IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

MONDAY, THE 10TH DAY OF DECEMBER 2012/19TH AGRAHAYANA 1934

CRP.No. 957 of 2006 (D)

AGAINST THE JUDGMENT DATED 16-11-2005 PASSED IN FAO.80/2003 OF DISTRICT

COURT,KOLLAM WHICH ARISES FROM THE ORDER DATED 28-3-2003 IN E.A.NO.314
OF 2002 IN E.P.NO.41 OF 2001 IN OS.1077/1999 of MUNSIFF'S COURT, KOLLAM

REVISION PETITIONER(S)/APPELLANT/PETITIONER
GANESH PILLAI, AGED 38, S/O.SANTHAPPAN PILLAI, MOOLAYIL VEEDU, BEACH
NORTH, KOLLAM.
BY ADV. SRI.P.N.RAMAKRISHNAN NAIR.

RESPONDENT(S)/RESPONDENTS/RESPONDENTS
1. SUDEVAN, AGED ABOUT 37, FATHER'S NAME NOT KNOWN,
THEKKEPANDARAZHIKATH, MUNDAKKAL, KOLLAM.
2. KANNAN, AGED ABOUT 37, S/O.RAMAKRISHNAN ASARI, KAVYA BEAUTY PARLOUR
THEVALLY, KOLLAM.
3. P.G.SALIMKUMAR, AGED ABOUT 50, S/O.GOVINDAN, GOPIMANDIRAM,
UDAYAMARTHANDAPURAM CHERRY, MUNDAKKAL, EAST VILLAGE, KOLLAM.

R1 BY ADVS. SRI.R.D.SHENOY (SENIOR ADVOCATE)

I/B SRI.RAJA VIJAYARAGHAVAN
& SRI.M.T.SURESHKUMAR

R3 BY ADVS. SRI.N.DHARMADAN (SENIOR ADVOCATE)

SMT.D.P.RENU
SRI.P.VISWANATHAN

THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-12-2012, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:

K.VINOD CHANDRAN, J
-------------------------------------------------C.R.P.No.957 OF 2006
--------------------------------------------------Dated this the 10th day of December, 2012.

ORDER

1. A bona fide purchaser, who was not aware of the sale in auction by the executing
court executing a decree for recovery of money, is before this Court, against the
concurrent findings rejecting of his application under Order 21 Rule 90. The suit was
filed by the first respondent against the second respondent for recovery of money,
numbered as O.S.No.1077/1999 before the Munsiff's court, Kollam. The suit was filed
on 13-10-1999 and at the interlocutory stage an attachment before judgment, was
ordered on 15-10-1999 in I.A.No.4289/1999. An ex-parte decree having been passed
on 21-11-2000, 4 cents of property in Survey Nos.132/2 and 133/2 of Kollam East
Village was brought to sale in E.P.No.41/2001. Auction took place on 22-10-2001 and
the sale was confirmed on6-11-2002. The revision petitioner herein approached the
court under Order 21 Rule 90 with E.A.No.314/2002. The execution court having
dismissed the application on 2-8-2003 finding that the applicant was not a bona fide
purchaser, the revision petitioner was unsuccessful in appeal too.
2. In fact before the appellate court, the revision petitioner filed an application to
withdraw the application made under Order 21 Rule 90, on the premise that the
same would not be maintainable and contending that he has already filed an
application under Order 21 Rule 97. The appellate court, found that the application
for withdrawal is not maintainable and rejected the same. At the same time, the
appellate court also found that since the appellant had admitted by the application

for withdrawal that the claim under Order 21 Rule 90 was not maintainable, the
appeal also stood dismissed.
3. I have heard learned counsel Sri.P.Viswanathan appearing for the revision
petitioner and learned Senior counsel Sri.R.D.Shenoy instructed by Sri.Raja
Vijayaraghavan appearing for the respondents 1 and 2 being the decree
holder/auction purchaser.
4. The learned counsel for the revision petitioner took me through the impugned
orders, and contented that the finding entered into by the execution court that the
sale in his favour was collusive is not borne out by any material. The lower court
finds that the judgment debtor was an employee of the revision petitioner. It relies
on the fact that the judgment debtor did not appear in court despite notice to find
collusion. On a reading of the evidence of the sole witness before the execution
court, PW1, the revision petitioner, such a case is neither admitted by the witness
nor suggested by the respondents. There is not even a question put to the witness
with respect to such employment nor has the respondents mounted the box to
depose. With respect to the appellate order, the learned counsel would point out
that the entire discussion is with respect to the withdrawal application and on
finding the same to be unsustainable; the appellate court ought to have considered
the appeal on merits, is the contention. The appellate courts' finding that the
application for withdrawal would amount to an admission as to the unsustainability
of the prayer made under Order 21 Rule 90 cannot be countenanced.
5. Going through the impugned order, I am inclined to hold that having found the
application for withdrawal to be unsustainable, the appellate court ought to have
definitely considered the appeal on merits. The findings in the order of the
execution court especially on collusion is not supported by the evidence led before
the execution court. The finding of the execution court that the appellant was not a
bona fide purchaser as upheld by the appellate court cannot be sustained.
6. The contention of the learned counsel for the revision petitioner is threefold. The
revision petitioner would contend that a bare reading of the schedule shown in
Ext.A1 and the attachment schedule would show that the property attached before

