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2021 Supreme(Online)(KER) 43906
HIGH COURT OF KERALA
V. G. Arun, J
T. MURALEEDHARAN – Appellant
Versus
BANK OF INDIA – Respondent
OP(C)/1878/2016
SRI.T.SETHUMADHAVAN (SR.), SMT.DEEPA NARAYANAN, SRI.K.JAYESH MOHANKUMAR, SRI.PUSHPARAJAN KODOTH, SMT.VANDANA MENON, SRI.J.HARIKUMAR, SC, BANK OF INDIA, SRI.G.SREEKUMAR (CHELUR)
Execution proceedings are not subject to the Limitation Act, preventing the condonation of delay in restoration applications.
Headnote:
Limitation - Execution Proceedings - CPC Section List - The court held that Section 5 of the Limitation Act does not apply to execution proceedings, reinforcing that delay in such matters cannot be condoned, thus determining the dismissal of the petitioners' application.
Fact of the Case:
The petitioners challenged the execution sale of their property, alleging fraud and irregularities. They filed applications to restore their earlier petition after learning it was dismissed but faced resistance due to an inordinate delay in filing.
Finding of the Court:
The court concluded that the execution court properly dismissed the applications by the petitioners since it lacked authority to condone the delay in execution proceedings, citing the inapplicability of the Limitation Act.
Issues: The main issue was whether the execution court had the power to condone the delay in filing applications related to execution proceedings.
Ratio Decidendi: The court established that the provisions of the Limitation Act do not apply to execution proceedings, particularly in the context of applications under Order 21 Rule 90 and Order 9 Rule 9 of the Civil Procedure Code.
Final Decision: The Original Petition is dismissed.
The petitioners are the judgment debtors in E.P.No.335 of 2001 in O.S. No.141 of 1999 on the files of the Additional Sub Court - I, Kozhikode. The suit filed by the 1st respondent Bank for realization of money was decreed and in the execution proceedings, the decree schedule property was purchased by the 2nd respondent, on 09.06.2009. Thereafter, the petitioners moved Ext.P2 application under Order 21 Rule 90 seeking to set aside the sale, alleging irregularity and fraud. It was alleged that the property was sold at a much lower price than its actual market value and that the decree could have been satisfied by selling only a portion of the property.
2. Earlier the petitioners had filed an Original Suit against one Rijesh, as O.S.No.282 of 2009 of the IInd Additional Sub Court, Kozhikode. That suit was filed seeking to set aside the sale deeds alleged to have been executed by the petitioners assigning the decree schedule property in favour of Rijesh. The suit was decreed and thereupon Rijesh filed appeal, which is pending consideration before this Court. While so, Rijesh moved a claim petition in E.P.No.335 of 2001 in O.S. No.141 of 1999. The Execution Court dismissed the claim petition on 21.08.2015 and confirmed the sale on the same day. Thereafter the execution petition was posted for effecting delivery.
3. According to the petitioners, when action was initiated for effecting delivery after dismissal of the claim petition filed by Rijesh, they made enquiries regarding the status of Ext.P2 application filed by them for setting aside the sale and thereupon, came to know that Ext.P2 application had been dismissed on 28.02.2013. Immediately, the petitioners filed Exts.P3, P4 and P5 applications for condonation of delay, restoration of Ext.P2 and stay of further proceedings in the Execution Petition. Those applications having been dismissed by Exts.P7, P8 and P9 orders, this Original Petition is filed.
4. Learned Senior Counsel appearing for the petitioners submitted that the reasoning adopted by the Execution Court is patently wrong and at any rate, Ext.P2 application ought to have been decided on merits. It is contended that, for the sole reason that the petitioners were pursuing O.S.No.282 of 2009 filed against Rijesh, the Execution Court should not have assumed that the petitioners were aware about the dismissal of Ext.P2 application. It is pointed out that the petitioners have filed I.A.No.453 of 2021 before the Execution Court under Section 47 CPC. Attention is drawn to the decision of the Hon’ble Supreme Court in S.Mariyappa v. Siddappa [ (2005) 10 SCC 235 ] to contend that an application under Section 47 is maintainable, even after dismissal of an earlier application under Order 21 Rule 90 CPC.
5. Learned Counsel appearing for the auction purchaser submitted that absolutely no interference is warranted against the impugned order. It is pointed out that the inordinate delay of more than 1103 days in filing the application for restoration shows the callous manner in which the petitioners had contested the case. It is submitted that Order 21 Rule 64 does not have any application in the instant case. The decree schedule property was mortgaged with the bank and there is no provision for sale of the mortgaged property in parcels for realisation of the decree amount. It is contended that Section 5 of the Limitation Act has no application in execution proceedings and therefore, whatever be the delay, the Execution Court has no power to condone it.
6. Sri.J.Harikumar, learned counsel appearing for the
1st respondent Bank supported the contentions of the auction purchaser and submitted that the Execution Court should have dismissed the applications filed by the petitioners in limine, since the court is not empowered to condone the delay in execution proceedings.
7. Having heard the learned counsel, I find merit in the contention raised on behalf of the respondents that the court below was not called upon to consider the applic
