IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 207 of 2009()
1. ANNIE JOHNY,
... Petitioner
Vs
1. BAHULEYAN, S/O.T.K.NARAYANAN,
... Respondent
For Petitioner :SRI.K.RAMACHANDRAN
For Respondent :SRI.O.RAMACHANDRAN NAMBIAR
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :22/12/2010
O R D E R
THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ.
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F.A.O. No. 207 of 2009
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Dated this the 22nd day of December, 2010.
JUDGMENT
Bhavadasan, J,
A litigation, which started in 1987 still lingers on with no
end in sight in the near future.
2. It all started when the respondent herein instituted
O.S. 348 of 1987 before the Sub court, North Paravur, initially as one
for specific performance, later confined to one for return of advance
amount. Initially the suit was against Sri. Peter, the predecessor in
interest of the appellant and others herein. The original defendant
died and his legal heirs were brought on the party array as
defendants 2 to 4. The plaintiff could not get the summons served
on the third defendant and ultimately he chose to give up his reliefs
as against him and confined his prayer as against defendants 2 and
4. It appears that they remained ex-parte and a decree for a sum of
Rs.50,000/- with 12% interest followed. The decree holder then
filed E.P.213 of 1990 for realisation of a sum of Rs.78,390/- with
F.A.O.207/2009. 2
future interest and costs. It may be noticed that the decree was
charged on the property involved in these proceedings. In execution
of the decree, sale was ordered on 22.10.1992 and that was
challenged before this court in C.R.P. 2574 of 1992. That revision
petition was disposed of by order dated 18.1.1993 adjourning
further proceedings in execution for a period of four months from the
date of order, within which period , the second judgment debtor was
given a right to settle the amount and to have the decree satisfied. It
is claimed that on 15.1.1993 an amount of Rs.10,000/- had been
paid. However, the benefit of the order in the CRP was not availed of
by the judgment debtors.
3. The sale was held on 1.10.1993 for a sum of
Rs.89,529/- and the decree holder purchased the same. That sale
was challenged by judgment debtors 2 and 4 by filing E.A.843 of
1993 and that was disposed of by the executing court confirming the
sale, but granting time to the judgment debtors by way of concession
to pay the decree amount on or before 24.3.1994. The said order
was challenged in C.M.A. 152 of 1994 before this court. Taking note
of the submission made by the judgment debtors that they were
F.A.O.207/2009. 3
frantically trying to raise the money for paying the decree debt, by
judgment dated 14.6.1994 this court allowed the judgment debtors to
approach the executing court for enlargement of time. The judgment
debtors filed E.A. 545 of 1994 before the executing court on
22.11.1994 seeking to have the decree amount discharged by
instalment payments. The executing court dismissed the said
application on 22.11.1994 and the sale was confirmed on the same
day. On 30.1.1995, the sale certificate was issued. Thereafter, the
decree holder filed E.P.112 of 1995 for delivery of the property.
4. It appears that the second judgment debtor filed
E.A.202 of 1996 before the executing court seeking that the property
in his possession may be demarcated as it was lying contiguously
with the property owned by the fourth defendant in the suit and the
fourth defendant had additional share of 1/3rd share as per a gift
deed. That application was dismissed by order dated 3.4.1996. The
said order was challenged in C.R.P. 1073 of 1996 before this court.
That was disposed of by observing that in the earlier C.R.P. and
C.M.A. filed by them before this court, the present contentions were
F.A.O.207/2009. 4
not taken therein and accordingly C.R.P. 1073 of 1996 was
dismissed.
5. It appears that one Leelamma, the sister of the first
defendant, late Peter, filed E.A. 451 of 1996 in E.P. 112 of 1995 in
O.S. 348 of 1987 claiming 1/10th right over the property contending
that the decree holder was not entitled to get delivery of possession
of the property. The said application was dismissed on 11.9.1998.
