Kerala High Court
Erakkal Chinnam vs Karuvadan Muhammed'S Children Hamza on 25 September, 2007
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 673 of 2005()
1. ERAKKAL CHINNAM, S/O.CHAKKU,
... Petitioner
Vs
1. KARUVADAN MUHAMMED'S CHILDREN HAMZA,
... Respondent
2. SISTER PATHUMMA, VALANKARA,
3. SISTER SHAILABI, BHOOMIKUTH,
4. SISTER SUNITHA, IN DO.DO.
5. MARUKARA NABEESA, FIRST WIFE OF
6. CHEERAMTHODIKA UMMAYYA, SECOND WIFE OF
7. PARAKKAL AMINA, THIRD WIFE OF
8. SOUTH MALABAR GRAMIN BANK,
9. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent :SRI.T.R.RAVI
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :25/09/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 673 OF 2005
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DATED THIS THE 25th DAY OF SEPTEMBER, 2007
JUDGMENT
Third defendant in O.S.359 of 1996 on the file of Munsiff Court, Manjeri is the appellant. Respondents 1 to 7 are the plaintiffs and other respondents, the other defendants in the suit. Plaint schedule property admittedly originally belonged to Karuvadan Muhammed. Respondents 1 to 4 are the children and respondents 5 to 7 are his three widows. Muhammed had availed a loan from the South Malabar Gramin Bank by depositing title deeds and creating an equitable mortgage. As that amount was not paid, revenue recovery proceedings were initiated. On the failure to pay the amount, in spite of notice, property was put up for sale on 31.1.1987. It was purchased by the appellant. Sale was confirmed on 15.5.1993. But before confirmation of sale on the ground that notice was not served on all the legal heirs of Muhammed, Assistant Collector set aside sale on 1.4.1989 for irregularity in the sale and directed resale of the property. On 31.7.1989, respondents 1 to 7 received a notice demanding the amount due and intimating that on failure the property will be sold. By that time the amount due from Muhammed under the RSA 673/2005 2 loan transaction was written off by the bank under A.R.D.R scheme and the tile deeds deposited by Muhammed was returned to his legal heirs. Finding that still the sale was confirmed on 3.9.1993, respondents instituted the suit seeking a decree to set aside the sale certificate issued to the appellant pursuant to the auction sale conducted on 31.1.1987 and confirmed on 15.5.1993, contending that sale and sale certificate are null and void and respondents have no right over the property. 8th respondent, who was the first defendant Bank filed a written statement admitting that though revenue recovery proceedings were initiated against Muhammed for realisation of the amount, subsequently the transaction was closed under A.R.D.R scheme and the title deeds deposited by Muhammed were returned and no amount is due from the legal heirs to the bank. 9th respondent, who was the second defendant State, through the District Collector, filed three written statements.
2. In the first written statement, it was contended that revenue sale was conducted on 31.1.1987 and the property was purchased by appellant for Rs.6455/- and the auction purchaser appellant remitted the bid amount and submitted proposal for confirmation of sale and no petition to set aside the sale as RSA 673/2005 3 provided under Section 52 of Kerala Revenue Recovery Act was filed and meanwhile on 1.4.1987, Assistant Collector, Perinthalmanna set aside sale due to material irregularities and directed resale and consequently fresh demand notice was issued under Section 34 of Revenue Recovery Act and notice was served on respondents 1 to 7 to remit the amount on or before 31.7.1989 and they did not remit the amount and meanwhile the auction purchaser appellant remitted the amount as per challan dated 4.3.1987 and Sub Collector, Perinthalmanna confirmed the sale on 15.5.1993 and sale certificate was issued thereafter and as sale certificate was issued after confirmation of sale, appellant entered the property and thereafter respondents 1 to 7 are not entitled to the decree sought for. Subsequently another written statement was filed stating that after sale was set aside by Assistant Collector on 1.4.1987, resale was ordered and while proceedings was pending, appellant filed a statement before Tahsildar stating that legal heirs of Muhammed handed over possession of the property to the appellant and therefore there is no necessity to sell the property once again and it is consequent to that report, sale conducted on 31.1.1987, was confirmed on 15.5.1993 and sale certificate was issued. In the written RSA 673/2005 4 statement it was also stated that finding the irregularities, Sub Collector, Perinthalmanna initiated steps to take action against officers responsible for confirmation of sale and issuing sale certificate and it was pursuant to the order dated 15.5.1993 confirming the sale, property was handed over to the appellant on 3.9.1993 and these relevant materials were brought to the notice of the court.