judgment and sold in auction in execution of the decree is not that covered by
Ext.A1; which is the revision petitioner's title deed. The next aspect advanced by
the revision petitioner is that Ext.A1, his title deed, would show a consideration of
Rs.40,000/- in the year 2000. The sale in Court auction in pursuance of execution of
the decree was for a total amount of Rs.1,11,000/-. The learned counsel would point
out that it is pertinent that the sale was to the decree holder itself and was for the
decretal amount which included the interest till then and is not comparable to the
actual market value. The last contention raised is with respect to Rule 330 of the
Civil Rules of Practice, which mandates the filing of an affidavit by the decree
holder, while bringing the property to sale; clearly showing any encumbrance on the
property and that too together with an encumbrance certificate. According to the
revision petitioner this would have facilitated the court to issue notice to him and
then he could have appeared before court even before the sale was conducted, to
raise his valid objections. With respect to the two contentions raised on the
boundaries of the property as also the minimal consideration, I am afraid if
examined by this Court in revision, that would be over stepping the contours of the
jurisdiction conferred under Section 115. It calls for a resolution on facts which the
revision petitioner never even attempted before the lower courts. The contention
raised with respect to Rule 330 has to be examined with reference to the legal issue
raised by the learned senior counsel on the various aspects regarding the
application of Rule 90, Rule 97 and Rule 99 of Order 21.
7. At the outset it is pointed out that the necessity of filing an affidavit showing an
encumbrance, mandated under Rule 330 is not for issuing notice to the persons
interested. It is for the intending purchasers to be made aware of such
encumbrances. The learned Senior counsel would argue on the question of whether
the application under Order 21 Rule 90 itself was sustainable without drawing
support from the findings or the evidence laid before courts. The instant revision
arises from the rejection of an application under Order 21 Rule 90. The auction
admittedly was conducted on 22-10-2001 on which date the decree holder
purchased the property with leave of the court. The sale was confirmed on 2-12002. Order 21 Rule 90 postulates an application to set aside sale on grounds of
irregularity or fraud. It postulates that if any immovable property has been sold in
execution of a decree, the decree holder, the purchaser or a person entitled to share

in a ratable distribution or one whose interests are effected for sale may apply to
the court for setting aside of the sale on the ground of irregularity or fraud. The
limitation for filing such an application is provided under Article 127 of the
Limitation Act, 1963, which stipulates 60 days from the date of sale. Admittedly, no
application was filed within the limitation period.
8. The learned counsel for the revision petitioner has a contention that when fraud
is alleged the limitation would only start from the date of knowledge. In addition to
the fact that, the facts available in the above case does not lead to any inference of
fraud. The case of the revision petitioner also was only of material irregularity. The
contention of the learned Senior counsel is that Order 21 Rule 90 on the face of it is
not a provision which could be invoked by the revision petitioner. As noticed above,
Order 21 Rule 90 takes in persons whose interests are affected by the sale
conducted by the court. The claim of the petitioner is that he has a better title by
way of Ext.A1. The title flowing from Ext.A1 would remain unaffected by the sale
conducted in execution, if such better title is established.
9. The entitlement of the revision petitioner would have been either under Rule 97
or Rule 99 of Order 21. Rule 97 enables the holder of a decree or the purchaser, in
approaching the court, against any obstruction caused in the delivery of the
property. The sweep and content of the said provision has been held to take within
its fold, even a person who anticipates obstruction, from approaching the court
before delivery and without actually having obstructed the delivery. Going by the
facts available in this case though the revision petitioner was before the execution
court on 6-11-2002, the delivery was effected after that, on 12-8-2003. The revision
petitioner has not attempted any obstruction. However, admittedly the revision
petitioner had filed an application under Order 21 Rule 97. It is agreed by both
counsels that the application stood dismissed for non prosecution. Hence the
alternative, which would have been available to the revision petitioner under Order
21 Rule 97, stands closed.
10. What remains is the remedy available under Order 21 Rule 99. Rule 99 could be
invoked even after the dispossession by the decree holder or the purchaser.
Limitation of course is 30 days from the date of dispossession as provided under