6. It is claimed by the appellant herein that the judgment
debtors had also contended that the decree holder is entitled to only
2/3d share over the property since the decree was confined to
defendants 2 and 4 and as the third defendant had a share in the
property since there was no decree against him, his share could not
be brought to sale. Meanwhile, Leelamma as against the order in
E.A. 451 of 1996, filed E.F.A. 30 of 1998 before this court and this
court by judgment dated 10.11.1998 set aside the impugned order
and remanded the matter to the executing court for fresh
consideration. After remand, the executing court upheld the
contentions of Leelamma. Against the said order, the decree holder
F.A.O.207/2009. 5
came up in E.F.A.24 of 1999 before this court and the appeal was
allowed and it was held that Leelamma had no subsisting rights over
the property and the earlier order was restored and the delivery
application was restored to file. It was thereafter that E.A. 548 of
2000 was filed seeking delivery and that was allowed. Against the
said order, judgment debtors 2 and 4 filed C.R.P. 2622 of 2000
before this court. Therein, they arrayed third defendant in the suit as
second respondent and this court by order dated 29.11.2000 found
that the property charged and purchased by the decree holder can
be delivered to the decree holder. The decree holder filed R.P. 573
of 2000 before this court. In the review petition, this court held that
defendants 2 and 4 cannot resist the claim for delivery and the order
for delivery of the entire property was passed by the executing court
on the basis of the rights said to belong to the third defendant and
the order of the executing court was confirmed by order dated
18.1.2001. Even though S.L.P. 3959 of 2001 was filed before the
Supreme Court, that was dismissed by order dated 29.11.2001.
7. It is claimed by the appellant herein that this court had
occasion to consider whether the 1/3rd right over the suit property
F.A.O.207/2009. 6
was not available for sale by order dated 13.1.2004 in Ex.F.A.29 of
2002 by this court. In the meanwhile, one Varghese, S/o. Joseph
claiming to be a legatee under the Will executed by the third
defendant contended that the sale could not be proceeded with, as
the property has devolved on him. He also filed O.S. 378 of 2001 for
partition and separate possession of 1/3rd share over the suit
property. The said Varghese filed O.P.19597 of 2002 to direct the
Additional Sub Court, North Paravur to pass orders on I.A. 4218 of
2001 in O.S.348 of 1987 and the obstruction petition in O.S.348 of
1987 before the Additional Sub Court, North Paravur. That Original
Petition was disposed of by order dated 23.7.2002 directing the
executing court to consider the contentions raised by him. The
executing court dismissed E.A. 851 of 2001 in E.P.112 of 1995 on
12.8.2002 stating that there is no need to decide the question afersh
since the High Court had taken a view in the R.P. with regard to the
matter. Even though that was challenged before this court by
Varghese, the appeal was dismissed by order dated 13.1.2004
observing that if Varghese had filed any application under Order 21
Rule 97, the said application may be disposed of in accordance with
law by the executing court.
F.A.O.207/2009. 7
8. Varghese then filed E.A. 570 of 2002 claiming right
over the property and resisting delivery. E.A. 570 of 2002, E.P. 112
of 1995 and O.S. 348 of 1987 before the Sub Court, North Paravur
were tried jointly and the court below dismissed the suit and the
execution application by a common judgment dated 14.7.2004. The
order in the execution application and the judgment and decree of
the Sub Court, North Paravur were challenged before this court as
per Ex.F.A. 33 of 2004 and R.F.A.614 of 2005. A common judgment
was rendered on 30.6.2006, by which this court allowed the present
appellant to file a fresh application by depositing in the execution
court the amount as contemplated under Order XXI Rule 89 C.P.C.
In compliance with the said order, it is claimed by the appellant that
she had deposited the amount and filed E.A.565 of 2007 for
necessary reliefs. That E.A. was opposed by the decree holder
stating that it is barred by limitation. On 3.7.2008 E.A. 565 of 2007
was dismissed by the Sub Court stating that the application is barred
by limitation.
