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KOLATHINGAL MARIYUMMA versus THE SOUTH MALABAR GRAMIN BANK

High Court of Kerala

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KOLATHINGAL MARIYUMMA v. THE SOUTH MALABAR GRAMIN BANK - WP(C) No. 25336 of 2006(N) [2007] RD-KL 1905 (24 January 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 25336 of 2006(N)

1. KOLATHINGAL MARIYUMMA,
... Petitioner

Vs

1. THE SOUTH MALABAR GRAMIN BANK,
... Respondent

2. A.MUJEEB, S/O.MOIDEENKUTTY,

For Petitioner :SRI.P.SAMSUDIN

For Respondent :SRI.K.M.SATHYANATHA MENON

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :24/01/2007

O R D E R

M.SASIDHARAN NAMBIAR, J.

........................................... W.P.(C)No.25336 OF 2006 ............................................

DATED THIS THE 24th DAY OF JANUARY, 2007



JUDGMENT

Petitioner is the wife of the judgment debtor. First respondent is the decree holder. Second respondent is the auction purchaser. Judgment debtor was impleaded as 3rd respondent in this petition as per order in I.A.1334 of 2007. As per the decree in O.S.339 of 2002, first respondent is entitled to realise Rs.8780/- with interest at 6% and cost from the 3rd respondent. For realisation of the decree debt, first respondent filed E.P.273 of 2005. Third respondent judgment debtor was in Saudi Arabia during the period. In the execution petition, nine and one-fourth cents in resurvey No.508/11A of Perumanna Village was sold. Second respondent, purchased it for Rs.75,000/- which was the upset price fixed by the executing court. Sale was confirmed. As the judgment debtor was away in foreign country, no application under Rule 89 or Rule 90 of Order XXI of Code of Civil Procedure was filed. The wife of the judgment debtor filed this petition under Article 227 of Constitution of India for her WP(C)25336/2006 2 husband the judgment debtor to set aside the sale and to reconvey the property to the judgment debtor contending that her husband was away in Saudi Arabia and due to the expiry of the visa he was not in a position to return to India or to approach the court and file this application the property was sold for a low price and there was no necessity to sell the whole property as by sale of a part of the property decree debt could have been satisfied and the sale was in violation of the provisions of Code of Civil Procedure and as a result miscarriage of justice was caused and so the sale is to be set aside.

2. Petition was opposed by second respondent contending that he is a bonafide purchaser for value and purchased the property for Rs.75,000/- and there is no reason to set aside the sale as claimed by the petitioner. It was also contended that wife of the judgment debtor has no locus standi to seek the remedy by filing the petition. First respondent/decree holder submitted that decree holder is only interested in realisation of the decree debt due.

3. Learned counsel appearing for petitioner WP(C)25336/2006 3 submitted that judgment debtor is prepared to pay the entire amount due to second respondent auction purchaser, including the purchase money deposited, its interest and cost incurred and as the sale is even otherwise vitiated, the sale may be set aside. It was argued that as per the execution petition, the amount due to the decree holder was only Rs.13,420/- and there is no necessity to sell the entire property as by sale of a part of the property the decree debt could have been satisfied and sale was conducted in violation of the provisions of Rule 64 of Order XXI of Code of Civil Procedure and therefore sale is to be set aside.

4. Learned counsel appearing for second respondent argued that petitioner is not entitled to seek the setting aside of the sale and there is no valid ground to set aside the sale when the remedy provided under Rule 89 or 90 of Order XXI was not availed of and therefore the petition is only to be dismissed.

5. Though the original petition was filed by the wife of judgment debtor, subsequently the judgment debtor was also impleaded. Petitioner has WP(C)25336/2006 4 satisfactorily explained the reason why, she had to file the petition for her husband and why the judgment debtor was incapacitated from approaching the executing court or this court. In such circumstances, petition cannot be dismissed on the ground that it was filed by the wife of the judgment debtor. Rule 64 of Order XXI of Code of Civil Procedure expressly provides that before directing sale of the attached property, executing court has to consider whether for realisation of the decree debt, the entire property is to be sold or by sale of a part of the property, the decree could be satisfied. As settled by Apex Court in various pronouncements, Rule 64 casts an obligation and not a discretion on the executing court. The decree debt was only Rs.8780/- with interest and cost. Even the execution petition was for realisation of Rs.13,420/- then due. The upset price fixed was Rs.75,000/- and the property was sold for Rs.75,000/-. It is absolutely clear that for realisation of a decree debt of less than Rs.15,000/- a property worth Rs.75,000/-, which was purchased by auction purchaser need not have been sold. Therefore the sale conducted by the court is in WP(C)25336/2006 5 utter violation of mandatory provisions of Rule 64 which vitiates the sale. Even without filing an application under Rule 90 of Order XXI, when this material aspect is brought to the notice of this court and it is satisfactorily6 proved that as a result there was miscarriage of justice, in exercise of the supervisory jurisdiction of this court the sale has to be set aside; it is more so when the decree holder is not opposing the application and it is being opposed only by the auction purchaser and the auction purchaser could be adequately compensated. The loss of the auction purchaser can be compensated by directing payment of the purchase money deposited by him with interest from that date of deposit till this day and also the expenses met by the second respondent for purchase of stamp paper and allied expenses. Munsiff Court, Manjeri can be directed to pass appropriate order fixing the amount to be paid to second respondent/auction purchaser. Second respondent is entitled to withdraw the purchase money deposited by him. Judgment debtor has to deposit the interest on that amount from the date of deposit till this day at WP(C)25336/2006 6 10% per annum along with the money spent for purchase of stamp papers and five percentage of the purchase money and the entire decree debt due to decree holder till the date of court sale. The Executing court has to direct judgment debtor to deposit that amount within fifteen days. On such deposit, executing court has to direct the second respondent to reconvey the property to the judgment debtor. It is made clear that the decree holder is entitled to withdraw the decree debt on deposit and the judgment debtor need deposit the amount due to decree holder and auction purchaser. Auction purchaser is entitled to the amount so deposited and has to execute the reconveyance at the expense of the judgment debtor. Writ petition is disposed accordingly.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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