{"id":192856,"date":"2010-12-22T00:00:00","date_gmt":"2010-12-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/annie-johny-vs-bahuleyan-on-22-december-2010"},"modified":"2019-03-05T19:39:57","modified_gmt":"2019-03-05T14:09:57","slug":"annie-johny-vs-bahuleyan-on-22-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/annie-johny-vs-bahuleyan-on-22-december-2010","title":{"rendered":"Annie Johny vs Bahuleyan on 22 December, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Annie Johny vs Bahuleyan on 22 December, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nFAO.No. 207 of 2009()\n\n\n1. ANNIE JOHNY,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. BAHULEYAN, S\/O.T.K.NARAYANAN,\n                       ...       Respondent\n\n                For Petitioner  :SRI.K.RAMACHANDRAN\n\n                For Respondent  :SRI.O.RAMACHANDRAN NAMBIAR\n\nThe Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :22\/12\/2010\n\n O R D E R\n      THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ.\n         - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                                F.A.O. No. 207 of 2009\n         - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                 Dated this the 22nd day of December, 2010.\n\n                                          JUDGMENT\n<\/pre>\n
Bhavadasan, J,<\/p>\n
            A litigation, which started in 1987 still lingers on with no<\/p>\n
end in sight in the near future.\n<\/p>\n<\/p>\n
            2. It all started when the respondent herein instituted<\/p>\n
O.S. 348 of 1987 before the Sub court, North Paravur, initially as one<\/p>\n
for specific performance, later confined to one for return of advance<\/p>\n
amount. Initially the suit was against Sri. Peter, the predecessor in<\/p>\n
interest of the appellant and others herein. The original defendant<\/p>\n
died   and his legal heirs were brought on the party array as<\/p>\n
defendants 2 to 4. The plaintiff could not get the summons served<\/p>\n
on the third defendant and ultimately he chose to give up his reliefs<\/p>\n
as against him and confined his prayer as against defendants 2 and<\/p>\n
4. It appears that they remained ex-parte and a decree for a sum of<\/p>\n
Rs.50,000\/- with 12% interest followed. The decree holder then<\/p>\n
filed E.P.213 of 1990 for realisation of a sum of Rs.78,390\/- with<\/p>\n
F.A.O.207\/2009.                    2<\/span><\/p>\n
future interest and costs. It may be noticed that the decree was<\/p>\n
charged on the property involved in these proceedings. In execution<\/p>\n
of the decree, sale      was ordered    on 22.10.1992 and that was<\/p>\n
challenged before this court in C.R.P. 2574 of 1992. That revision<\/p>\n
petition was disposed of by order dated         18.1.1993 adjourning<\/p>\n
further proceedings in execution for a period of four months from the<\/p>\n
date of order, within which period , the second judgment debtor was<\/p>\n
given a right to settle the amount and to have the decree satisfied. It<\/p>\n
is claimed that on 15.1.1993 an amount of Rs.10,000\/- had been<\/p>\n
paid. However, the benefit of the order in the CRP was not availed of<\/p>\n
by the judgment debtors.\n<\/p>\n<\/p>\n
            3.   The sale was held on 1.10.1993 for a sum of<\/p>\n
Rs.89,529\/- and the decree holder purchased the same. That sale<\/p>\n
was challenged by judgment debtors 2 and 4 by filing E.A.843 of<\/p>\n
1993 and that was disposed of by the executing court confirming the<\/p>\n
sale, but granting time to the judgment debtors by way of concession<\/p>\n
to pay the decree amount on or before 24.3.1994. The said order<\/p>\n
was challenged in C.M.A. 152 of 1994 before this court. Taking note<\/p>\n
of the submission made by the judgment debtors that they were<\/p>\n
F.A.O.207\/2009.                    3<\/span><\/p>\n
frantically trying to raise the money for paying the decree debt, by<\/p>\n
judgment dated 14.6.1994 this court allowed the judgment debtors to<\/p>\n
approach the executing court for enlargement of time. The judgment<\/p>\n
debtors filed E.A. 545 of 1994 before the executing court on<\/p>\n
22.11.1994 seeking to have the decree amount discharged by<\/p>\n
instalment payments.       The executing court dismissed the said<\/p>\n
application on 22.11.1994 and the sale was confirmed on the same<\/p>\n
day. On 30.1.1995, the sale certificate was issued. Thereafter, the<\/p>\n
decree holder filed E.P.112 of 1995 for delivery of the property.<\/p>\n
             4.   It appears that the second judgment debtor filed<\/p>\n
E.A.202 of 1996 before the executing court seeking that the property<\/p>\n
in his possession may be demarcated as it was lying contiguously<\/p>\n
with the property owned by the fourth defendant in the suit and the<\/p>\n
