Saji M Mathew Vs V.N Varghese

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OPC 1482/2023

2025:KER:25095

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE BASANT BALAJI

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MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947

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OP(C) NO. 1482 OF 2023

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EP NO.50 OF 2011 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL

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COURT, THIRUVALLA

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PETITIONER/S:

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SAJI M MATHEW
AGED 61 YEARS

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S/O SIMON, MANNATTU VEEDU, KIZHAKKEN MUTHOOR, KUTTAPPUZHA
P.O., KUTTAPPUZHA VILLAGE, PIN- 689103, PIN - 689103

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BY ADVS.
JACOB P.ALEX
JOSEPH P.ALEX
AMAL AMIR ALI
MANU SANKAR P.

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RESPONDENT/S:

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1 V.N VARGHESE S/O NINAN PHILIPOSE, VADAKKEPARAMPL HOUSE, NEAR SCS JUNCTION, THIRUVALLA, PIN- 689101, PIN - 689101

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2 AMMUKKUTTY VARGHESE AGED 82 YEARS W/O V.N VARGHESE VADAKKEPARAMPL HOUSE, NEAR SCS JUNCTION, THIRUVALLA, PIN- 689101, PIN - 689101

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3 M/S CVP PROPERTIES PVT LTD REGISTERED OFFICE, CROSS JUNCTION, THIRUVALLA, PIN- 689101 REPRESENTED BY MANAGING DIRECTOR, C.P. JOHN, CHANDRAVRUTHIL VEEDU, CHANDRAVRUTHIL VEEDU, THUKALASSERY, THIRUVALLA P.O.,, PIN - 689101

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4 C.P JOHN AGED 59 YEARS

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OPC 1482/2023

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MANAGING DIRECTOR, M/S.CVP PROPERTIES S/O LATE C.V
PHILIPOSE, CHANDRAVRUTHIL VEEDU, THUKALASSERY, THIRUVALLA
P.O., PIN- 689101, PIN - 689101

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5 THE PRESIDENT
THIRUVALLA PARLIAMENT SQUARE RESIDENTS ASSOCIATION CVP
PARLIAMENT SQUARE BUILDING CROSS JUNCTION, THIRUVALLA PIN -
689101, PIN - 689101

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BY ADVS.
Sarin
PARVATHI KRISHNA(K/000807/2022)
P.SANTHOSHKUMAR (KARUMKULAM)(K/784/1992)
SAUMYA.P.S(K/003383/2022)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24.03.2025, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:

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OPC 1482/2023

2025:KER:25095

JUDGMENT

(Dated this the 24^th day of March 2025)

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The petitioner is the auction purchaser in E.P.No.50 of 2011 in O.S.No.175 of 2007 on the files of the Sub Court, Thiruvalla. Respondent Nos.1 and 2 are decree holders, and respondent Nos.

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3 and 4 are judgment debtors. The fifth respondent is the claim

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petitioner.

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O.S.No.175 of 2007 is filed against respondents Nos.3

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and 4, for the return of money. The suit was decreed on 27.2.2009,

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allowing respondents 1 and 2 to realise an amount of Rs.9,04,000/- together with interest. On the strength of the decree, E.P.No.50 of 2011 was filed seeking realisation of the decree amount by sale of an apartment in the residential complex constructed by respondents Nos.3 and 4. The court sale did not

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take place as there were no bidders. Later, respondent Nos.1 and

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4

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OPC 1482/2023

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2025:KER:25095 2 filed E.A. No.134 of 2014, seeking a sale of the

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building/godown purportedly bearing No.XXIV-540(2) of Thiruvalla Municipality, being the cellar floor of a building known as CVP Parliament Square. The auction was conducted on 3.9.2015. The petitioner participated in the said auction and successfully bid the auctioned property for an amount of Rs.15,00,100/-. One-fourth of the auction amount was deposited on 03.09.2015, and the balance sale consideration and stamp duty

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was paid, and the sale was confirmed on 15.12.2015.

