{"id":216797,"date":"2008-02-29T00:00:00","date_gmt":"2008-02-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thankamma-vs-leelamma-abraham-on-29-february-2008"},"modified":"2015-09-23T22:38:00","modified_gmt":"2015-09-23T17:08:00","slug":"thankamma-vs-leelamma-abraham-on-29-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thankamma-vs-leelamma-abraham-on-29-february-2008","title":{"rendered":"Thankamma vs Leelamma Abraham on 29 February, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Thankamma vs Leelamma Abraham on 29 February, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRP No. 308 of 2007()\n\n\n1. THANKAMMA, D\/O.EDATHALA VEETTIL\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. LEELAMMA ABRAHAM,\n                       ...       Respondent\n\n                For Petitioner  :SRI.T.C.MOHANDAS\n\n                For Respondent  :SRI.BECHU KURIAN THOMAS\n\nThe Hon'ble MR. Justice HARUN-UL-RASHID\n\n Dated :29\/02\/2008\n\n O R D E R\n                          HARUN-UL-RASHID, J.\n                      -------------------------------------------\n                            C.R.P.NO. 308 OF 2007\n                      -------------------------------------------\n\n                  Dated this the 29th day of February, 2008.\n\n                                    O R D E R\n<\/pre>\n
      This Civil Revision Petition is directed against the judgment dated<\/p>\n
7.6.2006 in C.M.A. No.66 of 2005 on the file of the District Court,<\/p>\n
Kottayam.      The execution court passed an order dismissing E.A. No.407<\/p>\n
of 2003 in E.P. No.324 of 2000 in O.S. No.135 of 1997 on the file of the<\/p>\n
Principal Sub Court, Kottayam.          E.A. No.407 of 2003 was filed by the<\/p>\n
revision petitioner\/judgment debtor under Order XXI Rule 90 C.P.C. to set<\/p>\n
aside the court sale conducted on 2.6.2003.\n<\/p>\n<\/p>\n
      2. O.S.No. 135 of 1997 is a suit for realisation of an amount of<\/p>\n
Rs.47,656\/- with 12% interest from 21.3.1994 to 20.11.1999 and future<\/p>\n
interest at 6%.     The respondent\/decree-holder in execution of the decree<\/p>\n
in the said suit attached 41 cents of land belonging to the judgment debtor<\/p>\n
and the execution court sold the said property in court auction held on<\/p>\n
2.6.2003. The decree-holder bid the auction and purchased the property<\/p>\n
for Rs.83,509\/-.      A petition for setting aside the sale was filed by the<\/p>\n
judgment debtor inter alia contending that there was no proper publication,<\/p>\n
that the sale is vitiated by fraud and that the petitioner sustained substantial<\/p>\n
injury as the property was sold for inadequate price. It was also contended<\/p>\n
C.R.P. NO.308\/2007                     2<\/span><\/p>\n
that there were valuable trees in the property and that the decree -holder<\/p>\n
had deliberately withheld publication as a result of which the intending<\/p>\n
purchasers were not able to participate in the auction. The judgment debtor<\/p>\n
also contended that the property was sold at the rate of Rs.2000\/- per cent<\/p>\n
whereas the property fetched more than Rs.20,000\/- per cent on the date of<\/p>\n
sale. She also contended that a portion of the property alone was sufficient<\/p>\n
to satisfy th decree and that by the sale of the entire property, she was put<\/p>\n
to substantial injury.\n<\/p>\n<\/p>\n
       3. In the objection filed by the respondent\/decree-holder, it is stated<\/p>\n
that the petitioner had also filed another E.A. under Section 47 C.P.C. for<\/p>\n
the very same relief and as such, the petition is not maintainable. It is also<\/p>\n
stated that there was no objection from the side of the judgment debtor<\/p>\n
regarding the value of the property at the time when Rule 66 notice was<\/p>\n
issued and that there was proper publication.\n<\/p>\n<\/p>\n
       4. In support of and opposition to the petition for setting aside the<\/p>\n
sale, the parties were examined as PW.1 and CPW.1. The court below<\/p>\n
examined the contention of the decree-holder that the petition for setting<\/p>\n
aside the sale filed under Order XXI Rule 90 C.P.C. is not maintainable in<\/p>\n
view of the earlier application filed under Section 47 C.P.C. The court<\/p>\n
C.R.P. NO.308\/2007                      3<\/span><\/p>\n
