Kerala High Court
Rajamma vs Rajani on 17 February, 2020
Author: C.S.Dias
Bench: K.Harilal, C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941
OP (FC).No.136 OF 2019
AGAINST THE ORDER IN EP NO.7 OF 2014 IN OP 1192/2008 OF FAMILY
COURT, MAVELIKKARA
PETITIONER/S:
RAJAMMA, AGED 66 YEARS
W/O. JANARDHANAN, RESIDING AT ASANTE PADEETTATHIL,
ILIPPAKUAM MURI, ILIPPAKUAM P.O, VALLIKUNNAM VILLAGE,
MAVELIKKARA TALUK,
ALAPPUZHA DISTRICT-690509.
BY ADVS.
SRI.R.RAJASEKHARAN PILLAI
SMT.SABINA JAYAN
RESPONDENT/S:
1 RAJANI, AGED 32 YEARS
D/O. MANIYAMMA, RESIDING AT PUTHEN VEETTIL, NJAKKANAL
MURI, KRISHNAPURAM VILLAGE, NJAKKANAL P.O, ALAPPUZHA
DISTRICT-690533.
* ADDL. MANUAL VM
R2 AGED 41,S/O.MICHELE,
RESIDING AT VALAYILKULAM VEEDU,ASRAMAM WARD,
ARYANADU THEKKE MURI, ARYANADU THEKKE VILLAGE,
AMBALAPUZHA,ALAPPUZHA DISTRICT 688561
(*IS IMPLEADED AS ADDITIONAL R2 VIDE ORDER DATED
4/4/2019 IN IA.NO.1/2019 IN OP(FC) 136/2019)
R1 BY ADV. SMT.BINDU SUKUMARAN
R2 BY ADV. SMT.AJITHALAKSHMI SABU
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
17.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC).No.136 OF 2019 ..2..
JUDGMENT
Dated this the 17th day of February 2020 C.S.Dias,J.
This original petition is filed to set aside the sale conducted in E.P.No.7/2014 in O.P.No.1192/2008 on the file of the Family Court, Mavelikara.
2. The petitioner, is the mother-in-law of the 1st respondent in the original petition.
3. The 1st respondent had filed O.P.No. 1192/2008 before the Family Court, seeking a decree for realisation of gold ornaments and money. The original petition was decreed ex- parte. The 1st respondent filed E.P.No.7/2014 to realise the decree amount. When the property, belonging to the husband of the 1 st OP (FC).No.136 OF 2019 ..3..
respondent, son of the petitioner, was put to sale, the petitioner approached this Court and filed OP(FC)No.496/2017 to set aside the sale that was proposed in E.P.No.7/2014. This Court, by its interim order dated 29.08.2017 admitted the original petition and stayed the sale on condition that the petitioner pays an amount of Rs.1,00,000/- within a period of three weeks from 29.08.2017.
4. Subsequent to Ext.P1 order, the petitioner and the 1st respondent entered into Ext.P3 agreement, whereby the petitioner agreed to pay off the balance decree amount of Rs.3,50,000/- in two installments ie, on or before 07.12.2017 and 07.01.2018.
OP (FC).No.136 OF 2019 ..4..
5. When OP(FC) No.496/2107 came up for hearing on 11.01.2018, the petitioner sought permission to withdraw the above original petition. This Court by judgment dated 11.01.2018 dismissed the original petition as withdrawn.
6. However, the petitioner failed to adhere to Ext.P3 compromise. Accordingly, the 1st respondent proceeded with the execution proceedings. The property that was put to sale in E.P.No.7/2014, was sold in execution on 09.04.2018. The 2nd respondent in this original petition, purchased the property as evidenced by Ext.R2(b) proceedings dated 09.04.2018.
7. The petitioner has on 28.02.2019 filed this present original petition, under Article 227 of the Constitution of India, OP (FC).No.136 OF 2019 ..5..
seeking to set aside the sale that was conducted as per Ext.R2(b) proceedings.
8. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
9. The learned counsel for the petitioner argued that as per Order XXI Rule 89 of Code of Civil Procedure (in short 'Code'), the petitioner has a legal right to pay the sum equal to 5% of the purchase money and get the sale set aside. According to him, as on the date of filing the application, there was no proceeding pending before the Family Court. The petitioner had after the parties arrived at Ext.P3 compromise, filed Ext.P4 application to set aside the sale. However, the Family Court without considering the above application, OP (FC).No.136 OF 2019 ..6..
proceeded with the sale.
10. The learned counsel for the auction purchaser-the 2nd respondent argued that the application to set aside has to be filed within 60 days from the date of sale. Admittedly, the petitioner has not filed the application within the prescribed time period. Moreover, the 2nd respondent had deposited an amount of Rs.4,60,000/- towards the sale consideration, and the same was withdrawn by the 1st respondent, towards full satisfaction of the decree amount. Now, at this distance of time, it would be travesty of justice; to set aside the sale especially after the application has become time- barred. The counsel for the 1st respondent-
decree holder submitted that the 1st
respondent had received the entire decree
OP (FC).No.136 OF 2019 ..7..
amount in the sale conducted, and the
execution proceeding was closed.
11. This Court by Ext.P1 order granted the petitioner an opportunity to pay off the decree debt, and subsequently, the parties arrived at in Ext.P3 settlement, wherein the petitioner agreed to pay the balance amount due under the decree in two instalments on or before 07.12.2017 and 07.01.2018, but she failed to avail the benefit and pay the amount within the stipulated time. The earlier original petition was dismissed as withdrawn. As the petitioner failed to comply with her undertaking, the Family Court proceeded with the sale and the property was purchased by the 2nd respondent. The execution proceedings has culminated, and the 2nd respondent became the owner of OP (FC).No.136 OF 2019 ..8..
the said property.
12. Undisputedly, the petitioner or her son have not filed any application to set aside the sale within the prescribed period of 60 days from 09.04.2018 as contemplated under Article 127 of the Limitation Act, 1963. It is nearly after a year that this original petition is filed, without resorting to the statutory remedies, that too after the an auction purchaser has purchased the property and the sale proceeds were received by the decree holder. The petitioner has not complied with the mandate under Order XXI Rule 89 of the Code. It would cause severe prejudice and hardship to the respondents if sale is set aside at this belated stage, that too without the petitioner resorting to the statutory OP (FC).No.136 OF 2019 ..9..
remedies under the Code. We do not find any circumstances warranting invocation of the supervisory jurisdiction under Article 227 of the Constitution of India to interfere with the execution proceedings in E.P.No.7/2014 in O.P.No.1192/2008 of the Family Court, Mavelikara.
The original petition is devoid of any merit and is hence dismissed.
Sd/-
K.HARILAL JUDGE Sd/-
C.S.DIAS SB/18/02/2020 JUDGE OP (FC).No.136 OF 2019 ..10..
APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER DATED 29.08.2017 IN OPFC NO.496/2017 OF THIS HON'BLE COURT.
EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 11.9.2017.
EXHIBIT P3 TRUE COPY OF THE TERMS OF SETTLEMENT SUBMITTED BEFORE THIS HON'BLE COURT. EXHIBIT P4 TRUE COPY OF THE PETITION TO SET ASIDE THE DISMISSAL FOR DEFAULT SUBMITTED BY THE RESPONDENT BEFORE THE FAMILY COURT, MAVELIKARA. RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 A TRUE COPY OF THE SALE PROCLAMATION EXHIBIT R1 B TRUE COPY OF THE SALE DEED DATED 14.1.2002 EXHIBIT R1(C) COPY OF THE JUDGMENT IN OP(FC)496/2017 DATED 11.01.2018 EXHIBIT R1(D) CERTIFIED COPY OF THE E.A.110/2018 DATED 31.7.2018 FOR SET ASIDE THE SALE EXHIBIT R2(B) COPY OF THE SALE PROCLAMATION EXHIBIT R2 B TRUE COPY OF THE KYCHIT // TRUE COPY // P.A TO JUDGE