3. Learned Munsiff, on the evidence of PW1, DW1, Exts.A1 to A5, Exts.B1 to B7 and Exts.X1 and X2 found that though the property was sold on 31.1.1987, on 1.4.1987 the sale was set aside and a resale was ordered and therefore the sale could not have been confirmed on 15.5.1993 and a sale certificate could not have been issued and therefore set aside the sale certificate issued on 3.9.1993 and restrained appellant from trespassing into the plaint schedule property. Appellant challenged the decree and judgment before District Court, Manjeri in A.S.107 of 2003. Learned District Judge, on reappreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal.
4. Learned senior counsel appearing for the appellant was heard. The argument of learned counsel is that when a sale RSA 673/2005 5 was conducted on 31.1.1987 and appellant purchased the property in that auction sale and remitted the entire bid amount, sale cannot be cancelled without notice to the appellant and there is no material to prove that notice was issued to the appellant and therefore cancellation of the sale is illegal and confirmation of sale and sale certificate issued to appellant is legal and sustainable and therefore plaintiffs are not entitled to claim any relief in the suit. Learned senior counsel also argued that there is no evidence to prove that notice was served on the appellant before setting aside the sale and in such circumstances the decree granted in favour of respondents 1 to 7 is to be set aside.
5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. What is claimed by the appellant is that he purchased the property, admittedly belonging to Muhammed, who availed a loan from first defendant Bank pursuant to the revenue recovery proceedings initiated for non payment of the amount due. It is not disputed that the property was put up for sale and was purchased by appellant in the auction sale on 31.1.1987. On the evidence on record, courts below found that immediately after RSA 673/2005 6 the sale, on 1.4.1987, sale was set aside by Assistant Collector for material irregularities. It is also brought out from the records that the Assistant Collector directed resale of the property and fresh notice under Section 34 of the Kerala Revenue Recovery Act was issued directing the legal heirs of deceased Muhammed to pay the amount before 17.7.1989. It was thereafter on 15.5.1993, sale was confirmed and sale certificate was issued. As rightly found by courts below, when the sale conducted on 31.1.1987 was set aside by Assistant Collector on 1.4.1987 and resale was ordered, the very same sale which was set aside on 1.4.1987 could not have been confirmed on 15.5.1993 or a sale certificate issued pursuant to the confirmation of sale.
6. The argument of learned counsel is that the sale could not be set aside without issuing notice to the auction purchaser. The question is whether a notice is mandatory. Similar question was considered by a learned Single Judge of this court in Captain V. District Collector (1996(2) KLT 898). Section 53 of the Revenue Recovery Act provides for application to set aside sale on the ground of material irregularity and mistake. Under Section 53, an application is to be filed within a period of 30 days RSA 673/2005 7 from the date of sale of immovable property to set aside sale. The question considered by the learned Single Judge was whether for the failure to file an application as provided under Section 53, there would be an automatic confirmation of sale. Relying on the decision of this court in LICA (P) Ltd V. Official Liquidator (No.1), (1996) 85 C.C.788) it was held that there is no automatic confirmation of sale under Section 54 of Revenue Recovery Act and unless the Collector makes an order confirming sale there is no automatic confirmation of sale, after expiry of 30 days. The question whether a notice is necessary to the auction purchaser before setting aside the sale in such a case was also considered by the learned Single Judge. It was held that there is no necessity to give any notice to the auction purchaser to show cause why a reauction shall not be conducted as the auction was not confirmed. That exactly is the position here. In such circumstances, appellant is not entitled to contend that without notice to him the sale conducted on 31.1.1987 could not have been set aside.
7. Moreover, it is clear from the evidence that the sale certificate issued to the appellant was pursuant to a sale conducted on 31.1.1987. When that sale was set aside on RSA 673/2005 8 1.4.1987, and resale was ordered and appellant filed a statement before the Tahsildar stating that he had already obtained possession of the property from the legal heirs of Muhammed and therefore there need not be resale. In such circumstances appellant is not entitled to contend that he has no nitce of setting aside the sale. Moreover as found by courts below even at the time of evidence, appellant had no case that he did not receive notice before setting aside the sale. In such circumstances, no substantial question of law is involved in the appeal.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE lgk/-