Article 128 of the Limitation Act, 1963. The petitioner has not chosen to avail of that
remedy and is now prevented from doing the same by operation of limitation.
Though, the issue of limitation was not raised before the lower courts, it is trite that
the same being a question of law could be raised at any stage. Further we are not
concerned with a proceeding under Rule 97 or Rule 99 of Order 21, and were only
examining the remedies that were available to a person, who claims title over a
property; when faced with the situation of that being sold, in an auction sale by a
Court in execution proceedings of a decree in a suit; when he is a stranger to both
the suit and the execution.
11. Would then the remedies of the revision petitioner be closed? To answer the
question, this Court draws support from 1999(1) K.L.T 637 (F.B), Kerala Financial
Corporation v. Syndicate Bank. That was a case in which the owner of a property
mortgaged it to the Kerala Financial Corporation and the Syndicate Bank, the latter
being the puisne mortgagee. The Kerala Financial Corporation filed a suit under
Section 31 & 32 of the State Financial Corporations Act, 1951 and obtained a decree
in execution of which the properties were brought to sale and purchased by the
decree holder. The Corporation was also put in possession of the same.
Simultaneously or slightly later in time to the suit of the Corporation, a suit was filed
by the Syndicate Bank also, against the mortgagor and an ex-parte decree was
obtained in execution of which the very same properties were brought to sale and
purchased by another person. The purchaser also took delivery of the properties
from the Corporation with the aid of the court.
12. The issue was as to what were the rights available to the original mortgagee
and the puisne mortgagee and how the same could be enforced. The majority in the
said case, held that though the puisne mortgagee's suit need not have been
instituted with the original mortgagee in the party array, it was incumbent upon the
original mortgage to have impleaded the puisne mortgage. While holding that the
original mortgagee had a better title to the property, the majority judgment refused
to disturb the delivery effected to the purchaser in the execution filed by the
Syndicate Bank. This was on the principle that any person who had a better title
over the property could file a suit to enforce his right irrespective of the fact that the
property was purchased by another in execution of a decree in another proceedings.

13. This principle laid down by the majority in the decision would further buttress
the contention of the learned Senior counsel that the revision petitioners' rights
alleged to flow from Ext.A1 title deed remains unaffected by the sale conducted in
execution proceedings and the revision petitioner's remedy is not under Rule 90 of
Order 21. As already held the remedies available under Rule 97 and Rule 99 of
Order 21 is no more available for reason of the default of the revision petitioner as
also the operation of limitation. It is also pertinent that Rule 101 of Order 21 deals
with a situation, when an application under Rule 97 or Rule 99 is filed challenging a
sale in execution. There is a clear mandate in the provision that, then the question
relating to right, title or interest in the property shall be determined by the court
dealing with the application and not by a separate suit. That mandate however
cannot be looked upon as providing a restriction from filing a suit. It only enables
the applicant under Rule 97 or Rule 99 to call for a determination of the question
regarding the right, title or interest; by the execution court itself without being
relegated to the remedy of a separate suit. It is also apposite to refer to Rule 104
which provides that when an order has been made under Rule 101 or Rule 103, then
that shall be subject to the result of any suit pending on the date of commencement
of a proceeding in which such an order is made. Rule 92 of Order 21 also has to be
noticed which provides that, if no application is made under Rule 89, Rule 90 or Rule
91, then irrespective of the fact whether an application is made, the court is bound
to confirm the sale, after the period of 60 days. However, the said rule which makes
a sale absolute, in the event of there being no application filed as provided in Rule
89, Rule 90 or Rule 91; specifically provides for a third party challenge to the
judgment-debtors title by filing a suit against the auction purchaser, the decree
holder and the judgment debtor by sub-Rule 4 of Rule 92 of Order 21. It is not from
sub-rule (4) of Rule 92 of Order 21 that the third party derives the entitlement to file
a suit, but the provision which mandates the confirmation of sale in court auction,
recognizes the rights of a third party to challenge the judgment-debtors title and
provides for the parties who are to necessarily participated in such a proceeding.
14. In the facts and circumstances of the case, despite this Court finding that the
impugned orders of the lower courts are not supported by any material as revealed
from the evidence led before the lower courts, this Court exercising revisional

jurisdiction is of the opinion that the rejection of the application made under Order
21 Rule 90 is proper for the reason of it being not maintainable. Hence though not
for the reasons stated by the appellate court, this Court is of the opinion that the
rejection of the application under Order 21 Rule 90 is to be confirmed, but for
reasons stated above. Needless to say that the petitioner shall be entitled to avail of
the remedy noticed by this Court of a separate suit, subject however to the laws of
limitation. The civil revision petition hence stands dismissed and the parties are left
to suffer their respective costs.