below noticed the fact that E.A. No.407 of 2003 was filed on 1.9.2003<\/p>\n
under Order XXI Rule 90 C.P.C. and that the application under Section<\/p>\n
47 C.P.C. was filed subsequently on 13.10.2004. Following the decision<\/p>\n
of this Court that there is no legal bar in simultaneously prosecuting the<\/p>\n
two applications and that when an application under Section 47 C.P.C. is<\/p>\n
filed challenging the sale to be void for illegality or voidable on the<\/p>\n
grounds other than those contemplated under Order XXI Rule 90 C.P.C.,<\/p>\n
the court below found that there cannot be any bar in maintaining Order<\/p>\n
XXI Rule 90      application. The court below held that there was proper<\/p>\n
publication in conducting the sale. The court below also held that at the<\/p>\n
time of proclamation, it was open to the revision petitioner to raise<\/p>\n
objection regarding the value of the property and that having failed to raise<\/p>\n
any such objection, she is not entitled to challenge the sale on that ground<\/p>\n
in view of Order XXI Rule 90(3) C.P.C. The court below further held that<\/p>\n
there is no irregularity, illegality or fraud in either publication or conduct<\/p>\n
of sale and that the revision petitioner failed to establish that by reason of<\/p>\n
the sale she has sustained any substantial injury. The revision petitioner<\/p>\n
preferred C.M.A. No.66 of 2005 before the District Court, Kottayam. By<\/p>\n
the impugned order, the District Court confirmed the order passed by the<\/p>\n
execution court and dismissed the appeal.       The appellate court held that<\/p>\n
there was proper publication of notice and that the judgment debtor has not<\/p>\n
C.R.P. NO.308\/2007                    4<\/span><\/p>\n
proved the substantial injury or irregularity. The appellate court also held<\/p>\n
that that no evidence was let in to prove the increase in price.<\/p>\n
       5. The transaction between the parties relates to an agreement<\/p>\n
executed on 24.12.1993 for sale of 41 cents of land. The land was sold for<\/p>\n
a consideration of Es.2250\/- per cent. Rs.47,500\/- was received by the<\/p>\n
revision petitioner from the respondent as advance amount. Since the sale<\/p>\n
did not take place, the suit was instituted by the respondent and the<\/p>\n
present decree was passed for recovery of an amount of Rs.47,500\/- with<\/p>\n
interest at 12% from 21.3.1994 to 20.11.1999 and future interest at 6%<\/p>\n
with costs. During the pendency of the execution petition for realisation of<\/p>\n
the decree amount, certain payments were effected by the revision<\/p>\n
petitioner.  According to her, an amount of Rs.2500\/- was paid on<\/p>\n
27.5.2002, Rs.5000\/- was paid on 10.10.2002, Rs.1000\/- on 16.10.2002,<\/p>\n
Rs.2000\/- on 2.11.2002 , Rs.5000\/- on 29.11.2003 and another Rs.5000\/-<\/p>\n
on 10.4.2003. The property was sold on 2.6.2003 and purchased by the<\/p>\n
decree-holder for Rs.83,509\/-. The court sale took place ten years after the<\/p>\n
agreement entered into between the parties fixing the price at Rs.92,250\/-.<\/p>\n
       6. The agreed price of the property as per the original agreement<\/p>\n
dated 24.12.1993 is Rs.2,250\/- per cent which works out to a total amount<\/p>\n
C.R.P. NO.308\/2007                    5<\/span><\/p>\n
of Rs.92,250\/-. The property was sold in court auction for Rs.83,509\/- on<\/p>\n
2.6.2003. There is a gap of ten years. It is common knowledge that there<\/p>\n
has been three to five- fold increase in the price of properties in Kerala<\/p>\n
during the gap of ten years. In some areas, the increase is much more than<\/p>\n
that. No doubt, there was a sharp increase in the price of land throughout<\/p>\n
the state.   The judgment debtor as RW.1 gave evidence to the effect that<\/p>\n
the price of the property per cent at the time of sale was more than<\/p>\n
Rs.20,000\/-. The property which was sold on 24.12.1993 at Rs.2250\/- per<\/p>\n
cent was sold in court auction after ten years for Rs.83,509\/- which is less<\/p>\n
than the agreed price in 1993.\n<\/p>\n<\/p>\n
       7. The estimate of the value of the property is a material fact to<\/p>\n
enable the purchaser to know its value. It must be verified as accurately<\/p>\n
