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2025 Supreme(Online)(Ker) 20912
IN THE HIGH COURT OF KERALA AT ERNAKULAM
JUSTICE, J
E.R.Ajoy – Appellant
Versus
Muthuraj – Respondent
WP(C) 18803/2008
For the Appellants/Petitioners: Sri.V.V.Asokan, Smt.T.K.Sreekala
For the Respondents: Sri.Krishnan Unni, Sri.Arun Thomas
The court emphasized the mandatory duty of the executing court to determine whether the entire property needs to be sold to satisfy the decree, highlighting that failure to do so constitutes material irregularity and may lead to substantial injury.
Headnote:(A) Code of Civil Procedure, 1908 - Order 21 Rule 90 - Writ Petition challenging orders of District Court regarding execution applications - Applications to set aside auction sale allowed by executing court based on material irregularity and fraud - Proper valuation of property was not conducted, leading to gross undervaluation and substantial injury to the minor's interest - The executing court's duty to ascertain necessity of selling entire property was emphasized - Writ Petition dismissed. (Paras 6, 12, 17)
(B) Limitation Act, 1963 - Section 5 and Section 6 - Applicability of limitation provisions in execution proceedings discussed - Court held that Section 5 does not apply to execution petitions and that minor's legal disability is covered under Section 6 - Applications filed were barred by limitation. (Paras 14, 15)
(C) Jurisdiction - The executing court must determine if the entire property needs to be sold to satisfy the decree - Failure to do so renders the sale void. (Paras 10, 17)
| Table of Content |
|---|
| 1. writ petition seeks to challenge orders from execution proceedings. (Para 1 , 2 , 3 , 4) |
| 2. petitioner's contentions against the execution court's decisions. (Para 5) |
| 3. respondent's defense against petitioner's claims. (Para 6) |
| 4. court's jurisdiction under article 227 established. (Para 7) |
| 5. details of the properties and the sale process. (Para 8 , 9 , 10 , 11) |
| 6. court's findings on irregularities and fraud in sale. (Para 12 , 13 , 14 , 15 , 16 , 17) |
JUDGMENT
Dated this the 06th day of February, 2025
This Writ Petition is filed seeking to set aside Exts.P4, P5, P6 and P7 which are the orders of the District Court, Palakkad, in C.M.A.Nos.74 and 75 of 2006 issued from E.A.No.592 of 2005 in E.P.No.376 of 2000 in O.S.No.630 of 1997 and E.A.No.594 of 2005 in E.P.No.465 of 2001 in O.S.No.172 of 1998 respectively.
2. The above E.As. were applications filed under Order
21 Rule 90 of the Code of Civil Procedure, 1908 (C.P.C.), seeking to set aside a sale alleging irregularity/fraud. The said applications were allowed by the executing court and the first appellate court. The same is challenged in this W.P.(C).
Facts in brief :
3. Original Suits (O.S.No.630 of 1997 and O.S.No.172 of 1998) were filed by Ramaswamy Kounder (2nd respondent herein) against one Nataraja Kounder for realisation of Rs.39,159/- and Rs.49,310/- respectively. Pending suits the defendant Nataraja Kounder had died and his legal heirs i.e., the widow and children including a minor son were impleaded as defendants. Both suits were decreed (during 1998 and 2000 respectively) permitting Ramaswamy Kounder to realize the respective sums with interest of 12% and costs. He proceeded with execution and attached and brought for sale, properties having an extent of 9 acres. The petitioner (E.R.Ajoy) bid the property in auction for a sum of Rs.1,55,000/- and settled the encumbrances upon the properties. At that stage, applications under Order 21 Rule 89 C.P.C. were filed by the 6th respondent in both execution petitions to set aside the sale and to condone the delay contending that the applications were made beyond the limitation prescribed. The said plea was accepted and the applications were rejected by the execution court. In the meanwhile a stranger, one Gopalaswamy Kounder, filed applications in the execution petitions to appoint him as a next friend of 1st respondent and sought to set aside the same auction sale dated 27.06.2005. The execution court dismissed all the applications inter alia stating that the same had been filed by a next friend without discharging the guardian who represented the minor in the execution proceeding. The 1st respondent challenged the same before this Court and this Court vide Ext.P1 judgment directed the execution court to dispose of the applications under Order 21 Rule 90 C.P.C. in accordance with law and in the light of the observations made in the judgment. It is contended that the execution court, while proceeding afresh as directed by this Court in Ext.P1 had without properly considering the contentions of the petitioner allowed the applications filed vide separate orders (Exts.P4 and P5). Appeals were preferred before the District Court as C.M.A.Nos.74 and 75 of 2006 to no avail. Hence the petitioner has approached this Court with this Writ Petition.
4. Heard Sri.V.V.Asokan, learned Senior Advocate, instructed by Smt.T.K.Sreekala, Advocate on behalf of the Petitioner and Sri.Krishnan Unni, learned Senior Advocate, instructed by Sri.Arun Thomas, Advocate on behalf of the 1st respondent.
5. Contentions of the petitioner :
● The orders of the execution court and the District Court are contrary to law and fit to be set aside.
● The execution court erred in entertaining the EAs filed by the 1st respondent under Order 21 Rule 90 of the C.P.C. In the appeals, the District Court ought to have set aside the execution court's irregular orders and allowed the petitioner's appeals.
● The execution court had put the property for sale on 05.05
