Kerala High Court
K.Parasuraman vs P.Srinivasa Raghavan on 24 March, 2014
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
MONDAY, THE 24TH DAY OF MARCH 2014/3RD CHAITHRA, 1936
OP(C).No. 639 of 2011 (O)
--------------------------
OS 126/2007 of PRINCIPAL SUB COURT,PALAKKAD
PETITIONER:
------------------
K.PARASURAMAN, AGED 42 YEARS,
S/O.KRISHNANKUTTY MOOTHAN, ARAPPATH HOUSE,
PANNADARKKOTTIL, THERUVIL, KARNAKI NAGAR,
KOPPAM, PALAKKAD.
BY ADVS.SRI.P.S.SREEDHARAN PILLAI
SMT.C.G.PREETHA
SRI.T.K.SANDEEP
SRI.ARJUN SREEDHAR
SRI.ANEISH RAVINDRA
SRI.ARUN KRISHNA DHAN
SRI.JOSEPH GEORGE(MULLAKKARIYIL)
SRI.K.RATHISH KUMAR
RESPONDENTS:
-----------------------
1. P.SRINIVASA RAGHAVAN,S/O.K.PARTHASARATHI,
207, T.V.SWAMY ROAD, R.S.PURAM
COMBATORE, 641002.
2. K.N.S.TRADERS, WHOLESALE SUGAR DEALERS,
D.NO.31/494, BIG BAR, PALAKKAD - 678007.
3. K.S.GOPINATHAN,S/O.K.S.SANKARAN,
MOOTHANTHARA, KOPPAM, PALAKKAD-678007.
4. K.S.SHANMUGHAN S/O.K.S.SANKARAN,
MOOTHANTHARA, KPPPAM, PALAKKAD - 678007.
5. K.S.SACHITANANDAN, S/O. K.N.SANKARAN,
MOOTHANTHARA, KOPPAM, PALAKKAD - 678007.
R1 BY ADVS. SRI.O.RAMACHANDRAN NAMBIAR
SRI.GEEN T.MATHEW
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24-03-2014,
ALONG WITH OPC. 827/2011, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
BP
OP(C).No. 639 of 2011 (O)
APPENDIX
PETITIONER'S EXHIBITS :
P1: COPY OF THE NOTICE OF ATTACHMENT DT 28/3/2007.
P2: COPY OF THE ENCMBRANCE CERTIFICATE DT 25/8/2008.
P3: COPY OF THE DECREE DT 25/10/2008 IN O.S. NO.126/2007 OF THE SUB
COURT, PALAKKAD.
P4: COPY OF THE COMPROMISE DECREE DT 19/12/2005 IN
O.S. NO. 98/2004.
P5: COPY OF THE ENCUMBRANCE CERTIFICATE DT 10/7/2007.
P6: COPY OF THE ORDER DT 29/10/2010 IN E.A.1038/.2008, BEFORE THE
SUB COURT, PALAKKAD.
RESPONDENT'S EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
BP
C.R.
K.HARILAL, J.
= = = = = = = = = = =
O.P.(C).Nos.639 & 827 of 2011
= = = = = = = = = = = = = = = = =
Dated this the 24th day of March, 2014
J U D G M E N T
These Original Petitions (Civil) are filed challenging the common order passed in EA Nos. 1038/2008, 1039/2008, 1040 of 2008 and 1041 of 2008 in Execution Petition No.189 of 2006 in O.S.No.98 of 2004 on the files of Court of Subordinate Judge Palakkad. OP(C) 639 of 2011 was filed challenging the EA Nos. 1038 and 1039 of 2008 and OP(C) No. 827 of 2011 was filed challenging EA Nos. 1040 and 1041 of 2008. EA No.1039 of 2008 and 1041 of 2008 are filed under Section 47 of Code of Civil Procedure (for short the 'CPC'). EA No.1038 of 2008 and EA No.1040 of 2008 were filed for keeping the conformation in abeyance till the disposal of EA No: 1039 and EA No. 1041 of 2008 respectively. The applicant in EA Nos.1038 of 2008 and EA No.1039 of 2008 is the plaintiff in O.S 126 of 2007 on the O.P.(C).Nos.639 & 827 of 2011 2 files of Sub Court, Palakkad. Similarly, applicant in EA Nos.1040 of 2008 and 1041 of 2008 is the plaintiff in O.S. No.125 of 2007. They are not parties to the above suit or Execution Petition.
2. The Original Suit No: 98 of 2004 was filed by the 1st respondent against respondents 2 to 5 for realisation of Rs.4,80,556/- with interest and attachment before the judgment was ordered. The suit was decreed in terms of compromise on 19.12.2005 and the 1st respondent field the above Execution Petition to execute the decree. The petition schedule properties were sold in auction on 17/07/2008 for Rs.6,50,000/-. The decree holder himself purchased the Petition schedule properties in execution of sale.
