Dismissed

Raziya Fazal v. Thomaskutty Eapen

Kerala HC13 Feb 2020FAO/177/2019

Case brief

AI extract

What is this about?

In an execution petition regarding specific performance of a compromise decree, the High Court dismissed the appellant's appeal against the confirmation of the auction sale of immovable property. The court held that the failure to substantiate claims of under-valuation or material irregularities precluded relief.

What did the court decide?

The appeal was dismissed. All pending interlocutory applications were also dismissed.

Raziya Fazal Vs Thomaskutty Eapen — Execution and Attachment | Kerala HC (2020)

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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 A.HARIPRASAD

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941

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FAO.No.177 OF 2019

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AGAINST THE ORDER DATED 18-09-2019 IN EA NO.318 OF 2019 IN EP NO.163 OF 2018 IN OS 956/2012 OF PRINCIPAL SUB COURT, ERNAKULAM.

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APPELLANT/PETITIONER/JUDGMENT DEBTOR :

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RAZIYA FAZAL, AGED 47 YEARS, W/O. FAZAL, C. C. NO.XLVII/823(C1), PLOT NO.2, KEERTHI NAGAR, ELAMAKKARA P. O., ERNAKULAM – 682 026.

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BY ADV. SMT.SAIPOOJA.

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RESPONDENT/RESPONDENT/DECREE HOLDER :

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THOMASKUTTY EAPEN, AGED 63 YEARS, S/O. EAPEN, KOCHUPURACKAL (H), ATHIRAMPUZHA P. O., KOTTAYAM – 686 562.

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R1 BY ADV. SRI.M.V.BOSE R1 BY ADV. SRI.VINOD MADHAVAN R1 BY ADV. SMT.NISHA BOSE R1 BY ADV. SMT.P.M.MAZNA MANSOOR R1 BY ADV. SRI.SHARATH S.PUTHENPARAMPAN

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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F.A.O No.177 of 2019 2

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A.HARIPRASAD & N.ANIL KUMAR, J J.

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F.A.O No.177 of 2019

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Dated this the 13th day of February, 2020

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J U D G M E N T

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A.HARIPRASAD, J

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Heard learned counsel for the appellant and respondent.

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Appellant is challenging Annexure A5 order passed by the

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Subordinate Judge, Ernakulam on E.A No.318 of 2019 in E.P No.163 of

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2018 in O.S No.956 of 2012. Appellant is the sole defendant in a suit for

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specific performance of a contract, executed between her and the

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respondent, for sale of immovable property having an extent of 1.39 Ares

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F.A.O No.177 of 2019 3

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and a residential building thereon. Admittedly, the suit was decreed in

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favour of the respondent/plaintiff. Thereafter, the parties settled the matter

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and filed a compromise petition before the trial court under Order XXIII

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Rule 3 C.P.C. As per terms of the compromise, the appellant had agreed to pay off her liability towards the decree holder/respondent. It is seen that the matter was referred to Adalath and an award was passed on 09-01-

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Since the appellant failed to fulfil her obligations under the terms of

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the compromise, the respondent/decree holder filed an execution petition

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before the court below. The property in dispute was put to sale. It is pointed

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out by the learned counsel that to the respondent's dismay, it was found that approximately a sum of Rs.35 Lakhs was outstanding as liability towards State Bank of India, Kaloor Branch as the appellant had availed a loan by creating charge over the property. It is the case of the respondent

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that now he is called upon to discharge their liability also.

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F.A.O No.177 of 2019 4

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Even though the appellant filed an objection to a notice under

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Order XXI Rule 66 C.P.C raising a contention that the property put up for sale with under valuation, no evidence was adduced by the appellant to substantiate her plea. In Desh Bandhu Gupta v. N.L Anand & Rajinder Singh ((1994)1 SCC 131) , it has been clearly held about the importance of complying with Order XXI Rule 66 C.P.C. In spite of serving notice in this case on the petitioner and she filing a formal objections, she did not contest

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the matter unless she convinced the court that the sale was vitiated for

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legal reasons, she cannot claim any relief. In order to get a relief under Order XXI Rule 90 C.P.C, it must be established that the sale is vitiated on the ground of a material irregularity or fraud in publishing or conducting

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it. Apart from that the court must be satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. Here is

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a case where the appellant had raised a contention regarding under

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F.A.O No.177 of 2019 5

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valuation. Along with the appeal, the appellant attempted to produce a

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document to show that in 2014 adjoining land having an extent of 1.48

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Ares was sold for a sum of Rs.70 Lakhs. The document was produced with a

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view to establish that in 2019 the property must have been worth more than the upset price fixed by the court below. According to the appellant,

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the wide difference in price will cause prejudice to her.

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We are not impressed with the contention of the appellant for

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the reason that the appellant has not seriously attempted to prove any of

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the challenges now levelled against the proclamation. No material was produced before the court below to find that there was any material irregularity or fraud in publishing or conducting the sale. Considering the background of the case, that the decree sought to be executed is a product of a compromise and the reluctance of the appellant in fulfilling her

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obligations, we are not impressed with the contentions now raised by the

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F.A.O No.177 of 2019 6

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appellant.

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Having heard the learned counsel on both sides and on perusal

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of the records, we find no merit in the appeal. Hence, it is dismissed.

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All pending interlocutory applications will stand dismissed.

A. HARIPRASAD,

JUDGE.

N.ANIL KUMAR, JUDGE

amk

F.A.O No.177 of 2019 7

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APPENDIX

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PETITIONER'S EXHIBITS :

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ANNEXURE A1 TRUE COPY OF THE OBJECTION DATED 14.2.2019 FILED BY THE APPELLANT AGAINST THE DRAFT SALE PROCLAMATION FILED BY THE RESPONDENT HEREIN BEFORE THE LEARNED SUB JUDGE, ERNAKULAM.

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ANNEXURE A2 TRUE COPY OF THE E.A.NO.108/2019 IN E.P.NO.163/2018 FILED BY THE APPELLANT BEFORE THE LEARNED SUB JUDGE, ERNAKULAM.

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ANNEXURE A3 TRUE COPY OF E.A.NO.318/2019 IN E.P.NO.163/2018 FILED BEFORE THE THE HONOURABLE SUB COURT, ERNAKULAM BY THE APPELLANT.

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ANNEXURE A4 TRUE COPY OF THE COUNTER DATED 3.7.2019 FILED BY THE RESPONDENT HEREIN BEFORE THE LEARNED SUB JUDGE, ERNAKULAM AGAINST ANNEXURE A3.

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ANNEXURE A5 CERTIFIED COPY OF THE ORDER DATED 18.9.2019 IN E.A.NO.318/2019 IN E.P.NO.163/2018 PASSED BY THE LEARNED SUB JUDGE, ERNAKULAM.

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ANNEXURE A6 TRUE COPY OF THE SALE DEED NO.1434/5/2014 DATED 26.3.2016 OF EDAPPILLY SRO, WHICH WAS PRODUCED BEFORE THE SUB COURT, ERNAKULAM IN E.P.NO.163/2018 BY THE APPELLANT

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ANNEXURE A7 TRUE COPY OF THE LIST OF DOCUMENTS DATED 7.8.2019 FILED BEFORE THE HONOURABLE SUB COURT, ERNAKULAM IN E.P.NO.163/2018 BY THE APPELLANT

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RESPONDENT'S EXHIBITS : NIL.

Raziya Fazal v. Thomaskutty Eapen

Case brief

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Raziya Fazal v. Thomaskutty Eapen

Case brief

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