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While so, the 5^th respondent filed E.A.No.187 of 2015, to

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set aside the sale under Order XXI Rule 90 and 91 CPC on the ground that the property sold in auction is the parking area of the building and the members of the 5^th respondent are having a right over the property sold. The petitioner, therefore, made enquiries with the local authority, and it was realised that the property now

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sold and bought by him was not assigned any number by the

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5

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OPC 1482/2023

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2025:KER:25095 Thiruvalla municipality, and the entire proceedings leading to the

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auction held on 03.09.2015 is vitiated by gross mistakes, illegalities and irregularities. Therefore, E.A.No.74 of 2023 was filed under section 47, read with Sections 144 and 151 CPC, to set aside the confirmation of court sale and to return the purchase price and stamp duty.

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The execution court, by Ext.P7, dismissed the application, holding that if there was any irregularity or fraud in the sale, an application under Order 21 Rule 90 is the remedy, and a petition under Section 47 will not lie, and that too after the period of limitation under Article 127 of the Limitation Act.

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Counsel for the petitioner, Sri.Jacob P Alex submitted that under Section 47 CPC, all questions arising between the parties to the suit in which the decree was passed, or their representatives,

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and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and

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OPC 1482/2023

2025:KER:25095

not by a separate suit. Explanation II-(a) to the said Section states

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that a purchaser of the property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed. Explanation II-(b) to Section 47 CPC prescribes that all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section. He relied on the judgment of the apex court in Desh Bandhu Gupta v. N.L.

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Anand & Rajinder Singh [(1994) 1 SCC 131, wherein it is held

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as follows:

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“17. Under Section 47 all questions relating to execution, discharge or satisfaction of the decree should be determined by the Executing Court alone. The pre-sale illegalities committed in the execution are amenable to the remedy under Section 47. Post-sale illegalities or irregularities causing substantial injury to the judgmentdebtor are covered under Order 21 Rule 90. Sub-rule (1) thereof covers the field of material irregularities or fraud in publicity or conducting the sale. Sub-rule (2) enjoins proof thereof, and the court should find that by reason thereof, the applicant sustained substantial injury. The total absence of

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OPC 1482/2023

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2025:KER:25095 drawing up of the proclamation of sale and settlement of its term by judicial application of mind renders the sale a nullity being void. It is covered by Section 47. The non-application of mind whether the sale of a part of the property would satisfy the decree debt is a material irregularity causing substantial injury to the appellant attracting Order 21 Rule 90. In either case, the sale is liable to be set aside. It is true that there is a distinction between mere irregularity and material irregularities, and the sale is not liable to be set aside on proof of mere irregularity. It must be material irregularity, and the court must be satisfied that, on account thereof, substantial injury was sustained by the appellant. xxx xxx xxx.”

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Reliance was placed on the judgment of the apex court in

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Harnandrai Badridas v. Debidutt Bhagwati Prasad and

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others [(1973) 2 SCC 467] , wherein the apex court had held thus:

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Section 47, in our view, should be construed liberally. As far back as in 1892, the Privy Council spoke strongly in favour of putting a liberal construction on Section 244 of the Code of Civil Procedure of 1882 which corresponded to present Section 47 of the Code of Civil Procedure 1908. The Privy Council reiterated this in Ganapathy v. Krishnamachariar. If a liberal construction be put upon Section 47 it is difficult to understand why a decree-holder who has been a party to the decree will shed his character as such party merely upon purchasing the property at the execution sale. After all, a decreeholder purchases the property in execution of his decree with the permission of the court. There is no reason why he should not retain his character of a party to the suit until the delivery of possession to him of the property purchased by him. Having regard to this consideration, if any question is raised by the

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OPC 1482/2023

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2025:KER:25095 judgment-debtor at the time of delivery of possession concerning the nature of the rights purchased and if the judgment-debtor offers any resistance to delivery of possession, the question must be one which in our view relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit.”

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Coming to the facts of this case, it can be seen that the petitioner participated in the auction based on the proclamation issued as per Ext.P2. A perusal of Ext.P2 shows that a godown is sought to be sold, having an extent of 2,550 sq.ft. in the cellar portion of CVP Parliament Square. The petitioner obtained Ext.Nos.P6(a) and P6(b) from the Public Relation Officer of Thiruvalla Municipality, which states that no number is assigned to the property shown in the proclamation schedule. By the time, the sale was conducted and confirmed, the petitioner had remitted the entire sale consideration. In such circumstances, the petitioner has filed Ext.P6 under Section 47 CPC to set aside the order confirming the sale and for the return of purchase money

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and stamp duty as he is not going to get possession of the property

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OPC 1482/2023

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2025:KER:25095 sold in the auction, which is non-existent as per Ext.Nos.P6(a)

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and P6(b).

