IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 144 of 2009()
1. FRANCIS, S/O.CHEMMUNDA SIMON,
... Petitioner
Vs
1. ROY, S/O.KONIKKARA JOHN,
... Respondent
2. LISSY, W/O.LATE CHEMMANDA PAULSON,
3. MERVIN PAULSON, S/O.LATE PAULSON,
4. JEEVAN, S/O.LATE PAULSON,
For Petitioner :SRI.R.D.SHENOY (SR.)
For Respondent :SRI.DINESH R.SHENOY
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :26/11/2009
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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F.A.O. No. 144 of 2009
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Dated this the 26th day of November, 2009
JUDGMENT
Joseph Francis, J.
This appeal is filed by the petitioner/2nd judgment debtor,
Francis, in E.A.No. 1250 of 2008 in E.P. No.412 of 2005 in
O.S.No. 327 of 1998 on the file of the IInd Additional Sub
Court, Trichur. The first respondent herein is the decree holder
and respondents 2 to 4 are other judgment debtors in that E.P.
2. The facts of the case are briefly as follows. The
first respondent filed the above suit for realisation of
money alleged to be due from Sri. Varghese, who is one of
the brothers of the appellant. Paulson is the other brother,
upon whose demise, respondents 2 to 4 were brought on the
party array as his legal representatives. It is the allegation of
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the plaintiff /1st respondent that Varghese had incurred debts on
account of credit given by the plaintiff/1st respondent during the
years 1993 to 1996. Varghese died in the year 1998. Subsequent
to his death, the plaintiff/1st respondent filed the above suit.
3. Though it is accepted that there was no privity of contract
between the plaintiff and the defendants, the claim for realisation
of money from the appellant and respondents 2 to 4 was based on
the premise that the interest of late Varghese devolved on the
appellant and respondents 2 to 4.
4. The Sub Court, Thrissur found that Varghese owed money
to the plaintiff. The decree specifically provided that the plaintiff/
1st respondent can execute the decree against defendants therein
only to the extent of any assets of deceased Varghese passing on to
the defendants. An issue was raised in the said suit by the 1st
respondent that Varghese was a legatee under the Will executed by
Simon (the father of the appellant, late Varghese and late Paulson).
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The trial court in its judgment held that Varghese was not a legatee
under the Will and hence had no interest in the properties taken in
by the said Will.
5. Aggrieved by the judgment of the court below, the first
respondent preferred a revision petition, C.R.P. 501/2005, before
this Court and this Court, without issuance of notice to the
appellant herein, modified the judgment dated 25.2.2003 of the Sub
Court, Thrissur. While modifying the judgment, this Hon’ble Court
held that Varghese was a legatee under the Will of Simon.
6. As the Order in C.R.P. 501 of 2005 was passed behind
the back of the appellant, he obviously was not aware about the
interference made by this Court in the Revision Petition. As per
the decree of the Sub Court, Thrissur in O.S. 327 of 1998, the
appellant, having not inherited any property upon the death of his
brother Sri. Varghese, was not a party against whom execution
proceedings could be taken for realization of money due from the
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assets of late Varghese. The appellant therefore did not foresee
any execution proceedings being taken out against him. But in the
year 2008, the appellant received notice in an application filed by
the 1st respondent. The said application was filed by the 1st
respondent with a prayer for taking delivery of the property, which
belonged to the appellant and his brother late Paulson. The said
property, which originally belonged to the father of the appellant,
devolved upon the appellant and his brother, late Paulson, by virtue
of the above said Will. According to the judgment of the trial
court, it was clearly held that late Varghese had no interest in the
properties taken in by the Will. But the 1st respondent proceeded
against the very same property.
7. Upon receipt of notice on the application for delivery, the
appellant made enquiries regarding the proceedings in EP
412/2005. The appellant then understood that he was set ex parte
on the execution side on 5.6.2006. The appellant therefore filed
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two applications dated 13.11.2008, viz., E.A.1250 of 2008, to set
aside the order setting him ex parte and E.A. 1247 of 2008 to
condone the delay in filing the said petition.
8. In support of the said two applications, the appellant was
examined as PW1. Accordingly evidence was let in to show
sufficient cause that the appellant had no notice of execution, that
the appellant was paralised for about 2 years from 2005, that there
was collusion between the respondents to defeat the appellant and
that the delay occurred not on account of any wilful or intentional
act of the appellant. There was no contra evidence from the
opposite side. The court below dismissed the applications by the
impugned order.
9. The 1st respondent brought to sale about 7 cents of
property, which is situated near ‘Saraj Round’ and the said property
was purchased for an amount of about Rs.7 lakhs. The said
property, it was found by the trial court, does not belong to late
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Varghese. One half of the share belongs to the appellant and the
other half belongs to another brother late Paulson, whose legal
representatives are respondents 2 to 4 herein. The court below has
not considered the applications looking into the merits of the case
and the application to condone the delay and to set aside the order
setting the appellant exparte were dismissed. Aggrieved by the
order of the court below, this appeal is filed invoking the provision
of Order XLIII Rule 1(ia) of the Code of Civil Procedure.