F.A.O.207/2009. 8
9. According to the appellant, after finding that the
requisite amount had been deposited by the appellant, the court
below had erred in dismissing the application on the ground of
limitation. It is interesting to note that in the meanwhile the initial
finding of the execution court that the present appellant had actually
deposited the correct amount was sought to be reviewed by filing
E.A. 855 of 2008, the executing court dismissed the same by order
dated 22.7.2008. The appellant has come to know that the said
order was challenged before this court in W.P.(C)25410 of 2008.
That was disposed of by order dated 22.8.2008. But the appellant
claims that she had no notice of the same. Thereafter the present
order dated 7.8.2009 was passed.
10. Learned counsel appearing for the appellant
contended that even going by the decree only 2/3rd share over the
property, which consists of 6 cents and a house, could have been
brought to sale. According to learned counsel, decree holder had
given up his rights as against the third defendant and therefore his
share in the property could not be touched. It was contended that
this contention on behalf of the appellant was infact upheld at one
F.A.O.207/2009. 9
stage of the proceedings. Even otherwise, according to learned
counsel, it is trite that the charge granted as per the decree could
have force only as against the 2/3rd share owned by defendants 2
and 4. Viewed from any angle, the proper course ought to have
been to get the share of defendants 2 and 4 sold and thereafter seek
partition of the property. At any rate, according to counsel, it is not
legal for the decree holder to seek delivery of the entire property. It
was also contended that the decree amount was only Rs.50,000/-
with interest and as on the date of the filing of the execution petition,
the amount due was Rs.78,390/- with future interests and costs. It
was quite unnecessary to sell the entire property in order to satisfy
the decree. The execution court has not applied its mind and it is
also contended that the procedure under Order 21 Rule 64 has not
been followed and that, infact vitiates the sale and entire
proceedings thereafter. Learned counsel also contended that the
court below has erred in law in understanding the true purport of the
judgment in Ex.F.A.33 of 2004 rendered by this court. In paragraph
14 of the said judgment what is stated is that the appellant before
this court is permitted to deposit the entire amount contemplated
under Order 21 Rule 89 and thereafter to file the petition seeking
F.A.O.207/2009. 10
necessary reliefs. The court below, according to learned counsel,
has construed it as a permission granted by this court to file a
petition under Order 21 Rule 89. It is not so. Apart from all these
facts, according to learned counsel, this is a case where a widow and
a maiden are left with no remedy, but to approach the court to save
a shelter for them. Learned counsel contended that if delivery is
effected, the appellant will be thrown to streets.
11. Learned counsel also pointed out that it is not as if
even after the sale has been confirmed, it could not be set aside. In
support of his contention, learned counsel relied on the decision
reported in Kharati Lal v. Raminder Kaur ((2000) 3 SCC 664).
Learned counsel also relied on the decision reported in Gnan Das v.
Paulin Moraes (1998(2) KLT 88) to contend for the position that it is
the duty of the court under Order 21 Rule 64 to ascertain whether the
entire property needs to be sold. Having not done so, the sale is
vitiated. As far as the order in W.P.(C) 25410 of 2008 is concerned,
on which heavy reliance is placed by the decree holder, learned
counsel relied on the decision reported in Thambi v. Mathew (1987
F.A.O.207/2009. 11
(2) KLT 848) and pointed out that since there was no notice of the
proceedings to the appellant, she is not bound by the same.
12. Learned counsel appearing for the contesting
respondent before this court on the other hand contended that the
contentions taken by the appellant before this court are devoid of
merits. The interpretation now sought to be given to paragraph 14 of
the judgment in Ex.F.A.33 of 2004, according to learned counsel, is
mischievous. According to learned counsel, even though the time for
filing the petition under Order 21 Rule 89 could not be extended by
the appellant, even assuming that this court had done so, the
application in pursuance to the said order was filed one year
thereafter and on that ground also the appellant is not entitled to any
relief. Counsel pointed out that it is trite that having taken recourse
to Order 21 Rule 89 initially and failed in that attempt and then could
not take recourse under Order 21 Rule 90. After having done that
also, the appellant cannot now revert back to Order 21 Rule 89.