3. While so, the petitioners, who are the Plaintiffs in O.S.No. 126 of 2007 and O.S.No.125 of 2007 have filed IA No. 880 of 2007 and I.A.No.889 of 2007 respectively to attach the petition schedule property before judgment. Both the applications were allowed and the petition schedule properties were attached before judgment on 29/03/2007. When they came to know the proceedings in O.P.(C).Nos.639 & 827 of 2011 3 Execution Petition No.189 of 2006 in O.S.No. 98 of 2004, they filed the above applications alleging that there had been no proper or adequate publication of notice regarding the sale conducted on 17/07/2008. According to them, the notice of sale was not affixed in the premises or other offices concerned. Had there been proper publication, more persons would have turned up for bidding the property in auction. In the absence of bidders, the plaint schedule properties were sold in auction for a paltry sum of Rs.6,50,000/- only. The petition schedule properties are two shop rooms situated at Big Bazar in Palakkad. One cent of property would fetch 10 to 13 lakhs at the locality, where the petition schedule properties are located. Hence, in both petitions, the petitioners prayed for setting aside the sale.
4. The decree holder/1st respondent filed objection contending that the petitioners had no locus standi to file such a petition invoking jurisdiction under Sec. 47 of the Code of Civil Procedure. The petition schedule properties were charged with the decree debt. The 1st respondent had O.P.(C).Nos.639 & 827 of 2011 4 obtained permission of the court to bid the properties in auction and the same was conducted in accordance with law and procedure thereunder. Now, the execution petition is posted for confirmation of sale. The petitioners are strangers to the proceedings and they have no interest over the petition schedule properties. There is no proper or sufficient reason to set aside the sale. Hence, they prayed for dismissal of all the four applications filed by the petitioners.
5. After considering the rival contentions, the execution court dismissed all the applications filed by the petitioners, mainly on the point that, the petitioners have no locus standi to file such a petition under Sec. 47 of the CPC, particularly, when they had filed a petition to set aside the sale invoking jurisdiction under Order XXI R. 90 and thereafter they themselves withdrew the said application as not pressed. The legality, propriety and correctness of the said order is under challenge in these original petitions.
6. The learned counsel for the petitioners advanced arguments challenging the findings in the impugned order. O.P.(C).Nos.639 & 827 of 2011 5 The learned counsel drew my attention to Sec.47 of the CPC and submits that the petitioners have locus standi to file such a petition under Sec. 47 of the CPC. The learned counsel further submits that the auction was vitiated by procedural irregularity and the property worth more than 10 to 13 lakhs had been sold in auction for a paltry amount of Rs.6,50,000/-. The petitioners are ready to purchase the said property for higher amount. In fact, the attachment before the judgment was ordered in the respective suits filed by the petitioners before the sale in E.P.No.189 of 2006 in O.S.No.98 of 2004. Therefore, the attachment before the judgment creates an interest over the petition schedule property.
7. Per contra, the learned Counsel for the 1st Respondent advanced arguments to justify the order under challenge. To sum up, according to him, the petitioners have no right to file the applications invoking jurisdiction under Section 47 of the CPC.
8. Heard both sides. The question to be considered is whether the petitioners have any locus standi to file the O.P.(C).Nos.639 & 827 of 2011 6 above petition invoking jurisdiction under Sec. 47 of the CPC. Put it generally, whether a stranger to the suit, in which the decree was passed, has the right to invoke jurisdiction under Sec.47 of the CPC, before the execution court?
9. The question in controversy falls under Sec.47 of CPC, which reads as follows:-
47. Questions to be determined by the Court executing decree - (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit".
The scope and extent of the determination of questions under Section 47, are confined as hereunder.
i) All questions arising between the parties or their representatives alone can be considered under Sec. 47; and
ii) Such questions must have been related to the execution, discharge or satisfaction of the decree. O.P.(C).Nos.639 & 827 of 2011 7
10. Therefore, for invoking jurisdiction under Sec. 47 of the CPC before the execution Court, the above said statutory requisites are to be satisfied. It is pertinent to note that the above requisites are conjunctive and unless the aforesaid statutory requisites under Sec. 47 are satisfied, the execution court cannot exercise jurisdiction under Sec.47 of the CPC. To sum up, this jurisdiction under Section 47 of CPC is not amenable to the strangers to the suit.
11. Here, apparently, the petitioners are not parties to the suit or their representatives. They are admittedly strangers to the suit. It follows that the petitioners have no locus standi to file the above applications before the execution court invoking jurisdiction under Sec. 47 of the CPC. Secondly, the petitioners' remedy lies under order XXI Rule 90 of the CPC, if their interests are affected by irregularities in the sale. According to Order XXI R.90 of the CPC, where any immovable property has been sold in execution of a decree, the decree holder, or the purchaser, or any other person entitled to share in a rateable O.P.(C).Nos.639 & 827 of 2011 8 distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. In short, any person whose interests are affected by the sale has the right to invoke Jurisdiction under Order XXI Rule 90 of CPC. Certainly, the petitioners had the right to file an application to set aside the sale, invoking jurisdiction under Order XXI R.90 of the CPC and they had already availed of that opportunity. But, they themselves withdrew the application as not pressed.
12. Therefore, I find that there is no illegality or impropriety in the impugned order under challenge. The court below has considered the law applicable to the instance case in its correct perspective.
Hence, both petitions are dismissed accordingly.
K.HARILAL, JUDGE.
Mjl/stu //True copy// P.A to Judge