Execution of a decree without notice to property owners results in fraud, permitting relief under the Limitation Act despite expiry of the normal period.

O R D E R

A court auction was conducted with respect to the property attached before judgment in execution of a money decree without giving notice to its real owners. On came to know about the court sale conducted, the real owners came up with an application in E.A.No.567 of 2007 in E.P.No.382 of 2003 in O.S.No.93 of 1997 of the Sub Court, Ernakulam under Order XXI Rule 90 of the Code of Civil Procedure to set aside the sale held on 22.7.2004 and confirmed on 25.9.2004.

2. A money suit was filed by the decree holders/petitioners which ended in a decree for recovery of money based on a contract for sale. The contract for sale could not be performed and as such the plaintiffs came up with the suit in O.S.No.93 of 1997 for recovery of the advance amount and it was decreed. In the trial stage, the property which is the subject matter of the contract for sale was attached before judgment. Prior to that the property was transferred by defendants 1 and 2 to strangers who were subsequently impleaded in the suit as additional defendants 3 to 6. The decree was put in execution and the property attached before judgment was auctioned and the decree holders bid the property on 25.7.2004 and the sale was confirmed on 25.9.2004. They have mutated the property in their name and began to pay tax. It is thereafter respondents 1 to 4/ additional defendants 3 to 6, after three years, came up with an application in E.A.No.567 of 2007 under Order XXI Rule 90 CPC alleging fraud in publishing and conducting the sale. The said application was dismissed by the execution court. It was taken up in appeal in C.M.A.No.50 of 2011 before the additional District Court, Ernakulam. The first appellate court set aside the order of the trial court, allowed the appeal and set aside the sale conducted by its judgment dated 25.7.2013, which is under challenge in the present revision.

3. The main challenge is that the application under Order XXI Rule 90 CPC is barred by limitation as it was filed after three years from the date of confirmation of the sale and that Section 17 of the Limitation Act has no application in the case on hand.

4. Section 17 of the Limitation Act is squarely applicable and it is well evident from the execution petition and the proceedings initiated by the execution court in publishing and conducting the sale. Though the owners of the property, who were arrayed as additional defendants 3 to 6 in the suit, were impleaded in the execution petition as additional judgment debtors no notice was given to them regarding the initiation of execution proceedings. In the execution application there is no prayer to issue notice to additional defendants 3 to 6. The notice was given only to defendants 1 and 2 who were not having a transferable or alienable right over the property attached before judgment either as on the date of attachment or on any subsequent dates. It is an admitted case of both the parties that the first and second defendants who are the real judgment debtors had sold the property even prior to the attachment before judgment to the persons who were subsequently impleaded in the said suit as additional defendants 3 to 6.

5. It is unknown to law to execute a decree without giving notice to the person against whom the decree is sought to be executed. From the facts involved in the case it is well evident that the judgment debtors/defendants 1 and 2 were made as parties to the execution petition in their status as judgment debtors. Though execution proceedings were initiated against the judgment debtors/defendants 1 and 2, what is sought in the execution petition is to proceed against the property belonging to the additional defendants 3 to 6. They are really not in the status of judgment debtors. They were unnecessarily impleaded in the suit for recovery of money stating that they are the subsequent purchasers of the property owned by defendants 1 and 2. It is really impermissible to implead the subsequent purchasers of the property in a