The judgment debtors as well as the predecessors in interest have
taken all possible steps to forestall the execution proceedings and
they had failed in their attempts. In the proceedings before this
F.A.O.207/2009. 12
court and before the apex court, it was ordered that the entire
property be delivered. Therefore, the contention now raised that 1/3rd
share of the property cannot be delivered has no merits.
13. In support of his contention that Order 21 Rule 89
cannot now be urged, learned counsel relied on the decision reported
in Ittiathi Gopalan v. Nani Amma Ammukutty Amma (AIR 1957
Trav.-Co. 107), Joginder Kaur v. Financial Commissioner, Punjab
(AIR 1975 Punjab and Haryana 15), Prakash Kaur v. Sandhooran
(AIR 1979 Punjab and Haryana 36), Pathummakutty v.
Thekkechalil Kathiyumma (AIR 1990 Kerala 286) and Mangal
Prasad v. Krishna Kumar (AIR 1977 Allahabad 147).
14. Learned counsel also contended that the time fixed
by the statute for filing an application under Order 21 Rule 89 is sixty
days. It is well settled that Section 5 of the Limitation Act had no
application to the execution proceedings and therefore there is no
question of extending the time. If the application was not filed within
the time stipulated, that was the end of the matter. In support of his
contention, he relied on the decisions reported in Thangammal v. K.
F.A.O.207/2009. 13
Dhanalakshmy (AIR 1981 Madras 254), Kathyee Cotton Mills Ltd.
Alwaye v. Padmanabha Pillai (1957 KLJ 1167), Mohan Lal v. Hari
Prasad Yadav ((1994) 4 SCC 177), Pathummakutty v.
Thekkechalil Kathiyumma (AIR 1990 Kerala 286), Francis v. John
Britto (2004(3) K.L.T. 1113), Challamane Hunchha Gowda v. M.R.
Tirumala ((2004) 1 SCC 453) and Munni Lal v. Smt. Sona (AIR
1982 Allahabad 29).
15. According to learned counsel appearing for the
contesting respondent, apart from the fact that the order to deliver
the entire property had been confirmed by the apex court, the actual
right of the third defendant was lost by sale and nothing remained
thereafter. After the sale had been confirmed, the challenge by the
judgment debtor cannot be countenanced. In support of his
contention, learned counsel relied on the decision reported in
Pathummakutty’s case (supra), Chowdhari Abdul Subhan Sahib
v. Kante Ramanna (AIR 1945 Madras 161), Mohammad Umar v.
Prem Singh (AIR 1947 Lahore 100), Sagar Mahila Vidyalaya,
Sagar v. Pandit Sadashiv Rao Harshe ((1991) (3) SCC 588),
F.A.O.207/2009. 14
Pattam Khader Khan v. Pattam Sardar Khan ((1996) 5 SCC 48)
and Janak Raj v. Gurdial Singh (AIR 1967 SC 608).
16. Learned counsel emphasized that even though
several opportunities were given by the courts in various proceedings
to the judgment debtors to wipe off the decree debt by paying the
amount, they did not avail any of those opportunities, instead, they
have been resorting to dilatory tactics to keep the decree holder at
bay. The decree was obtained, according to learned counsel, as
early as on 11.12.1989 and the decree holder is still to reap the
fruits of the decree. May be it is harsh on the appellant. But, that is
not a justification to hold in favour of the appellant. The sale had
been confirmed and delivery had been ordered. There is no merit,
according to learned counsel, in any of the contentions taken by the
appellant and the appeal is only to be dismissed.
17. As far as the legal principles relied on by the counsel
on both sides, there can be no quarrel. One cannot doubt those
propositions.