10. Heard the learned counsel for the appellant and the
learned counsel for the respondents.
11. The learned counsel for the appellant invited our
attention to the decision of the Apex Court reported in Desh
Bandhu Gupta v. N.L. Anand & Rajinder Singh ((1994) 1
SCC 131), in which it was held that service of notice to judgment
debtor under Order 21 Rule 66(2) and 54(1-A) is mandatory and
that sale without notice is a nullity. In the decision reported in
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Krishna Pillai v. Velayudha Kurup (1943 TLR 400 (FB) it was
held that service of notice under Order 21 Rule 22 C.P.C. is
mandatory and that execution proceedings held without such notice
will be void. In the decision reported in Rajagopala Aiyar v.
Ramanujachariyar & anr. (AIR 1924 Madras 431) it was held
that, while an application for execution falling under Order 21
Rule 22 to which clause (2) of that Rule is not applied, a sale in
execution is held without issuing notice provided for in clause (1)
the sale is absolutely void and not merely voidable as against the
person, to whom notice should have been but was not issued.
12. The learned counsel for the appellant invited our
attention to the decision in Khoobehand Jain & anr. v. Kashi
Prasad & ors. (AIR 1986 M.P. 66), in which it was held:
“The decree holders filed an application for
execution of a decree. Executing Court ordered to
issue a warrant of attachment of movable property on
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furnishing a list of movable property. Since decree
holders failed to submit the list, no warrant of
attachment was issued. The Court adjourned the case
awaiting the execution of warrant. On adjourned date,
neither the decree holders nor their counsel appeared in
the Court when the case was called out. The execution
application was therefore, dismissed in default of
appearance of decree holders. Decree holders
submitted an application u/O. 21 R.106 for restoration
of execution case and gave reason of their illness for
their absence. They also submitted another application
u/s. 5 of the Limitation Act for condoning delay in
making restoration application. Dismissal of the said
application was challenged.
Held, that the date on which the execution
application was dismissed for default of appearance of
the decree holders, was not a date fixed for ‘hearing’
within the meaning of R.105. It was a date awaiting
report as to execution of the warrant which was
supposed to be issued on submission of a list of
movable property by the decree holders within three
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days of the earlier order. Consequently, the dismissal
of execution application was not under R.105(2) of
O.21 and therefore, the provisions of R.106 are not
attracted. The dismissal of the execution application in
default of appearance is referable to inherent powers of
the Court.
Held further that, since the dismissal of the
execution application was under inherent powers, the
application for its restoration will be by invoking the
inherent powers of the Court and in that event, no time
limit is prescribed for invoking the inherent powers of
the Court.”
13. Admittedly, the appellant is the second judgment debtor
in the money decree in O.S.No. 327 of 1998 on the file of the Sub
Court, Trichur. The first respondent/decree holder filed E.P. No.
412 of 2005 before the IInd Additional Sub Court, Trichur for
execution of that decree. The petition schedule property, having
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an extent of 7 cents, was sold in court auction on 14.6.2007 and
the sale was confirmed on 16.8.2007. E.A. 1250 of 2008 to set
aside the ex parte order and E.A. 1247 of 2008 to condone the
delay in filing that petition were filed by the second judgment
debtor on 13.11.2008.
14. On perusing the lower court records, it is seen that E.P.
412 of 2005 was filed by the decree holder for realisation of an
amount of Rs.12,85,378/- and Rule 22 notice was ordered on
23.8.2005 and that notice was served on the second judgment
debtor, Francis, and he was set ex parte on 22.2.2006. On
22.2.2006, Rule 66 notice was ordered and it was served on him
and he was set ex parte on 5.6.2006. Another Rule 66 notice was
was again ordered on 26.9.2006 and that notice was personally
served on the second judgment debtor, Francis, and he was set ex
parte on 8.11.2006. The decree holder filed E.A.No.1331 of 2006
to attach the petition schedule property on 15.7.2006 in E.P.No.
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412 of 2005 and notice was personally served on the second
judgment debtor on 18.8.2006. Therefore, it cannot be said that
the second judgment debtor had not served with notice under
Order 21 Rule 22 or Rule 66 or 54(1-A) of C.P.C.
15. Order 21 Rule 106 provides that an application to set
aside the ex parte order in execution shall be made within 30 days
from the date of the order and in the case of of an ex parte order
the notice was not duly served within 30 days from the date when
the applicant had knowledge of the order.
16. In the present case, notice under Rule 22, Rule 66 and 51
(1-A) were duly served on the appellant/second judgment debtor in
appropriate time and he was set ex parte. Section 5 of the
Limitation Act makes it clear that that section is not applicable to
an application under any of the provisions in Order 21 C.P.C.
Therefore the delay in filing the petition to set aside the ex parte
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order cannot be condoned. Therefore, the learned Sub Judge is
justified in dismissing both the petitions.
17. Accordingly this appeal is dismissed. There is no order as to
cost.
(K. M. JOSEPH)
Judge
(M.L. JOSEPH FRANCIS)
Judge
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