Research › Search › Judgment

Kerala High Court · body

2018 DIGILAW 978 (KER)

V. P. Selvan v. Rani Denson

2018-11-29

SATHISH NINAN

body2018
JUDGMENT : A suit for money was decreed ex parte. In execution of the decree, immovable property belonging to the judgment debtor was sold. E.A.239/15 was filed by the decree holder for getting delivery of the property. The application was allowed, against which the judgment debtor has come up in O.P.(C).No.1442/18. 2. Pending the execution proceedings and after the sale, on the application of the judgment debtor, the ex parte decree was set aside on condoning the delay of 1275 days. The said order is under challenge in O.P.(C) No.1181/17. 3. As noticed above, the ex parte decree is sought to be set aside on condoning the delay of 1275 days in applying for the same. The reason stated by the defendant was that the counsel who was appearing for him passed away and further that the defendant was suffering from heart ailments. 4. The defendant got himself examined as PW1. The medical records were marked as Exts.A1 to A3. The factum of death of the counsel who was appearing for the defendant was not disputed by the plaintiff, on considering the evidence adduced, the trial court was inclined to accept the explanation offered by the defendant for the delay and his nonappearance. The trial court chose to exercise its discretion and has condoned the delay and set aside the ex parte decree on payment of costs of Rs.10,000/-. I do not find any error of the jurisdiction warranting interference under Article 227 of the Constitution. The order impugned in O.P.(C) No.1181/17 is only liable to be affirmed. 5. In O.P.(C) No.1442/18, the challenge is against an order directing delivery of the property sold in execution of the ex parte decree, once the ex parte decree stands set aside, what is its effect on the sale held in execution of the ex parte decree? S.144 of C.P.C. provides for restitution. However, law is settled that in case the auction purchaser is a third party, then his rights will be protected. However, he must be a bona fide purchaser, If the third party auction purchaser had knowledge of the proceedings whereunder the very decree that is put in execution is under challenge, he cannot be said to have acted bona fide. He purchased the property knowing well of the risk involved and is evidently a speculative purchaser. Therefore, he does not get the protection when the decree is set aside. He purchased the property knowing well of the risk involved and is evidently a speculative purchaser. Therefore, he does not get the protection when the decree is set aside. S.144 applies as against him also. So also, if the third party purchaser is a name-lender of the decree holder, he will not be protected. (See Janatha Textiles & Ors. v. Tax Recovery Officer & Anr. (JT 2008 (6) SC 653), and Chinnamal & Ors. v. P.Arumugham & Anr. ( AIR 1990 SC 1828 ). 6. The judgment debtor has filed E.A.126/18 seeking to set aside the order of delivery dated 28.05.18 in E.A.239/15. It is to be noticed that the order was passed in the absence of the judgment debtor since there was no representation for him. In view of the legal position noticed above regarding restitution, and in view of the fact that in the affidavit filed in support of E.A.126/18 seeking to set aside the order for delivery, the judgment debtor relies on setting aside of the ex parte decree, and in view of the fact that the order setting aside the ex parte is being affirmed by this court in this judgment, it is only appropriate that the judgment debtor be given an opportunity to file his objections to E.A.239/15. 7. In the result, the order dated 28.05.18 in E.A.239/15 will stand set aside. The judgment debtor shall be given opportunity to file his objections to the application. The E.A. shall be disposed of afresh after giving adequate opportunity to either sides to substantiate their contentions. I make it clear that nothing has been expressed on the merits of the rival contentions. Accordingly, O.P.(C) No.1442/18 will stand allowed as above and G.P.(C) 1181/17 will stand dismissed.