in the Execution Petition is to be stayed, according to the petitioner. On the above premises,

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the said petition was filed to stay further proceedings in the E.P.

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MA (EXE.).No. 8 of 2015

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The respondent filed objection contending

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that the appellant was fully aware of the passing of ex parte decree against him and his contention that he came to know about the ex parte decree in January 2015

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is false and made without bonafides . The appellant and the Power of Attorney holder are residing under the same roof. Present applications are filed to cause delay in execution of the ex parte decree passed against him. There is no illegality or irregularity in conducting the sale. Order 21 Rule 26 has no application in the instant case, according to the petitioner. EA.No.74/2015 was filed

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under Order 21 Rule 90 of the C.P.C. praying for setting aside the sale held on 17.07.2013.

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After considering the objection raised by

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the respondent against both petitions, the court below dismissed both applications on a finding that the very same court has dismissed I.A.Nos.740/2015 and 741/2015 praying for setting aside the ex parte decree after condoning the delay of 2140 days in filing the above application. Therefore, there is no reason to stay the proceedings and there is no illegality or fraud in the conduct of the sale. The legality and correctness

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MA (EXE.).No. 8 of 2015

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of the aforesaid finding whereby the court below dismissed both applications are assailed in this Mat. Appeal.

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Heard Smt.Ajitha C.G., the learned counsel

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appearing for the appellant and Smt.K.R.Deepa, the learned counsel appearing for the respondent.

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On a bare reading of Rule 26 of Order 21,

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it could be seen that an application under Order 21 Rule 26 can be filed before the court to which a

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decree has been sent for execution for staying the execution proceedings for a reasonable time only and the object of the application is to enable the judgment debtor to apply to the court by which decree was passed or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order of stay of execution or for any other order relating to the decree or execution which might have been made by such court of first instance

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or appellate court, if execution had been issued thereby, or if application for execution had been made thereof. But, in I.A.No.57/2015, there is no such prayer, as contemplated under Order 21 Rule 26 and the prayer sought for is to stay till the disposal of

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MA (EXE.).No. 8 of 2015

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application to set aside the ex parte decree, after

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condoning the inordinate delay in filing the application. That apart, the very same court has dismissed the application to set aside the ex parte decree and the petition to condone the delay in filing the application to set aside the ex parte decree. Therefore, the court below is justified in dismissing EA.No.57/2015. Coming to EA.No.74/2015, it was filed under Order 21 Rule 90 C.P.C. praying for setting aside the sale held on 17.07.2013. On an analysis of the statutory requirements under Order 21 Rule 90, we find that the sale can be set aside on proof of fraud or material irregularity in conducting the sale.

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Going by the application, it could be seen

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that there is no averments constituting the

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ingredients of fraud or irregularity and no evidence has been adduced to prove any kind of irregularity or fraud in conducting the sale. In the absence of any kind of evidence either oral or documentary, the court below is justified in dismissing IA.No.74/2015 also. We do not find any reason to interfere with the common order passed by the court below. Hence this appeal also will stand dismissed.

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MA (EXE.).No. 8 of 2015

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The Registry is directed to return the

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documents produced by the petitioner along with IA.No.2/2018.

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Sd/-

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K.HARILAL, JUDGE Sd/-

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ANNIE JOHN, JUDGE

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RKM

K.K. Raveendran v. P. Sarada

Case brief

What is this about?

What did the court decide?

K.K. Raveendran v. P. Sarada

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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