and fairly as possible so that the intending bidders are not misled or to<\/p>\n
prevent them from offering inadequate price or to enable them to make a<\/p>\n
decision in offering adequate price. The Supreme Court in Desh Bandhu<\/p>\n
Gupta v. N.L. Anand & Rajinder Singh,<\/a> reported in (1994) 1 SCC 131<\/p>\n
held that the court, when stating the estimated value of the property to be<\/p>\n
sold, must not accept merely the ipse dixit of one side. It is certainly not<\/p>\n
necessary for it to state its own estimate. Rule 66(2)(e) of Order XXI<\/p>\n
C.P.C. requires the court to state only the nature of the property so that the<\/p>\n
C.R.P. NO.308\/2007                     6<\/span><\/p>\n
purchaser should be left to judge the value for himself. But, the essential<\/p>\n
facts which have a bearing on the very material question of value of the<\/p>\n
property and which could assist the purchaser in forming his own opinion<\/p>\n
must be stated, i.e., the value of the property, that is, after all, the whole<\/p>\n
object of Order XXI, Rule 66(2)(e) C.P.C. Compulsory sale of immovable<\/p>\n
property under Order XXI C.P.C. divests right, title and interest of the<\/p>\n
judgment debtor and confers those rights in favour of the purchaser. In the<\/p>\n
present case, the execution court had completely overlooked compliance of<\/p>\n
the mandatory procedure and accepted ipse dixit of the decree holder.<\/p>\n
Fixation of Rs.75,000\/- as value suggested by the decree holder and sale of<\/p>\n
the property for Rs.83,509\/-      had deprived the valuable rights of the<\/p>\n
judgment debtor. It is a case of non-application of judicial mind and<\/p>\n
abdication of judicial duty. Though the insertion of an order judicially<\/p>\n
passed need not be made in the sale proclamation, the record should<\/p>\n
indicate that a judicial order has been passed showing that it had applied<\/p>\n
its mind to the need for determining all the essential particulars, which<\/p>\n
would reasonably be looked for by an intending purchaser. The relevant<\/p>\n
and material particulars should be inserted in the sale proclamation as<\/p>\n
accurately and precisely as possible.        It should not merely accept<\/p>\n
unhesitatingly the ipse dixit of one or either side or both. Where the court<\/p>\n
mechanically conducts the sale or routinely signs assent to the sale papers,<\/p>\n
C.R.P. NO.308\/2007                    7<\/span><\/p>\n
not bothering to see if the offer is too low and a better price could have<\/p>\n
been obtained, and in fact the price is substantially inadequate, there is the<\/p>\n
presence of both the elements of irregularity and injury. It shall be the<\/p>\n
endeavour of the court, throughout the entire process of sale, to obtain the<\/p>\n
adequate price of the property put in for sale. Obtaining of inadequate<\/p>\n
price in auction sale no doubt amounts to               “substantial injury”<\/p>\n
contemplated under sub-rule (2) of Rule 90 of Order XXI C.P.C.<\/p>\n
       8. Non-application of mind is a material irregularity which vitiates<\/p>\n
the sale. Sale of land at Rs.83,509\/- after ten years of the transaction<\/p>\n
between the parties at Rs.92,250\/- is bad.       The     drawing up of the<\/p>\n
proclamation of sale and settlement of its term by non-application of<\/p>\n
judicial mind renders the sale a nullity, being void. The execution court<\/p>\n
has a salutory duty and a legislative mandate to apply its mind before<\/p>\n
settling the terms of proclamation and satisfy that if part of such property<\/p>\n
as seems necessary to satisfy the decree should be sold if the sale proceeds<\/p>\n
or portion thereof is sufficient for payment to the decree holder, so much<\/p>\n
of that property alone should be ordered to be sold in execution. It is a<\/p>\n
mandate of the legislature which cannot be ignored. Non-application of<\/p>\n
mind to the question whether sale of a part of the property would satisfy<\/p>\n
the decree debt is a material irregularity causing substantial injury to the<\/p>\n
C.R.P. NO.308\/2007                      8<\/span><\/p>\n
judgment debtor attracting Order XXI Rule 90 C.P.C. In this case, a<\/p>\n
portion of the property put to sale would have been sufficient to satisfy the<\/p>\n
