Vijayambika and Kamalamma vs Sreenivasan and Lord Krishna Bank Ltd.

Harun-Ul-Rashid, J.—Petitioners are the judgment debtors in E.P. No. 221/2001 in O.S. No. 1304/1999 on the file of the Munsiff Court, Alappuzha. The decree holder bank obtained a decree for money against the judgment debtors. In execution the property of the judgment debtors were sold in auction on 23.9.2006. The first Respondent Sreenivasan purchased the property in auction. The Petitioners filed E.A. No. 442/2006 under Order XXI Rule 90 of the CPC for setting aside the sale. The petition was dismissed for default on 30.1.2007 and the execution court confirmed the sale. The judgment debtors filed E.A. No. 86/2007 for restoring E.A. No. 442/2006. The restoration petition was allowed. Subsequently, E.A. No. 442/2006 was again dismissed for default on 6.2.2009. The auction purchaser filed E.A. No. 382/2009 for confirmation of sale. The sale was confirmed afresh on 6.11.2009 and the execution court issued purchase certificate to the auction purchaser.

Thereafter, the auction purchaser filed E.A. No. 408/2010 seeking delivery of the property on 8.9.2010. The court deputed amin to effect delivery. The judgment debtors obstructed delivery. They also filed E.A. No. 472/2010 for reviewing the order for delivery and E.A. No. 473/2010 for condoning the delay in filing the review application. The execution court considered the E. As on merits and passed Ext.P6 order. Ext.P6 order in under challenge. The execution court held that Order XXI Rule 95 of the CPC does not contemplate the issuance of a notice to the judgment debtors or some other person on his behalf before ordering delivery to be made and that an application under Order XXI Rule 95 of the CPC is not an application for execution of a decree. The court also referred to Rule 347 of the Civil Rules of Practice (Kerala) which deals with the delivery of property to the purchaser. The court held that the normal course open to the courts when the auction purchaser applied for delivery in pursuance of sale certificate and on payment of requisite process fee is to issue a warrant of delivery of such property.

In the present case, the judgment debtors have contested the case from the very beginning. The court observed that the judgment debtors have knowledge about the execution proceedings and the sale. After evaluating the facts and circumstances, the court held that no notice of the application for delivery of the property by the auction purchaser to the judgment debtors is necessary before ordering delivery of the property. The execution court also considered the further contention of the judgment debtors as to whether the application for delivery filed by the auction purchaser is barred by law of limitation. The court observed that the application under Order XXI Rule 90 of the CPC preferred by the judgment debtors was dismissed for default. Thereafter, the sale was confirmed. Subsequently, the application was restored at the risk of the judgment debtors. After restoration, again the matter was not prosecuted by the judgment debtors and therefore the court again dismissed the application and subsequently fresh order was passed confirming the sale. After relying on the Division Bench decision of this Court in State Bank of Travancore v. Mastan Kunju (1980 KLT 687) the execution court held that the decision make it crystal clear that when once the application to set aside the sale is restored the confirmation made earlier would stand automatically vacated and held that the confirmation made on 30.1.2007 is vacated on restoration of E.A. No. 442/2006 and the sale is confirmed on 6.11.2009 when the application under Order XXI Rule 90 is disposed of again. Taking into consideration the dismissal, restoration, subsequent dismissal and confirmation the court held that counting the period of limitation from 6.11.2009, the application for delivery is not barred by limitation. Finding that the judgment debtors have been contesting the execution petition from the very beginning and they have every knowledge about the proceedings and sale the court held that there is no justification for filing the review petition belatedly and therefore no sufficient grounds are made out to condone the delay in filing the review petition. The execution court considered in detail and discussed elaborately the contentions raised by the judgment debtors opposing the application for delivery. The court also elaborately narrated the proceedings passed by the court in the execution petition. The court after answering the question raised by the judgment debtors held that no notice of the application for delivery of the property to the judgment debtors is necessary before ordering delivery, that the application for delivery is not barred by limitation and that there are no sufficient reason for condoning the delay in filing the application for review. The court on merits held that the review petition and delay petition are filed without any bonafides and without any merit. This Court, finds that the execution court has elaborately dealt with the contentions of the parties in detail and concluded that the review petition and delay petition are without any merit. No sustainable grounds are made out by the Petitioners for interference by this Court under Article 227 of the Constitution of India.

The original petition fails and accordingly, dismissed.