F.A.O.207/2009. 15
18. The appellant places considerable reliance on the
judgment rendered by this court in Ex.F.A. 33 of 2004 and R.F.A. 614
of 2005. Those proceedings were disposed of by a common
judgment dated 30.6.2006. It appears that in the said proceedings
additional 4th and 5th respondents had filed I.A. 849 of 2006 praying
that they may be allowed to discharge the entire debt so that the
property can be saved. This court had noticed that the said petition
was filed under Section 151 CPC. The prayer in the said petition
was to allow the second petitioner, who is the second defendant, who
is impleaded as additional fourth respondent, to discharge the
decree debt in O.S. 348 of 1987 by paying in cash the entire decree
amount after deducting the sum of Rs.10,000/-, which has already
been paid. It is also observed that the petition is filed under Order 21
Rule 80. While disposing of the proceedings, it was observed as
follows:
“In the above circumstances, learned counsel for
the petitioner in I.A.849 of 2006 requested that the
petitioner may be allowed to withdraw the petition, giving
him an opportunity to move an appropriate application
before the lower court under Order 21 Rule 89 of the
CPC.
F.A.O.207/2009. 16
On hearing both sixes, I find that the request made
is only just and proper, on the facts and circumstances of
the case. Any person claiming an interest in the property
sold at the time of sale or at the time of making
application or acting for in the interest of such person
can apply to have the sale set aside, on his depositing in
court such amount stated in sub-clause (a) and (b) of
Order 21 rule 89(1). If such application is filed, the court
below will consider the same and dispose of the same in
accordance with law.”
According to learned counsel for the respondent, the above
observation of this court does not have the effect as contended by
the appellant. Apart from the above fact, the entire property had
been directed to be sold and that order was confirmed even by the
Apex court. Further, the entire right with the judgment debtors had
already been lost and nothing remains for them to agitate. It is also
contended that the observation made by this court while disposing of
the Ex.F.A and R.F.A. could not be treated as one extending the
period of limitation as that is not possible. Therefore, it is contended
that there is no merit in the appeal.
F.A.O.207/2009. 17
19. One of the main issues that arises for consideration
is the interpretation to be given to the portion extracted in the
previous paragraph from the judgment in Ex.F.A and R.F.A. The said
judgment was passed on 30.6.2006. It was long thereafter, i.e., on
7.7.2007 that the appellant had filed E.A. 565 of 2007 said to be in
terms of he judgment in Ex.F.A and R.F.A. It appears that initially
the question of limitation was agitated before the execution court and
that was overruled. Records would indicate that the decree holder
had carried the matter before this court in W.P.(C) 25410 of 2008.
This court disposed of the writ petition directing the court below to
consider the issue of limitation, though no notice was issued to the
respondent in the said original petition. One of the contentions is
that the said order is not binding on the appellant as she was not
served with any notice in the said proceedings. It cannot be
contended that this contention is without any basis.
20. Presumably in compliance with the said direction
while considering the other aspects and E.A. 565 of 200, the court
considers the question of limitation also. The court has noticed that
the relevant article applicable is Article 127, which prescribes 60
F.A.O.207/2009. 18
days to take recourse to procedure available under Order 21 Rule 89
from the date of sale. As rightly noticed by the court below going by
the date of sale, the period was over long ago, i.e., as early as in
1993-94. If computed from that date, the petition is filed after 13 and
a half years. But the court below was inclined to take the view that
this court had while disposing of the Ex.F.A. and R.F.A..had directed
the appellant to file an application of the nature, that has been done.
21. The contention taken by the learned counsel for the
respondent that this court could not have extended the time available
for filing an application under Order 21 Rule 89 cannot stand in the
light of the observation made in the judgment in Ex.F.A. and R.F.A.
already made mention of. As to whether that observation has the
effect of only indicting that the amount as calculated going by the
provisions of Order 21 Rule 89 alone needs to be deposited and then
the application to set aside the sale or whether the application has to
be under Order 21 Rule 89 is a different question. At any rate, one
fact is very clear. Even at the time of pronouncing the judgment in
Ex.F.A. and R.F.A., the period, going by the provisions of Limitation
Act for filing application under Order 21 Rule 89, had elapsed long
F.A.O.207/2009. 19
ago. One cannot omit to note that the judgment in Ex.F.A. and
R.F.A. has become final and nobody has challenged the same.