fourth defendant had additional share of 1\/3rd share as per a gift<\/p>\n
deed. That application was dismissed by order dated 3.4.1996. The<\/p>\n
said order was challenged in C.R.P. 1073 of 1996 before this court.<\/p>\n
That was disposed of by observing that in the earlier C.R.P. and<\/p>\n
C.M.A. filed by them before this court, the present contentions were<\/p>\n
F.A.O.207\/2009.                    4<\/span><\/p>\n
not taken therein and accordingly C.R.P. 1073 of 1996 was<\/p>\n
dismissed.\n<\/p>\n<\/p>\n
            5. It appears that one Leelamma, the sister of the first<\/p>\n
defendant, late Peter, filed E.A. 451 of 1996 in E.P. 112 of 1995 in<\/p>\n
O.S. 348 of 1987 claiming 1\/10th right over the property contending<\/p>\n
that the decree holder was not entitled to get delivery of possession<\/p>\n
of the property. The said application was dismissed on 11.9.1998.<\/p>\n
            6. It is claimed by the appellant herein that the judgment<\/p>\n
debtors had also contended that the decree holder is entitled to only<\/p>\n
2\/3d share over the property since the decree was confined to<\/p>\n
defendants 2 and 4 and as the third defendant had a share in the<\/p>\n
property since there was no decree against him, his share could not<\/p>\n
be brought to sale. Meanwhile, Leelamma as against the order in<\/p>\n
E.A. 451 of 1996, filed E.F.A. 30 of 1998 before this court and this<\/p>\n
court by judgment dated 10.11.1998 set aside the impugned order<\/p>\n
and remanded the matter to the executing court for               fresh<\/p>\n
consideration.    After remand, the executing       court upheld the<\/p>\n
contentions of Leelamma. Against the said order, the decree holder<\/p>\n
F.A.O.207\/2009.                     5<\/span><\/p>\n
came up in E.F.A.24 of 1999 before this court and the appeal was<\/p>\n
allowed and it was held that Leelamma had no subsisting rights over<\/p>\n
the property and the earlier order was restored and the delivery<\/p>\n
application was restored to file. It was thereafter that E.A. 548 of<\/p>\n
2000 was filed seeking delivery and that was allowed. Against the<\/p>\n
said order, judgment debtors 2 and 4 filed C.R.P. 2622 of 2000<\/p>\n
before this court. Therein, they arrayed third defendant in the suit as<\/p>\n
second respondent and this court by order dated 29.11.2000 found<\/p>\n
that the property charged and purchased by the decree holder can<\/p>\n
be delivered to the decree holder. The decree holder filed R.P. 573<\/p>\n
of 2000 before this court. In the review petition, this court held that<\/p>\n
defendants 2 and 4 cannot resist the claim for delivery and the order<\/p>\n
for delivery of the entire property was passed by the executing court<\/p>\n
on the basis of the rights said to belong to the third defendant and<\/p>\n
the order of the executing court was confirmed by order dated<\/p>\n
18.1.2001. Even though S.L.P. 3959 of 2001 was filed before the<\/p>\n
Supreme Court, that was dismissed by order dated 29.11.2001.<\/p>\n
            7. It is claimed by the appellant herein that this court had<\/p>\n
occasion to consider whether the 1\/3rd right over the suit property<\/p>\n
F.A.O.207\/2009.                    6<\/span><\/p>\n
was not available for sale by order dated 13.1.2004 in Ex.F.A.29 of<\/p>\n
2002 by this court. In the meanwhile, one Varghese, S\/o. Joseph<\/p>\n
claiming to be a legatee under the Will executed by the third<\/p>\n
defendant contended that the sale could not be proceeded with, as<\/p>\n
the property has devolved on him. He also filed O.S. 378 of 2001 for<\/p>\n
partition and separate possession of 1\/3rd share over the suit<\/p>\n
property. The said Varghese filed O.P.19597 of 2002 to direct the<\/p>\n
Additional Sub Court, North Paravur to pass orders on I.A. 4218 of<\/p>\n
2001 in O.S.348 of 1987 and the obstruction petition in O.S.348 of<\/p>\n
1987 before the Additional Sub Court, North Paravur. That Original<\/p>\n
Petition was disposed of by order dated 23.7.2002 directing the<\/p>\n
executing court to consider the contentions raised by       him. The<\/p>\n
executing court dismissed E.A. 851 of 2001 in E.P.112 of 1995 on<\/p>\n
12.8.2002 stating that there is no need to decide the question afersh<\/p>\n
since the High Court had taken a view in the R.P. with regard to the<\/p>\n
matter.    Even though that was challenged before this court by<\/p>\n
Varghese, the appeal was dismissed by order dated 13.1.2004<\/p>\n
observing that if Varghese had filed any application under Order 21<\/p>\n
Rule 97, the said application may be disposed of in accordance with<\/p>\n
law by the executing court.\n<\/p>\n
F.A.O.207\/2009.                      7<\/span><\/p>\n
            8. Varghese then filed E.A. 570 of 2002 claiming right<\/p>\n
over the property and resisting delivery. E.A. 570 of 2002, E.P. 112<\/p>\n