decree. Sale of the entire property for an amount of Rs.83,509\/- caused<\/p>\n
substantial injury to the judgment debtor. The procedure adopted by the<\/p>\n
execution court bristles with several irregularities touching the jurisdiction<\/p>\n
of the courts. They are not only material irregularities causing substantial<\/p>\n
injustice, but are in violation of the mandatory requirements of the rules.<\/p>\n
       9. The contention that a portion of the property would fetch the<\/p>\n
decree amount,even if not raised before proclamation of sale, can be taken<\/p>\n
up in proceeding under Order XXI Rule 90 C.P.C. is examined in Gnan<\/p>\n
Das v.Paulin Moraes, reported in 1998(2)K.L.T.88, a Division Bench of<\/p>\n
this Court held that when the property attached is large,and the decree to<\/p>\n
be satisfied is small, a duty is cast on the court to ascertain whether the<\/p>\n
decree would be satisfied by selling the small portion. No action of the<\/p>\n
court or its officers should be such as to give rise to the criticism that it<\/p>\n
was done in an indifferent casual way. Non-discharge of its statutory duty<\/p>\n
renders the entire proceedings illegal and without jurisdiction. It is a mere<\/p>\n
irregularity, but a matter which goes to the very root of jurisdiction of the<\/p>\n
court.\n<\/p>\n
       10. The court below has committed grave error and acted without<\/p>\n
C.R.P. NO.308\/2007                     9<\/span><\/p>\n
jurisdiction in not addressing itself to the question as to whether one item<\/p>\n
of property or portion of the properties if sold would satisfy the decree<\/p>\n
amount. The Division Bench in the decision cited supra held that Order<\/p>\n
XXI Rule 90(3) C.P.C. would not bar such a petition since the very<\/p>\n
question of jurisdiction of the court is involved. The court can even suo<\/p>\n
motu consider such question, if it has committed an illegality which goes<\/p>\n
to the very root of the jurisdiction of the court. Even if no application is<\/p>\n
filed under Order XXI Rule 89, 90 or 91 C.P.C., the court can look into the<\/p>\n
question whether it has acted in excess of its jurisdiction, when the<\/p>\n
question of confirmation of sale comes up for consideration under Order<\/p>\n
XXI Rule 92 C.P.C.\n<\/p>\n<\/p>\n
       11. The words “necessary to satisfy the decree” in Order 21 Rule 64<\/p>\n
C.P.C. clearly indicate the legislative intent that no sale can be allowed<\/p>\n
beyond the decretal amount mentioned in the sale proclamation. In all<\/p>\n
execution proceedings, the court has to first decide whether it is necessary<\/p>\n
to bring the entire property to sale or such portion thereof as may be<\/p>\n
necessary to satisfy the decree. If the property is large and the decree to<\/p>\n
be satisfied is small, the court must bring only such portion of the property<\/p>\n
the proceeds of which would be sufficient to satisfy the claim of the<\/p>\n
decree holder.     The Supreme Court in Balakrishnan v. Malaiyandi<\/p>\n
C.R.P. NO.308\/2007<\/span><\/a>                    10<\/p>\n
Konar, reported in 2006(3) SCC 49 held that the mandate contained in<\/p>\n
Rule 64 of Order 21 C.P.C is not just a discretion, but an obligation<\/p>\n
imposed on the court and that the sale held without examining this aspect<\/p>\n
and not in conformity with this mandatory requirement would be illegal<\/p>\n
and without jurisdiction. Therefore, I hold that the sale conducted is not in<\/p>\n
conformity with the statutory requirements and, therefore, illegal and<\/p>\n
without jurisdiction.\n<\/p>\n<\/p>\n
       12. The procedure prescribed in the Code of Civil Procedure in<\/p>\n
settling the sale proclamation and in publishing the same would pin point<\/p>\n
the importance of the existence of a proper proclamation of sale in court<\/p>\n
auction. If the court fixes an upset price which does not reflect at least an<\/p>\n
approximately real value of the property, the intending bidder would be<\/p>\n
misled by the same and this would, sometime, result in fetching a low<\/p>\n
price at the court auction sale.     A Division Bench of this Court in<\/p>\n
P.K.Kuruvilla v. Corporation Bank reported in 2008(1) K.H.C., 258<\/p>\n
held that fixing upset price in a mechanical manner would be against the<\/p>\n