Therefore, the view taken by the lower court that the application filed
by the appellant is maintainable cannot be found fault with.
22. The court below has observed that the contention
taken by the appellant that he is entitled to exclude the time taken
for obtaining the copy of the judgment in Ex.F.A. 33 of 2004 cannot
be accepted. On verifying the endorsement on the copy of the
judgment, the court below was of the opinion that in copy application
No.A 8257, the date of filing was shown as 4.7.2007. But the year
‘2007’ was seen corrected as ‘2006’. The court below took the view
that the petitioners carried out the above correction in order to bring
the application within time and to make it appear that she received
the copy of the order after the pronouncement of the judgment.
23. In the light of the above observation by the court
below, it became necessary for this court to verify the endorsements
on the copy of the judgment produced before the said court. It is
seen that the appellant had filed copy application on 5.7.2006. After
F.A.O.207/2009. 20
receipt of the judgment, that application was notified on 5.7.2007 and
the copy was made ready on 5.7.2007 and it was issued on the same
day. Therefore, the observation by the court below that there has
been correction by the appellant regarding the date of the application
does not appear to be correct. If one has to go by the dates
available on the endorsement on the copy of the judgment produced
before the court below, then obviously the petition now filed before
the lower court is within time. One need not labour much on this
aspect, because, it is the contention of the learned counsel for the
appellant that this court had not directed an application to be filed
under Order 21 Rule 89 CPC.
24. Learned counsel for the appellant stressed that the
act of the court below in treating the application as one under Order
21 Rule 89 is incorrect. The conclusion drawn on the basis of the
endorsement on the copy of the judgment is also not correct.
Learned counsel also highlighted that after all the decree holder only
wanted the advance money paid by him and did not want the
property at all. Learned counsel accepted that several opportunities
were given to the judgment debtors to pay off the debt, but for some
F.A.O.207/2009. 21
reason or other that was not done. Learned counsel then
emphasized that the only result is that if the property is delivered to
the decree holder in pursuance to the sale already held, the appellant
will have to take to streets. In the interests of justice such a
contingency should be avoided and it is not as if the decree holder
cannot be adequately compensated for the injury suffered by him, if
at all any.
25. As already noticed, the principle of law based on the
decisions cited by the learned counsel for the contesting respondent
cannot be doubted. It is true that there have been several
proceedings with respect to the present matter in various forms on
various aspects and it is also true that sufficient time was given to the
judgment debtors to pay off the debt.
26. However, one fact stares on the face. The decree
was only against defendants 2 and 4. The plaintiff had given up his
reliefs as against defendant No.3. It is not in dispute that defendant
No.3 had a share in the property involved in these proceedings.
Since there were no decree against him, his share could not have
F.A.O.207/2009. 22
been brought to sale. In fact in one of the proceedings before this
court, this contention was accepted. We are not forgetting the fact
that there have been proceedings between the parties, and even the
Apex court held that the entire property be delivered. This aspect is
referred only to point out that the contention that the entire property
could not have been brought to sale in view of the share which
defendant No.3 had over the property, is a contention not without
basis.
27. Equally, one has to notice that the decree debt was
only Rs.50,000/- with interest pende lite at 12%. The property had
an extent of 6 cents with a house therein. One of the contentions
taken by the appellant is that the execution court ought to have
ascertained whether it was absolutely necessary to sell the entire
property for discharging the decree debt. That has not been done
and that, according to the learned counsel, is fatal.
28. The above contention is met by the learned counsel
for the contesting respondent by pointing out that the judgment
debtors had notice at all stages of the execution proceedings and
F.A.O.207/2009. 23
they had no contention that it was unnecessary to sell the entire
property for discharging the decree debt and that only a portion
needs to be sold. At any rate, according to learned counsel, that
stage is over long ago and that cannot now be taken aid of to
challenge the sale.