of 1995 and O.S. 348 of 1987 before the Sub Court, North Paravur<\/p>\n
were tried jointly and the court below dismissed the suit and the<\/p>\n
execution application by a common judgment dated 14.7.2004. The<\/p>\n
order in the execution application and the judgment and decree of<\/p>\n
the Sub Court, North Paravur were challenged before this court as<\/p>\n
per Ex.F.A. 33 of 2004 and R.F.A.614 of 2005. A common judgment<\/p>\n
was rendered on 30.6.2006, by which this court allowed the present<\/p>\n
appellant to file a fresh application by depositing in the execution<\/p>\n
court the amount as contemplated under Order XXI Rule 89 C.P.C.<\/p>\n
In compliance with the said order, it is claimed by the appellant that<\/p>\n
she had deposited the amount and filed E.A.565 of 2007 for<\/p>\n
necessary reliefs.     That E.A. was opposed by the decree holder<\/p>\n
stating that it is barred by limitation. On 3.7.2008 E.A. 565 of 2007<\/p>\n
was dismissed by the Sub Court stating that the application is barred<\/p>\n
by limitation.\n<\/p>\n
F.A.O.207\/2009.                     8<\/span><\/p>\n
            9.   According to the appellant, after finding that the<\/p>\n
requisite amount had been deposited by the appellant, the court<\/p>\n
below had erred in dismissing the application on the ground of<\/p>\n
limitation. It is interesting to note that in the meanwhile the initial<\/p>\n
finding of the execution court that the present appellant had actually<\/p>\n
deposited the correct amount was sought to be reviewed by filing<\/p>\n
E.A. 855 of 2008, the executing court dismissed the same by order<\/p>\n
dated 22.7.2008. The appellant has come to know that the said<\/p>\n
order was challenged before this court in W.P.(C)25410 of 2008.<\/p>\n
That was disposed of by order dated 22.8.2008. But the appellant<\/p>\n
claims that she had no notice of the same. Thereafter the present<\/p>\n
order dated 7.8.2009 was passed.\n<\/p>\n<\/p>\n
            10.     Learned counsel appearing for the appellant<\/p>\n
contended that even going by the decree only 2\/3rd share over the<\/p>\n
property, which consists of 6 cents and a house, could have been<\/p>\n
brought to sale. According to learned counsel, decree holder had<\/p>\n
given up his rights as against the third defendant and therefore his<\/p>\n
share in the property could not be touched. It was contended that<\/p>\n
this contention on behalf of the appellant was infact upheld at one<\/p>\n
F.A.O.207\/2009.                    9<\/span><\/p>\n
stage of the proceedings.       Even otherwise, according to learned<\/p>\n
counsel, it is trite that the charge granted as per the decree could<\/p>\n
have force only as against the 2\/3rd share owned by defendants 2<\/p>\n
and 4. Viewed from any angle, the proper course ought to have<\/p>\n
been to get the share of defendants 2 and 4 sold and thereafter seek<\/p>\n
partition of the property. At any rate, according to counsel, it is not<\/p>\n
legal for the decree holder to seek delivery of the entire property. It<\/p>\n
was also contended that the decree amount was only Rs.50,000\/-<\/p>\n
with interest and as on the date of the filing of the execution petition,<\/p>\n
the amount due was Rs.78,390\/- with future interests and costs. It<\/p>\n
was quite unnecessary to sell the entire property in order to satisfy<\/p>\n
the decree. The execution court has not applied its mind and it is<\/p>\n
also contended that the procedure under Order 21 Rule 64 has not<\/p>\n
been followed and that, infact vitiates the           sale and entire<\/p>\n
proceedings thereafter. Learned counsel also contended that the<\/p>\n
court below has erred in law in understanding the true purport of the<\/p>\n
judgment in Ex.F.A.33 of 2004 rendered by this court. In paragraph<\/p>\n
14 of the said judgment what is stated is that the appellant before<\/p>\n
this court is permitted to deposit the entire amount contemplated<\/p>\n
under Order 21 Rule 89 and thereafter to file the petition seeking<\/p>\n
F.A.O.207\/2009.                     10<\/span><\/p>\n
necessary reliefs. The court below, according to learned counsel,<\/p>\n
has construed it as a permission granted by this court to file a<\/p>\n
petition under Order 21 Rule 89. It is not so. Apart from all these<\/p>\n
facts, according to learned counsel, this is a case where a widow and<\/p>\n
a maiden are left with no remedy, but to approach the court to save<\/p>\n
a shelter for them. Learned counsel contended that if delivery is<\/p>\n
effected, the appellant will be thrown to streets.<\/p>\n
            11. Learned counsel also pointed out that it is not as if<\/p>\n
even after the sale has been confirmed, it could not be set aside. In<\/p>\n
support of his contention, learned counsel relied on the decision<\/p>\n
