Appeal against order dismissing application to set aside auction sale. Held application under O.XX.I Rule 90 CPC is time barred as filed beyond limitation period of 60 days. Delays due to illness not sufficient to condone time.
Application to set aside sale dismissed on grounds of limitation.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 20TH DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943
F.A.O.NO. 220 OF 2009
AGAINST THE ORDER DATED 31.07.2009 IN E.A.NO242 OF 2009 IN E.P.NO.278 OF 2002 IN O.S.NO.379 OF 1997 OF II ADDITIONAL SUB COURT, THRISSUR
APPELLANT:
SREENATH,
AGED 46 YEARS, S/O SUKUMARAN, VALIPARAMBIL HOUSE, KAZHIMBRAM.P.O, THRISSUR, DISTRICT.
BY ADVS. SRI.T.H.ABDUL AZEEZ P.M.ABDUL JALEEL (KODUNGALLUR) K.SHAMEER MOHAMMED HASHIM V.H.
RESPONDENTS:
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*IMPLEADED AS ADDITIONAL RESPONDENTS 5 TO 15
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BEING THE LEGAL REPRESENTATIVES OF THE DECEASED 3RD RESPONDENT VIDE ORDER DATED 29.10.2012 IN I.A.NO.671 OF 2012.
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 10.12.2021, THE COURT ON 20.12.2021 DELIVERED THE FOLLOWING:
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JUDGMENT
Ajithkumar, J.
This is an appeal filed under Order XLIII, Rule 1(j) of the Code of Civil Procedure, 1908.
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Their property was mortgaged as security for the loan. The decree passed in the suit was put in execution and the property of the appellant was proclaimed for sale. The appellant met with an accident at that time and was undergoing treatment in a hospital. Therefore, he was not able to attend the court or file any objection to the settlement of proclamation. 33 cents of property worth Rs.50 lakhs was bid by the 4th respondent just for an amount of Rs.4,25,000/-. Only when a notice on the cheque application was received, the appellant knew about the same. Immediately, he filed the petition, E.A.No.242 of 2009. It is contended that there was sufficient reason for the appellant’s failure to approach the court earlier. The sale was conducted without assessing the market value of the property, and therefore, the sale is vitiated by fraud and irregularity. By such sale, the appellant was put to much loss and substantial injury. For the said reason the appellant seeks to set aside the sale.
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beyond the period of 60 days, it was time barred. The learned counsel placed reliance in this regard on Francis v. John Britto [2004 (3) KLT 1113 : 2004 KHC 1627] and Aarifaben Yunusbhai Patel and others v. Mukul Thakorebhai Amin and others [AIR 2020 SC 2344] .
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before the executing court in order to prove the inability of the appellant for approaching the court and file the application.
In the said circumstances, the appeal can only fail. We therefore dismiss the appeal. No order as to costs.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
2 issues framed by the court
Whether an application to set aside a sale under Order XXI, Rule 90 CPC filed beyond six months is time barred.
Whether the subsequent events in the life of the appellant can be considered for condoning delay in filing an application under O.XX.I Rule 90.
Colour shows how this judgement treated each authority
Francis v. John BrittoReferred¶59
Francis v. John Britto [2004 (3) KLT 1113 : 2004 KHC 1627]
Aarifaben Yunusbhai Patel and others v. Mukul Thakorebhai Amin and othersRelied on¶59
Aarifaben Yunusbhai Patel and others v. Mukul Thakorebhai Amin and others [AIR 2020 SC 2344] · Who else cites this
3 provisions across 1 enactments
SREENATH
THE NEDUNGADI BANK LTD
A.V.WILSON
V.K.DHAKSHAYANI
SUDHEERKUMAR
V.S.KULOTHAMAN
ANIL K. NARENDRAN
P. G. AJITHKUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
