IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 671 of 2009()
1. PARVATHY ANTHARJANAM,W/O.KRISHNAN
... Petitioner
Vs
1. CHITTARIKKAL ENTERPRISES KURIES & LOANS,
... Respondent
2. P.R.NARAYANAN ELAYATH,S/O.RAMAN,
For Petitioner :SRI.SAJU.S.A
For Respondent :SRI.M.P.KRISNNAN NAIR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :27/05/2010
O R D E R
THOMAS P.JOSEPH, J.
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C.R.P. No.671 of 2009
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Dated this the 27th day of May, 2010
O R D E R
Revision petition arises from the order dated 07.11.2009 on
E.A.No.1149 of 2007 in E.P. No.140 of 2000 in O.S. No.207 of
1997 of the court of learned Principal Sub Judge, Irinjalakuda. That
was an application, according to the learned Senior Advocate
appearing for petitioner filed under Section 47 of the Code of Civil
Procedure (for short, “the Code”) challenging sale of property in
execution of the decree in O.S. No.207 of 1997. Application was
filed after the sale was confirmed. Before that there were some
other proceedings at the instance of petitioner challenging the
sale which did not fructify. Later came E.A. No.1149 of 2007
under Sec.47 of the Code. Application was opposed by the
contesting respondent on several grounds including that the
application is barred by limitation and that in view of the decision
in E.A.No.1304 of 2004 the present application is barred by res
judicata. Executing court held that the application is not signed
by the party but only by the counsel, application being in the
nature of a claim petition under Order XX1 Rule 58 of the Code
has all the characteristics of a suit which ought to have been
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verified and singed by the petitioner. Executing court also held
that the application is barred by limitation. Holding so, the
application was dismissed. Learned Senior Advocate appearing
for petitioner contends that findings entered by the executing
court are erroneous. According to the learned Senior Advocate
executing court was under a mis-impression that E.A.No.1149 of
2007 is a claim petition preferred under Order XX1 Rule 58 of the
Code. It is an application challenging the sale in execution filed
under Sec.47 of the Code for which the period of limitation is
three years as provided under Article 137 of the Limitation Act. It
is also contended by the learned Senior Advocate that since I.A.
No.1149 of 2007 is not a claim petition it was not required to be
verified as if in the case of a plaint as the executing court held. At
any rate non-signing of the application by the party concerned is
only a procedural defect which could have been allowed to be
corrected even during the course of proceedings. Learned
counsel for respondent No.1 would contend that even if all the
contentions raised by the learned Senior Advocate are accepted,
the application is barred by res judicata since challenge to the
sale in execution was raised in I.A. No.1304 of 2004 on the very
same grounds urged in the present application but that
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application failed.
2. So far as the plea of res judicata is concerned it is
seen that executing court has not considered that question and
hence it is not necessary for me to answer that question in this
revision.
3. So far as maintainability of the application on the
ground of limitation is concerned it is seen from E.A. No.1149 of
2007 that it is not a claim petition filed under Order XX1 Rule 58
of the Code or an application to set aside the sale under Order
XX1 Rule 90 of the Code. Finding of the executing court that the
application is barred by limitation cannot be sustained. For an
application under Sec.47 of the Code the period of limitation is
three years as per Article 137 of the Limitation Act. Concededly
E.A.No.1149 of 2007 is preferred within three years of
confirmation of the sale and hence the application is within time.
4. So far as non-verification and non-signing of the
application by the petitioner is concerned as I stated above the
petition being filed Sec.47 of the Code it was not required to be
verified as if in the case of a plaint. Executing court has
proceeded on the assumption that application is one filed under
Order XXI Rule 58 of the Code and is to be equated to a plaint.
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Therefore the question of verification as if in the case of a plaint
did not arise.
5. So far as non-signing of the application by the
petitioner herself is concerned, this Court in Joseph v. Suhara
Beevi (1999 [3] KLT 102) has held that it is only a defect not
affecting the merits of the case or jurisdiction of court and that
even at the appellate stage the defect could be cured by
permitting the party concerned to sign the application. There is
no reason why this principle should not be adopted on the facts
and circumstances of this case. In case the application was not
signed by the petitioner she should have been given an
opportunity to sign the same. On the facts and circumstances of
the case I am inclined to give petitioner an opportunity to cure
the defect of non-signing the application by herself.
Civil Revision Petition is allowed in the following lines:
(i) Order in E.A. No.1149 of 2007 in E.P.
No.140 of 2000 in O.S. No.207 of 1997 is set aside.
(ii) E.A. No.1149 of 2007 is remitted to the
Principal Sub Court, Irinjalakuda for fresh disposal
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after giving petitioner an opportunity to sign the
application and cure the defect.
(iii) Issues regarding res judicata and other
contentions raised by the contesting respondent shall
be decided by the executing court.
(iv) Executing court shall expedite disposal
of I.A. No.1149 of 2007.
THOMAS P. JOSEPH, JUDGE.
vsv