reported in Kharati Lal v. Raminder Kaur<\/a> ((2000) 3 SCC 664).<\/p>\n
Learned counsel also relied on the decision reported in Gnan Das v.<\/p>\n
Paulin Moraes (1998(2) KLT 88) to contend for the position that it is<\/p>\n
the duty of the court under Order 21 Rule 64 to ascertain whether the<\/p>\n
entire property needs to be sold. Having not done so, the sale is<\/p>\n
vitiated. As far as the order in W.P.(C) 25410 of 2008 is concerned,<\/p>\n
on which heavy reliance is placed by the decree holder, learned<\/p>\n
counsel relied on the decision reported in Thambi v. Mathew<\/a> (1987<\/p>\n
F.A.O.207\/2009.                    11<\/span><\/p>\n
(2) KLT 848) and pointed out that since there was no notice of the<\/p>\n
proceedings to the appellant, she is not bound by the same.<\/p>\n
            12.     Learned counsel appearing for the contesting<\/p>\n
respondent before this court on the other hand contended that the<\/p>\n
contentions taken by the appellant before this court are devoid of<\/p>\n
merits. The interpretation now sought to be given to paragraph 14 of<\/p>\n
the judgment in Ex.F.A.33 of 2004, according to learned counsel, is<\/p>\n
mischievous. According to learned counsel, even though the time for<\/p>\n
filing the petition under Order 21 Rule 89 could not be extended by<\/p>\n
the appellant, even assuming that this court had done so, the<\/p>\n
application in pursuance to the said order was filed one year<\/p>\n
thereafter and on that ground also the appellant is not entitled to any<\/p>\n
relief. Counsel pointed out that it is trite that having taken recourse<\/p>\n
to Order 21 Rule 89 initially and failed in that attempt and then could<\/p>\n
not take recourse under Order 21 Rule 90. After having done that<\/p>\n
also, the appellant cannot now revert back to Order 21 Rule 89.<\/p>\n
The judgment debtors as well as the predecessors in interest have<\/p>\n
taken all possible steps to forestall the execution proceedings and<\/p>\n
they had failed in their attempts.     In the proceedings before this<\/p>\n
F.A.O.207\/2009.                     12<\/span><\/p>\n
court and before the apex court, it was ordered that the entire<\/p>\n
property be delivered. Therefore, the contention now raised that 1\/3rd<\/p>\n
share of the property cannot be delivered has no merits.<\/p>\n
            13. In support of his contention that Order 21 Rule 89<\/p>\n
cannot now be urged, learned counsel relied on the decision reported<\/p>\n
in Ittiathi Gopalan v. Nani Amma Ammukutty Amma (AIR<\/a> 1957<\/p>\n
Trav.-Co. 107), Joginder Kaur v. Financial Commissioner, Punjab<\/p>\n
(AIR 1975 Punjab and Haryana 15), Prakash Kaur v. Sandhooran<\/p>\n
(AIR 1979 Punjab and Haryana 36),                 Pathummakutty v.<\/p>\n
Thekkechalil Kathiyumma (AIR<\/a> 1990 Kerala 286) and Mangal<\/p>\n
Prasad v. Krishna Kumar (AIR 1977 Allahabad 147).<\/p>\n
            14. Learned counsel also contended that the time fixed<\/p>\n
by the statute for filing an application under Order 21 Rule 89 is sixty<\/p>\n
days. It is well settled that Section 5 of the Limitation Act had no<\/p>\n
application to the execution proceedings and therefore there is no<\/p>\n
question of extending the time. If the application was not filed within<\/p>\n
the time stipulated, that was the end of the matter. In support of his<\/p>\n
contention, he relied on the decisions reported in Thangammal v. K.<\/p>\n
F.A.O.207\/2009.                  13<\/span><\/p>\n
Dhanalakshmy (AIR 1981 Madras 254), Kathyee Cotton Mills Ltd.<\/p>\n
Alwaye v. Padmanabha Pillai<\/a> (1957 KLJ 1167), Mohan Lal v. Hari<\/p>\n
Prasad Yadav<\/a> ((1994) 4 SCC 177),               Pathummakutty v.<\/p>\n
Thekkechalil Kathiyumma (AIR<\/a> 1990 Kerala 286), Francis v. John<\/p>\n
Britto<\/a> (2004(3) K.L.T. 1113), Challamane Hunchha Gowda v. M.R.<\/p>\n
Tirumala<\/a> ((2004) 1 SCC 453) and Munni Lal v. Smt. Sona (AIR<\/p>\n
1982 Allahabad 29).\n<\/p>\n<\/p>\n
            15.    According to learned counsel appearing for the<\/p>\n
contesting respondent, apart from the fact that the order to deliver<\/p>\n
the entire property had been confirmed by the apex court, the actual<\/p>\n
right of the third defendant was lost by sale and nothing remained<\/p>\n
thereafter. After the sale had been confirmed, the challenge by the<\/p>\n
judgment debtor cannot be countenanced.         In support of his<\/p>\n
contention, learned counsel relied on the decision reported in<\/p>\n
Pathummakutty’s case (supra), Chowdhari Abdul Subhan Sahib<\/p>\n
v. Kante Ramanna (AIR 1945 Madras 161), Mohammad Umar v.<\/p>\n
Prem Singh (AIR 1947 Lahore 100), Sagar Mahila Vidyalaya,<\/p>\n
Sagar v. Pandit Sadashiv Rao Harshe<\/a> ((1991) (3) SCC 588),<\/p>\n
F.A.O.207\/2009.                    14<\/span><\/p>\n
Pattam Khader Khan v. Pattam Sardar Khan<\/a> ((1996) 5 SCC 48)<\/p>\n
