Dismissed

E.K.Achankunju v. Sharon Ben Mathew

Kerala HC7 Apr 2021FAO/16/2021

Case brief

AI extract

What is this about?

Appeal against dismissal of an application under Order XXI Rule 90 CPC to set aside a court sale. High Court upheld Execution Court order, noting judgment debtor failed to object to commission report or proclamation timely, and some property sold in other proceedings. Appeal allowed no ground.

What did the court decide?

Application to set aside sale is restored to Execution Court for confirmation of dismissal; appeal dismissed.

E.K.Achankunju Vs Sharon Ben Mathew — Execution and Attachment | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

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FAO.No.16 OF 2021

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AGAINST THE ORDER IN E.A NO.551/2017 IN E.P NO.225/2014 IN O.S No.208/2013 OF ADDITIONAL SUB COURT,KOTTAYAM

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APPELLANT/PETITIONER/JUDGMENT DEBTOR:

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E.K.ACHANKUNJU, AGED 56 YEARS, S/O. CHACKO, KOLLAMPARAMBIL HOUSE, NEDUMKUNNAM P.O, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK.

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BY ADVS. SMT.K.R.MONISHA SRI.THOMAS ABRAHAM (NILACKAPPILLIL)

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RESPONDENT/RESPONDENT/DECREE HOLDER:

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SHARON BEN MATHEW, KUTHUKALLANKAL HOUSE, NEDUMKUNNAM KARA, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, MARY KUTTY GEORGE, MALAYAMBURAM HOUSE, NEDUMKUNNAM KARA, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK, PIN - 686540.

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BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 07.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO.No.16 OF 2021 2

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JUDGMENT

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Dated this the 7^th day of April, 2021

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An application filed by the appellant under Order XXI Rule 90 CPC seeking to set aside a court sale held on 26.08.2017 was dismissed by Additional Sub Judge, Kottayam vide order passed on 01.02.2021. Aggrieved by the said order, this appeal is filed. The appellant is the judgment debtor. According to him, the decree holder caused to put 94 square metre of property out of a total extent of 1.41 Ares to sale. According to him, the property ought to have been divided in the east-west direction so as to facilitate enjoyment of the portion remaining after the sale. It was further contended that the court sale was not held by the decree holder in accordance with the directions issued by this Court in FAO No.01 of 2017 preferred against the order in E.A No.417 of 2015 in E.P No.225 of 2014. Another contention advanced was that the procedures mandated to be observed during conduct of sale of immovable property were not observed. It is also stated that 1.41 Ares of land was made useless by the decree holder in the process and that amounts to fraud. Accordingly, the sale held on 26.08.2017 was sought to be set aside.

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FAO.No.16 OF 2021 3

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The decree holder in the counter statement filed, denied the above averments. According to him, objection was not raised by the judgment debtor against the Commission Report and the proclamation. It is further contended that the application is a highly belated one and therefore will not sustain in the eye of law. The Execution Court found on evaluation of the averments and contentions raised by the parties that the application will not sustain and accordingly dismissed the same by the impugned order.

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The decree executed was one drawn following a compromise of the issues. The sale held on 26.08.2017 in execution proceedings was sought to be set aside for non-compliance of the directions issued by this Court in FAO No.01 of 2017 and also of the mandatory procedures prescribed for the conduct of a public auction by court. The Court has observed in the impugned order that sale of 2/3^rd portion of property owned by the judgment debtor was sought in satisfaction of the decree. An Advocate Commissioner was deputed and himself with the Assistance of Surveyor prepared a plan and report on 12.07.2017. For filing any objection to the Commission Report, the court below posted the case to 17.07.2017 and further to 19.07.2017. The judgment debtor did not file any objection. In the above context, the Execution Court has posted the

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FAO.No.16 OF 2021 4

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case to 24.07.2017, for settlement of proclamation. The judgment debtor sought for time and therefore, the case was further adjourned to 26.07.2017. On 26.07.2017, upset price was fixed for 2/3^rd portion of the attachment schedule property as per directions issued by this Court in the order passed in FAO No.01 of 2017. Thereupon, the counsel for the judgment debtor apprised the Execution Court that he was not holding a vakalath for the judgment debtor at the relevant time. The Execution Court discarded the above contentions. In the above context that the Execution Court was constrained to dismiss the application seeking to set aside the same.

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The learned counsel for the respondent pointed out that the contentions raised against the non utility of 1.41 Ares of land in the division of the property held and the underlying fraud are devoid of merits, since the said property has already been sold in another execution proceedings.

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This Court finds upon a scrutiny of the order passed by the Execution Court under challenge that the contentions raised by the appellant before this Court are the very same as those raised before the Execution Court and the Execution Court found those to have no merits and therefore discarded. In the view of this Court also Execution Court is justified in doing so. The Execution Court

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FAO.No.16 OF 2021 5

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had granted sufficient opportunities for the appellant to file objection to the Commission Report as well as to the proclamation. But the appellant did not avail those and thereby the Execution Court was constrained to pass the impugned order. The contention that 1.41 Ares of property have become useless in the division proposed by the Advocate Commissioner will not survive since it was sold in some other execution proceedings. Apart from all the above, as pointed out by the learned counsel the application itself is time barred.

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In the above circumstances, the Execution Court is perfectly justified in passing the impugned order dismissing the application. Absolutely no ground exists to reverse the order.

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Appeal fails for the reasons and is dismissed.

Sd/-

MARY JOSEPH

JUDGE

E.K.Achankunju v. Sharon Ben Mathew

Case brief

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E.K.Achankunju v. Sharon Ben Mathew

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