mandate of Rule 66 of Order XXI C.P.C. This Court quoted with approval<\/p>\n
the decision of the Supreme Court in Desh Bandhu Gupta,s case cited<\/p>\n
supra that Rule 90(3) C.P.C. has no application where sale was held in<\/p>\n
violation of the mandatory requirements of the Rules. The facts narrated<\/p>\n
C.R.P. NO.308\/2007                   11<\/span><\/p>\n
above would show that the court below had not complied with the<\/p>\n
mandatory requirements of Rules 64 and 66 of Order XXI C.P.C.<\/p>\n
       13. Learned counsel appearing for the revision petitioner pointed<\/p>\n
out that the revision petitioner had brought to the notice of the appellate<\/p>\n
court that objections were raised under Rule 66 C.P.C. on 19.9.2001 and<\/p>\n
that the court rejected the contentions stating that the records did not<\/p>\n
indicate that any such objections were filed. From the oral evidence<\/p>\n
tendered by the judgment debtor, I find that she is the proprietor of a petty<\/p>\n
tea shop who was making every effort to save her property from court<\/p>\n
auction. She and her family were able to make both ends meet from the<\/p>\n
income she derived from the tea shop and from the auctioned property.<\/p>\n
Before the court below, the revision petitioner had expressed her readiness<\/p>\n
and willingness to pay the balance decree amount. According to her, the<\/p>\n
decree holder did not receive the amount with the mala fide intention to<\/p>\n
purchase the property in court auction at a low price. This Court tried to<\/p>\n
ascertain from the counsel for the revision petitioner whether the revision<\/p>\n
petitioner was prepared to deposit the sale price, sale commission       and<\/p>\n
interest on the sale price from the date of deposit till date of payment and<\/p>\n
also the cost of stamp paper, if any. The revision petitioner has expressed<\/p>\n
her readiness to deposit the entire amount specified in the interim order<\/p>\n
C.R.P. NO.308\/2007                     12<\/span><\/p>\n
passed by this Court and has deposited the amount as directed by this<\/p>\n
Court.\n<\/p>\n<\/p>\n
       14. In the light of the facts and circumstances mentioned above, I<\/p>\n
am of the view that the court below was not right in dismissing the<\/p>\n
application for setting aside the sale. The sale is vitiated by material<\/p>\n
irregularity within the meaning of Rule 90 of Order XXI C.P.C. The<\/p>\n
revision petitioner sustained substantial injury by reason of such<\/p>\n
irregularity.\n<\/p>\n<\/p>\n
       In the result, the Civil Revision Petition is allowed, setting aside the<\/p>\n
impugned order passed by the court below. The application to set aside<\/p>\n
the sale is allowed. The decree holder is entitled to appropriate the decree<\/p>\n
amount deposited by the revision petitioner.      The revision petitioner shall<\/p>\n
deposit the balance amount, if any, as directed by this Court in the interim<\/p>\n
order dated 9.4.2007 before the execution court within one month from<\/p>\n
today. There will be no order as to costs.\n<\/p>\n<\/p>\n
                                   (HARUN-UL-RASHID, JUDGE)<\/p>\n
sp\/<\/p>\n
C.R.P. NO.308\/2007    13<\/span><\/p>\n
                              C.R.\n<\/p>\n
                          HAURN-UL-RASHID, J.\n<\/p>\n
                          C.R.P.NO.308\/2007<\/p>\n
                              O R D E R<\/p>\n
                          29TH FEBRUARY, 2008<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Thankamma vs Leelamma Abraham on 29 February, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRP No. 308 of 2007() 1. THANKAMMA, D\/O.EDATHALA VEETTIL … Petitioner Vs 1. LEELAMMA ABRAHAM, … Respondent For Petitioner :SRI.T.C.MOHANDAS For Respondent :SRI.BECHU KURIAN THOMAS The Hon’ble MR. Justice HARUN-UL-RASHID Dated :29\/02\/2008 O R D E […]<\/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-216797","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nThankamma vs Leelamma Abraham on 29 February, 2008 - 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\/thankamma-vs-leelamma-abraham-on-29-february-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thankamma vs Leelamma Abraham on 29 February, 2008 - 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