and Janak Raj v. Gurdial Singh (AIR<\/a> 1967 SC 608).\n<\/p>\n<\/p>\n
             16.   Learned counsel emphasized         that even though<\/p>\n
several opportunities were given by the courts in various proceedings<\/p>\n
to the judgment debtors to wipe off the decree debt by paying the<\/p>\n
amount, they did not avail any of those opportunities, instead, they<\/p>\n
have been resorting to dilatory tactics to keep the decree holder at<\/p>\n
bay. The decree was obtained, according to learned counsel, as<\/p>\n
early as on 11.12.1989 and the decree holder is still to reap the<\/p>\n
fruits of the decree. May be it is harsh on the appellant. But, that is<\/p>\n
not a justification to hold in favour of the appellant.   The sale had<\/p>\n
been confirmed and delivery had been ordered. There is no merit,<\/p>\n
according to learned counsel, in any of the contentions taken by the<\/p>\n
appellant and the appeal is only to be dismissed.<\/p>\n
             17. As far as the legal principles relied on by the counsel<\/p>\n
on both sides, there can be no quarrel. One cannot doubt those<\/p>\n
propositions.\n<\/p>\n
F.A.O.207\/2009.                  15<\/span><\/p>\n
            18. The appellant places considerable reliance on the<\/p>\n
judgment rendered by this court in Ex.F.A. 33 of 2004 and R.F.A. 614<\/p>\n
of 2005. Those proceedings were disposed of               by a common<\/p>\n
judgment dated 30.6.2006. It appears that in the said proceedings<\/p>\n
additional 4th and 5th respondents had filed I.A. 849 of 2006 praying<\/p>\n
that they may be allowed to discharge the entire debt so that the<\/p>\n
property can be saved. This court had noticed that the said petition<\/p>\n
was filed under Section 151 CPC. The prayer in the said petition<\/p>\n
was to allow the second petitioner, who is the second defendant, who<\/p>\n
is impleaded as additional fourth respondent, to discharge the<\/p>\n
decree debt in O.S. 348 of 1987 by paying in cash the entire decree<\/p>\n
amount after deducting the sum of Rs.10,000\/-, which has already<\/p>\n
been paid. It is also observed that the petition is filed under Order 21<\/p>\n
Rule 80. While disposing of the proceedings, it was observed as<\/p>\n
follows:\n<\/p>\n
            “In the above circumstances, learned counsel for<\/p>\n
      the petitioner in I.A.849 of 2006 requested that the<\/p>\n
      petitioner may be allowed to withdraw the petition, giving<\/p>\n
      him an opportunity to move an appropriate application<\/p>\n
      before the lower court under Order 21 Rule 89 of the<\/p>\n
      CPC.\n<\/p><\/blockquote>\n
F.A.O.207\/2009.                     16<\/span><\/p>\n<\/blockquote>\n
            On hearing both sixes, I find that the request made<\/p>\n
      is only just and proper, on the facts and circumstances of<\/p>\n
      the case. Any person claiming an interest in the property<\/p>\n
      sold at the time of sale or at the time of making<\/p>\n
      application or acting for in the interest of such person<\/p>\n
      can apply to have the sale set aside, on his depositing in<\/p>\n
      court such amount stated in sub-clause (a) and (b) of<\/p>\n
      Order 21 rule 89(1). If such application is filed, the court<\/p>\n
      below will consider the same and dispose of the same in<\/p>\n
      accordance with law.”\n<\/p><\/blockquote>\n
According to learned counsel for the respondent, the above<\/p>\n
observation of this court does not have the effect as contended by<\/p>\n
the appellant. Apart from the above fact, the entire property had<\/p>\n
been directed to be sold and that order was confirmed even by the<\/p>\n
Apex court. Further, the entire right with the judgment debtors had<\/p>\n
already been lost and nothing remains for them to agitate. It is also<\/p>\n
contended that the observation made by this court while disposing of<\/p>\n
the Ex.F.A and R.F.A. could not be treated as one extending the<\/p>\n
period of limitation as that is not possible. Therefore, it is contended<\/p>\n
that there is no merit in the appeal.\n<\/p>\n
F.A.O.207\/2009.                    17<\/span><\/p>\n
            19. One of the main issues that arises for consideration<\/p>\n
is the interpretation to be given to the portion extracted in the<\/p>\n
previous paragraph from the judgment in Ex.F.A and R.F.A. The said<\/p>\n
judgment was passed on 30.6.2006. It was long thereafter, i.e., on<\/p>\n
7.7.2007 that the appellant had filed E.A. 565 of 2007 said to be in<\/p>\n
terms of he judgment in Ex.F.A and R.F.A. It appears that initially<\/p>\n
the question of limitation was agitated before the execution court and<\/p>\n
that was overruled. Records would indicate that the decree holder<\/p>\n
had carried the matter before this court in W.P.(C) 25410 of 2008.<\/p>\n
