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2024 DIGILAW 1552 (KER)

Lukose v. A. R. Girikumaran Nair ( Died)

2024-11-26

VIJU ABRAHAM

body2024
JUDGMENT : VIJU ABRAHAM, J. The above original petition is filed seeking to set aside Ext.P2 order dated 06.02.2024 passed by the First Additional Sub Court, Thiruvananthapuram in EA No.84/2024 in EP No.465/2022 in OS No.107/2002. The petitioner also sought for stay of all further proceedings of Ext.P3 auction sale report dated 06.02.2024 on the file of the First Additional Sub Court, Thiruvananthapuram in EP No.465/2022 is OS No.107/2002. 2. The brief facts necessary for the disposal of the original petition are as follows: The petitioner is the judgment debtor in EP No.465/2022 in OS No.107/2002 on the file of the First Additional Sub Court, Thiruvananthapuram, which was filed by the decree holders/plaintiffs for execution of a decree dated 29.03.2021 for recovery of money passed in that suit. The respondents/decree holders had sought sale of the suit property by public auction in EP No.465/ 2022. Accordingly, a sale proclamation was published and the auction sale was fixed to be held on 06.02.2024. It is contended that on 06.02.2024, there was no sitting of the First Additional Sub Court, Thiruvananthapuram. On 06.02.2024, the decree holders filed Ext.P1 as EA No.84/2024 in EP No.465/2022 for permission to bid the property in auction under Order 21 Rule 72 CPC. It is the specific contention of the petitioner that, no copy of Ext.P1(EA No.84/2024) was served on the petitioner/judgment debtor. It is further contended that Ext.P1 (EA No.84/2024) was not called in court on 06.02.2024, since there was no sitting of the court on that day. It is the case of the petitioner that on 06.02.2024, when there was no sitting of the court, without affording an opportunity to the judgment debtor and without calling up the EA No.84/ 2024 before the Bench, the First Additional Sub Court has passed Ext.P2 order allowing EA No.84/2024, whereby granted permission as sought for. Accordingly the 1st respondent bid in auction the property put to sale for Rs.10,00,100/- as is evident from Ext.P3 auction sale proceedings dated 06.02.2024. The petitioner would contend that the property worth Rs.30,00,000/- was sold to the decree holder for an amount of Rs.10,00,100/- and the petitioner has suffered heavy financial loss in this regard. It is aggrieved by the said proceedings that the present original petition is filed. 3. The petitioner would contend that the property worth Rs.30,00,000/- was sold to the decree holder for an amount of Rs.10,00,100/- and the petitioner has suffered heavy financial loss in this regard. It is aggrieved by the said proceedings that the present original petition is filed. 3. The learned counsel for the petitioner submits that the procedure now undertaken by the court is in clear violation of Rule 41, Rule 33 and Rule 333 of the Civil Rules of Practice, Kerala. 4. The learned counsel for the respondents 2 and 4 opposed the request of the petitioner and contended that the decree holders were permitted to participate in the auction and as there was no other bidders, the property was auctioned in the name of the decree holder. 5. When the matter came up for consideration on 19.03.2024, this Court has passed an interim order that, if the possession of the scheduled property pursuant to the auction sale has not been handed over to the respondents, the same shall be kept in abeyance and the said interim order was extended further. This Court on 11.06.2024 further sought for a report from the District Judge, Thiruvananthapuram to report whether the Additional Sub Judge, Thiruvananthapuram was holding a sitting on 06.02.2024, the date on which the order in E.A.No.84 of 2024 in E.P.No.465 of 2022 in O.S.No.107 of 2002 was passed. A report has been submitted by the District Judge, Thiruvananthapuram dated 14.06.2024 after verifying the details pertaining to the execution petition filed as EP No.465 of 2022 on the file of the Additional Sub Court-I, Thiruvananthapuram, wherein it is reported that at the relevant time, the Additional Sub Judge, Thiruvanathapuram was holding the full additional charge of the Sub Court, Nedumangad and he was conducting sitting in the Sub Court, Nedumangad also. On 06.02.2024, he held sitting in the Sub Court, Nedumangad and a perusal of B-Diary in EP No.465 of 2022 it is noticed that on 20.12.2023 the Additional Sub Court-I, Thiruvanathapuram passed an order to publish proclamation of sale as per Rules and to conduct sale at 2.30 pm on 06.02.2024 and on 06.02.2024, the date on which the property was ordered to be put in auction, the decree holders filed an application as EA No.84/2024, and the same was allowed on the same day. 6. 6. To have a clarity regarding the proceedings that was initiated on 06.02.2024, this Court by order dated 04.11.2024 called for a further report from the court concerned to report whether there was a notification published by the Additional Sub Court-I, Thiruvanathapuram regarding the consideration of the case-EP No.465/2022 at Sub court, Nedumangad on 06.02.2024 and as to whether a copy of E.A.No.84/2024 in EP No.465/2022 in O.S.No.107 of 2002 was served on the counsel appearing for the petitioner/judgment debtor in compliance with Rule 41 of the Civil Rules of Practice. A report has been submitted by the First Additional Sub Judge, Thiruvananthapuram dated 14.11.2024, reporting that there are no records to see that the case was considered at Sub Court, Nedumangadu on 06.02.2024 and hence there was no notification that the case would be considered at Sub Court, Nedumangadu on 06.02.2024. But it is seen that EA No.84/2024 filed by the first decree holder has been allowed on 06.02.2024. It is further reported that copy of EA No.84/2024 is not seen served to the counsel for the judgment debtor as per the records of EA No.84/2024. 