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When an application is filed under Section 47 specifically relating to delivery of property to an auction purchaser, the court ought to have applied its mind into the merits of the case and then decide whether the petitioner is entitled to a decision on merits. The Execution court has dismissed the application in limine on the ground that since irregularities are projected regarding the

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sale, an application under Order 21 Rule 90 CPC will alone lie.

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When Explanation II-(b) to Section 47 gives power to the execution court to decide the questions relating to the delivery of possession of the property to the purchaser or his legal representative in execution, discharge or satisfaction of the decree, the Execution Court ought to have gone into the contentions raised by the auction purchaser and also the nature of

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the property which was sold in execution. In such circumstances,

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OPC 1482/2023

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I am of the view that Ext.P7 requires reconsideration.

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In the result, this O.P.(C.) is allowed, Ext.P7 order dated 13.6.2023 in E.A.No.74 of 2023 in E.P. No.50 of 2011 passed by the Sub Judge, Thiruvalla, is set aside. The Execution court is directed to reconsider Ext.P6, after giving an opportunity of hearing to the decree-holder as well as the judgment debtor.

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It is made clear that this court has not gone into the merits of the contentions raised by the auction purchaser.

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SD/- BASANT BALAJI JUDGE

dl/

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OPC 1482/2023

2025:KER:25095

	`APPENDIXOF OP(C) 1482/2023`
`PETITIONER EXHIBITS`
`Exhibit P1`	`TRUE COPY OF EA 134 OF 2014 IN EP NO. 50 OF 2011` `IN OS NO. 175 OF 2007 ON THE FILES OF SUB COURT,` `THIRUVALLA`
`Exhibit P2`	`TRUE COPY OF THE SALE NOTICE ISSUED UNDER ORDER` `21 RULE 66, CPC BY THE SUB COURT, THIRUVALLA IN` `EP 50 OF 2011`
`Exhibit P3`	`TRUE COPY OF THE REPORT DATED 03.09.2015` `SUBMITTED BY THE AMIN BEFORE THE SUB COURT,` `THIRUVALLA`
`Exhibit P4`	`TRUE COPY OF THE ORDER DATED 15.12.2015 IN EP NO.` `50 OF 2011 IN OS NO. 175 OF 2007 OF SUB COURT,` `THIRUVALLA`
`Exhibit P5`	`TRUE COPY OF THE EA. NO. 187 OF 2015 IN EP NO. 50` `OF 2011 BEFORE SUB COURT, THIRUVALLA`
`Exhibit P6`	`TRUE COPY OF EA NO. 74 OF 2023 IN EP NO. 50 OF` `2011 IN OS NO. 175 OF 2007 OF SUB COURT,` `THIRUVALLA`
`Exhibit P6(a)`	`TRUE COPY OF THE LETTER DATED 06.07.2023 BEARING` `NO. R3/13511/2023 ISSUED BY THE PUBLIC` `INFORMATION OFFICER, THIRUVALLA MUNICIPALITY`
`Exhibit P6(b)`	`TRUE COPY OF THE LETTER DATED 10.07.2023 BEARING` `NO. E4/13357/2023 ISSUED BY THE PUBLIC` `INFORMATION OFFICER, THIRUVALLA MUNICIPALITY`
`Exhibit P7`	`TRUE COPY OF THE ORDER DATED ON. 13.06.2023 IN EA` `NO. 74 OF 2023 IN EP NO. 50 OF 2011`
`Exhibit P8`	`TRUE COPY OF THE ORDER DATED 13.06.2023 IN EA NO.` `187 OF 2015 IN EP NO. 50 OF 2011 IN OS NO. 175 OF` `2007`
`Exhibit P9`	`TRUE COPY OF THE PROCEEDINGS SHEET OF SUB COURT` `THIRUVALLA IN EP NO. 50 OF 2011 BETWEEN 29-07-` `2011 AND 12-01-2016`

Saji M Mathew v. V.N Varghese

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Saji M Mathew v. V.N Varghese

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