This court disposed of the writ petition directing the court below to<\/p>\n
consider the issue of limitation, though no notice was issued to the<\/p>\n
respondent in the said original petition. One of the contentions is<\/p>\n
that the said order is not binding on the appellant as she was not<\/p>\n
served with any notice in the said proceedings.         It cannot be<\/p>\n
contended that this contention is without any basis.<\/p>\n
            20.   Presumably in compliance with the said direction<\/p>\n
while considering the other aspects and E.A. 565 of 200, the court<\/p>\n
considers the question of limitation also. The court has noticed that<\/p>\n
the relevant article applicable is Article 127, which prescribes 60<\/p>\n
F.A.O.207\/2009.                     18<\/span><\/p>\n
days to take recourse to procedure available under Order 21 Rule 89<\/p>\n
from the date of sale. As rightly noticed by the court below going by<\/p>\n
the date of sale, the period was over long ago, i.e., as early as in<\/p>\n
1993-94. If computed from that date, the petition is filed after 13 and<\/p>\n
a half years. But the court below was inclined to take the view that<\/p>\n
this court had while disposing of the Ex.F.A. and R.F.A..had directed<\/p>\n
the appellant to file an application of the nature, that has been done.<\/p>\n
             21. The contention taken by the learned counsel for the<\/p>\n
respondent that this court could not have extended the time available<\/p>\n
for filing an application under Order 21 Rule 89 cannot stand in the<\/p>\n
light of the observation made in the judgment in Ex.F.A. and R.F.A.<\/p>\n
already made mention of. As to whether that observation has the<\/p>\n
effect of only indicting that the amount as calculated going by the<\/p>\n
provisions of Order 21 Rule 89 alone needs to be deposited and then<\/p>\n
the application to set aside the sale or whether the application has to<\/p>\n
be under Order 21 Rule 89 is a different question. At any rate, one<\/p>\n
fact is very clear. Even at the time of pronouncing the judgment in<\/p>\n
Ex.F.A. and R.F.A., the period, going by the provisions of Limitation<\/p>\n
Act for filing application under Order 21 Rule 89, had elapsed long<\/p>\n
F.A.O.207\/2009.                    19<\/span><\/p>\n
ago.   One cannot omit to note that the judgment in Ex.F.A. and<\/p>\n
R.F.A. has become final and nobody has challenged the same.<\/p>\n
Therefore, the view taken by the lower court that the application filed<\/p>\n
by the appellant is maintainable cannot be found fault with.<\/p>\n
            22. The court below has observed that the contention<\/p>\n
taken by the appellant that he is entitled to exclude the time taken<\/p>\n
for obtaining the copy of the judgment in Ex.F.A. 33 of 2004 cannot<\/p>\n
be accepted.     On verifying the endorsement on the copy of the<\/p>\n
judgment, the court below was of the opinion that in copy application<\/p>\n
No.A 8257, the date of filing was shown as 4.7.2007. But the year<\/p>\n
‘2007’ was seen corrected as ‘2006’. The court below took the view<\/p>\n
that the petitioners carried out the above correction in order to bring<\/p>\n
the application within time and to make it appear that she received<\/p>\n
the copy of the order after the pronouncement of the judgment.<\/p>\n
            23. In the light of the above observation by the court<\/p>\n
below, it became necessary for this court to verify the endorsements<\/p>\n
on the copy of the judgment produced before the said court. It is<\/p>\n
seen that the appellant had filed copy application on 5.7.2006. After<\/p>\n
F.A.O.207\/2009.                    20<\/span><\/p>\n
receipt of the judgment, that application was notified on 5.7.2007 and<\/p>\n
the copy was made ready on 5.7.2007 and it was issued on the same<\/p>\n
day. Therefore, the observation by the court below that there has<\/p>\n
been correction by the appellant regarding the date of the application<\/p>\n
does not appear to be correct.       If one has to go by the dates<\/p>\n
available on the endorsement on the copy of the judgment produced<\/p>\n
before the court below, then obviously the petition now filed before<\/p>\n
the lower court is within time. One need not labour much on this<\/p>\n
aspect, because, it is the contention of the learned counsel for the<\/p>\n
appellant that this court had not directed an application to be filed<\/p>\n
under Order 21 Rule 89 CPC.\n<\/p>\n<\/p>\n
            24. Learned counsel for the appellant stressed that the<\/p>\n
act of the court below in treating the application as one under Order<\/p>\n
21 Rule 89 is incorrect.   The conclusion drawn on the basis of the<\/p>\n
endorsement on the copy of the judgment is also not correct.<\/p>\n
Learned counsel also highlighted that after all the decree holder only<\/p>\n