7. From the two reports submitted, it is clear that the Additional Sub judge I, Thiruvananthapuram was holding sitting at Sub Court, Nedumangad on 06.02.2024. A notification intimating the parties/Counsel to the effect that EP No.465/2022 would be called before the Sub Court, Nedumangad appears to have been not published. It is also clear that a copy of EA No.84/2024 was not served on the counsel appearing for the judgment debtor as per the records of the Additional Sub Judge, Thiruvananthapuram. On the strength of the above facts and circumstances, let me consider whether Ext.P2, the order impugned herein, was passed in accordance with law. 8. As per the report of the court, no copy of EA No.84/2024 was served on the judgment debtor or his counsel. Rule 41 of the Civil Rules of Practice, Kerala reads as follows: “41" Notice.- Unless the court otherwise orders, notice of an interlocutory application shall be given to the other parties in the suit or matter or to their pleaders, not less than three days before the day appointed for the hearing of the application. Rule 41 of the Civil Rules of Practice, Kerala reads as follows: “41" Notice.- Unless the court otherwise orders, notice of an interlocutory application shall be given to the other parties in the suit or matter or to their pleaders, not less than three days before the day appointed for the hearing of the application. " Rule 41 mandates that notice of an interlocutory application shall be given to the other parties or to their pleaders, not less than three days before the day appointed for the hearing of the application. Here is a case where the case was posted to 06.04.2024 for sale of the property and admittedly EA No.84/2024 was filed only on 06.02.2024 and the application was allowed on the day itself. This Court in Shajul Hameed v. Mohammed Habibullah [1996 (2) KLT SN 34(C No.36)] has held that going by Rule 41 of the Civil Rules of Practice, when an interlocutory application is filed, three days time should be given for hearing and that the same is fundamental to fair procedure that both sides should be heard before passing an order and a reasonable opportunity to file objection should also be given to the opposite side. 9. Rule 333 of the Civil Rules of Practice, Kerala, which comes under Chapter VIII dealing with proceedings in execution, reads as follows: “333.Notice to judgment debtor.- If the application is in accordance with the code and these rules, the court shall order notice of the application to the judgment debtor and other parties interested and fix a day for the hearing of the application." Rule 333 mandates that the court shall order notice of the application to the judgment debtor and other parties interested and fix a day for the hearing of the application. In the present case, going by the reports submitted by the court, the petition was filed on 06.02.2024 and heard and disposed of on the very same day, that too without even issuing a copy of the petition on the judgment debtor/petitioner. So the procedure adopted by the court is in clear violation of Rules 41 and 333 of Civil Rules of Practice, Kerala. 10. So the procedure adopted by the court is in clear violation of Rules 41 and 333 of Civil Rules of Practice, Kerala. 10. Yet another contention raised by the learned counsel for the petitioner is based on Rule 33(1) of the Civil Rules of Practice, which reads as follows: "33(1)Posting of cases.- (1) The posting of cases shall be to definite dates and shall be made in open Court. Unless the judge otherwise orders, every case shall be called on the date and in its order on the file of the Court.” Going by Rule 33(1), posting of cases shall be to definite dates and shall be made in open Court. Unless the judge otherwise orders, every case shall be called on the date and in its order on the file of the Court. In the present case, going by the report, though the sitting of Sub Court I, Thiruvanathapuram was held in Sub Court, Nedumangad, there is no report or evidence to show that there is notification regarding EP No.465/2022 being called before the said court. 11. In view of the above facts and circumstances, I am of the definite view that order impugned herein is liable to be set aside. Accordingly, Ext.P2 order dated 06.02.2024 in EA No.84/2024 in EP No.465/2022 in OS No.107/2002 is set aside and the consequential sale in favour of the decree holder as evident from Ext.P3 auction sale report dated 06.02.2024 is also set aside. There will be a consequential direction the Addl. Sub Court-I, Thiruvananthapuram to rehear EA No.84/2024 in EP No.465/2022 in OS No.107/2002, after giving sufficient opportunity to the petitioner to file his objection and after giving an opportunity of being heard to the parties. The execution court shall take all the earnest steps to expedite the disposal of the said petition. With the above said direction the original petition is disposed of.