29. There is some difficulty in accepting the argument of
the learned counsel for the contesting respondent. By now it has
been well settled that the court has a duty to ascertain whether the
entire property needs to be sold for discharging the debt. The court
cannot relieve itself of discharging that duty by pointing out that the
judgment debtors did not take such a contention either at the time of
settling the proclamation or thereafter. Probably that may not be a
ground available under Order 21 Rule 90 to challenge the sale. But,
however, by now it is well settled that in such cases Section 47 can
come to the aid of the person concerned.
30. The effect of the failure on the part of the court to
discharge the said duty was considered in the decision reported in
F.A.O.207/2009. 24
Balakrishnan v. Malaiyandi Konar (2006(1) K.L.T. 926). The apex
court observed as follows:
“The provision contains some significant words.
They are “necessary to satisfy the decree”. Use of the
said expression clearly indicates the legislative intent that
no sale can be allowed beyond the decretal amount
mentioned in the sale proclamation. In all execution
proceedings, Court has to first decide whether it is
necessary to bring the entire property to sale or such
portion of the property the proceeds of which would be
sufficient to satisfy the claim of the decree holder. It s
immaterial whether the property is one or several. Even
if the property is one, if a separate portion could be sold
without violating any provision of law only such portion of
the property should be sold. This is not just a discretion
but an obligation imposed on the court. The sale held
without examining this aspect and not in conformity with
this mandatory requirement would be illegal and without
jurisdiction.”
31. The above decision was followed in the decision
reported in George v. Shirley Varkey (2009(2) K.L.T. 30). In the
light of the above decision, learned counsel for the respondent may
F.A.O.207/2009. 25
not be justified in saying that the contentions raised by the appellant
have no legs to stand.
32. The present situation has to be assessed in the light
of the above facts and circumstances. The appellant is the widow of
one of the judgment debtors. It is true that the judgment debtors
were given sufficient opportunities to discharge the decree debt.
What has now happened is that a person, who did not want the
property, but only wanted the advance money returned, has now got
the property for a song. This is mainly due to the conduct of the
judgment debtors themselves. The result is that the widow of one
the judgment debtors is going to be thrown to the streets.
33. It is true that these proceedings have been going on
in court for more than two decades. It is also true that there is no
justification on the part of the appellant in saying that they were not
given sufficient opportunity to pay off the debt. But the fact remains
that there was default on the part of the predecessor in interest of the
appellant. The question then arises as whether any relief can be
granted to the appellant.
F.A.O.207/2009. 26
34. This is not a case where the decree holder cannot be
compensated adequately by fixing a proper quantum of money.
True, he has been in court for a long time and he has already
deposited the sale amount. It is also true that he has obtained the
sale certificate and the proceedings stand posted for delivery. But
the comparitive hardship seems to be in favour of the appellant. If as
a matter of fact the court feels that any injury or loss caused to the
decree holder can be adequately compensated, there is no reason
as to why the appellant should not be granted an opportunity to save
the property and her house. Law may not be in her favour much, but,
the court can attempt to do justice between the parties.
35. Considering the various aspects, it is felt that an
opportunity ought to be granted to the appellant to save the property
by paying a substantial amount to the decree holder. Considering
the advance amount paid, for which the decree has been obtained
and interest thereon, the expenses incurred by him etc and also for
the long delay in prosecuting the proceedings, it is felt that a sum of
F.A.O.207/2009. 27
Rs.5,50,000/- would be adequate compensation to the decree holder
in addition to Rs.50,000/- as costs incurred by him in the litigation.
In the result, this appeal will stand allowed and the sale
shall stand set aside on condition that the appellant deposits
Rs.6,00,000/- before the execution court within two months from the
date of this judgment. If any default is committed by the appellant,
the execution proceedings shall continue.
Thottathil B. Radhakrishnan,
Judge
P. Bhavadasan,
Judge
sb.