wanted the advance money paid by him and did not want the<\/p>\n
property at all. Learned counsel accepted that several opportunities<\/p>\n
were given to the judgment debtors to pay off the debt, but for some<\/p>\n
F.A.O.207\/2009.                    21<\/span><\/p>\n
reason or other that was not done.              Learned counsel then<\/p>\n
emphasized that the only result is that if the property is delivered to<\/p>\n
the decree holder in pursuance to the sale already held, the appellant<\/p>\n
will have to take to streets.     In the interests of justice such a<\/p>\n
contingency should be avoided and it is not as if the decree holder<\/p>\n
cannot be adequately compensated for the injury suffered by him, if<\/p>\n
at all any.\n<\/p>\n<\/p>\n
            25. As already noticed, the principle of law based on the<\/p>\n
decisions cited by the learned counsel for the contesting respondent<\/p>\n
cannot be doubted.       It is true that there have been several<\/p>\n
proceedings with respect to the present matter in various forms on<\/p>\n
various aspects and it is also true that sufficient time was given to the<\/p>\n
judgment debtors to pay off the debt.\n<\/p>\n<\/p>\n
            26. However, one fact stares on the face. The decree<\/p>\n
was only against defendants 2 and 4. The plaintiff had given up his<\/p>\n
reliefs as against defendant No.3. It is not in dispute that defendant<\/p>\n
No.3 had a share in the property involved in these proceedings.<\/p>\n
Since there were no decree against him, his share could not have<\/p>\n
F.A.O.207\/2009.                   22<\/span><\/p>\n
been brought to sale. In fact in one of the proceedings before this<\/p>\n
court, this contention was accepted. We are not forgetting the fact<\/p>\n
that there have been proceedings between the parties, and even the<\/p>\n
Apex court held that the entire property be delivered. This aspect is<\/p>\n
referred only to point out that the contention that the entire property<\/p>\n
could not have been brought to sale in view of the share which<\/p>\n
defendant No.3 had over the property, is a contention not without<\/p>\n
basis.\n<\/p>\n<\/p>\n
            27. Equally, one has to notice that the decree debt was<\/p>\n
only Rs.50,000\/- with interest pende lite at 12%. The property had<\/p>\n
an extent of 6 cents with a house therein. One of the contentions<\/p>\n
taken by the appellant is that the execution court ought to have<\/p>\n
ascertained whether it was absolutely necessary to sell the entire<\/p>\n
property for discharging the decree debt. That has not been done<\/p>\n
and that, according to the learned counsel, is fatal.<\/p>\n
            28. The above contention is met by the learned counsel<\/p>\n
for the contesting respondent by pointing out that the judgment<\/p>\n
debtors had notice at all stages of the execution proceedings and<\/p>\n
F.A.O.207\/2009.                   23<\/span><\/p>\n
they had no contention that it was unnecessary to sell the entire<\/p>\n
property for discharging the decree debt and that only a portion<\/p>\n
needs to be sold. At any rate, according to learned counsel, that<\/p>\n
stage is over long ago and that cannot now be taken aid of to<\/p>\n
challenge the sale.\n<\/p>\n<\/p>\n
            29. There is some difficulty in accepting the argument of<\/p>\n
the learned counsel for the contesting respondent. By now it has<\/p>\n
been well settled that the court has a duty to ascertain whether the<\/p>\n
entire property needs to be sold for discharging the debt. The court<\/p>\n
cannot relieve itself of discharging that duty by pointing out that the<\/p>\n
judgment debtors did not take such a contention either at the time of<\/p>\n
settling the proclamation or thereafter. Probably that may not be a<\/p>\n
ground available under Order 21 Rule 90 to challenge the sale. But,<\/p>\n
however, by now it is well settled that in such cases Section 47 can<\/p>\n
come to the aid of the person concerned.\n<\/p>\n<\/p>\n
            30. The effect of the failure on the part of the court to<\/p>\n
discharge the said duty was considered in the decision reported in<\/p>\n
F.A.O.207\/2009.                     24<\/span><\/p>\n
Balakrishnan v. Malaiyandi Konar<\/a> (2006(1) K.L.T. 926). The apex<\/p>\n
court observed as follows:\n<\/p>\n
            “The provision contains some significant words.<\/p>\n
      They are “necessary to satisfy the decree”. Use of the<\/p>\n
      said expression clearly indicates the legislative intent that<\/p>\n
      no sale can be allowed beyond the decretal amount<\/p>\n
      mentioned in the sale proclamation.        In all execution<\/p>\n
      proceedings, Court has to first decide whether it is<\/p>\n
      necessary to bring the entire property to sale or such<\/p>\n
      portion of the property the proceeds of which would be<\/p>\n
      sufficient to satisfy the claim of the decree holder. It s<\/p>\n
      immaterial whether the property is one or several. Even<\/p>\n
      if the property is one, if a separate portion could be sold<\/p>\n
      without violating any provision of law only such portion of<\/p>\n
      the property should be sold. This is not just a discretion<\/p>\n
      but an obligation imposed on the court. The sale held<\/p>\n
      without examining this aspect and not in conformity with<\/p>\n
      this mandatory requirement would be illegal and without<\/p>\n
      jurisdiction.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
            31.    The above decision was followed in the decision<\/p>\n
reported in George v. Shirley Varkey<\/a> (2009(2) K.L.T. 30). In the<\/p>\n
light of the above decision, learned counsel for the respondent may<\/p>\n
F.A.O.207\/2009.                     25<\/span><\/p>\n
not be justified in saying that the contentions raised by the appellant<\/p>\n
have no legs to stand.<\/p><\/blockquote>\n
             32. The present situation has to be assessed in the light<\/p>\n
of the above facts and circumstances. The appellant is the widow of<\/p>\n
one of the judgment debtors. It is true that the judgment debtors<\/p>\n
were given sufficient opportunities to discharge the decree debt.<\/p>\n
What has now happened is that a person, who did not want the<\/p>\n
property, but only wanted the advance money returned, has now got<\/p>\n
the property for a song. This is mainly due to the conduct of the<\/p>\n
judgment debtors themselves. The result is that the widow of one<\/p>\n
the judgment debtors is going to be thrown to the streets.<\/p>\n
             33. It is true that these proceedings have been going on<\/p>\n
in court for more than two decades. It is also true that there is no<\/p>\n
justification on the part of the appellant in saying that they were not<\/p>\n
given sufficient opportunity to pay off the debt. But the fact remains<\/p>\n
that there was default on the part of the predecessor in interest of the<\/p>\n
appellant. The question then arises as whether any relief can be<\/p>\n
granted to the appellant.\n<\/p>\n
F.A.O.207\/2009.                   26<\/span><\/p>\n
            34. This is not a case where the decree holder cannot be<\/p>\n
compensated adequately by fixing a proper quantum of money.<\/p>\n
True, he has been in court for a long time and he has already<\/p>\n
deposited the sale amount. It is also true that he has obtained the<\/p>\n
sale certificate and the proceedings stand posted for delivery. But<\/p>\n
the comparitive hardship seems to be in favour of the appellant. If as<\/p>\n
a matter of fact the court feels that any injury or loss caused to the<\/p>\n
decree holder can be adequately compensated, there is no reason<\/p>\n
as to why the appellant should not be granted an opportunity to save<\/p>\n
the property and her house. Law may not be in her favour much, but,<\/p>\n
the court can attempt to do justice between the parties.<\/p>\n
            35. Considering the various aspects, it is felt that an<\/p>\n
opportunity ought to be granted to the appellant to save the property<\/p>\n
by paying a substantial amount to the decree holder. Considering<\/p>\n
the advance amount paid, for which the decree has been obtained<\/p>\n
and interest thereon, the expenses incurred by him etc and also for<\/p>\n
the long delay in prosecuting the proceedings, it is felt that a sum of<\/p>\n
F.A.O.207\/2009.                    27<\/span><\/p>\n
Rs.5,50,000\/- would be adequate compensation to the decree holder<\/p>\n
in addition to Rs.50,000\/- as costs incurred by him in the litigation.<\/p>\n
            In the result, this appeal will stand allowed and the sale<\/p>\n
shall stand set aside on condition that the appellant deposits<\/p>\n
Rs.6,00,000\/- before the execution court within two months from the<\/p>\n
date of this judgment. If any default is committed by the appellant,<\/p>\n
the execution proceedings shall continue.\n<\/p>\n<\/p>\n
                                Thottathil B. Radhakrishnan,
\n                                             Judge<\/p>\n
                                       P. Bhavadasan,
\n                                              Judge<\/p>\n
sb.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Annie Johny vs Bahuleyan on 22 December, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-192856","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAnnie Johny vs Bahuleyan on 22 December, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/annie-johny-vs-bahuleyan-on-22-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Annie Johny vs Bahuleyan on 22 December, 2010 - 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