KUNHAMBU Vs. GEETHA

JUDGEMENT

(1.) The judgment debtor in E.P. No. 86/93 in O.S.No. 50/87 of the Sub Court, Payyannur, wants to review the order of this Court passed in C.R.P. No. 1068/96 on 29.11.1996. The said Civil Revision petition was challenging the order passed by the execution court on 7.7.1995 refusing to review the order confirming the sale conducted in the case with regard to an extent of 1.06 acres of land belonging to the judgment debtor for a sum of Rs. 15,025/-. On consideration of the contentions raised by the judgment debtor, this Court found as per the impugned order that there is no scope for interfering with the order of the execution court.

(2.) The thrust of the argument of the learned counsel for the petitioner is that while passing the order in the Civil Revision Petition, this Court failed to correctly appreciate the impact of the amendment to the Code of Civil Procedure with regard to the Kerala Amendment brought to O.21 R.85 of the CPC and that if correctly construed, it could be seen that the entire amount including the cost of stamp paper, as contemplated in the Kerala Amendment, had not been deposited by the decree holder and on that ground alone the order of the execution court should have been interfered with. Secondly, it is argued that the sale was for a grossly inadequate price and that the Court failed to exercise its jurisdiction under O.21 R.64 and 66 of the CPC which renders the sale conducted void and that that aspect should also have weighed with this Court to invalidate the order of the execution court refusing review.

(3.) The learned counsel for the respondent decree holder submitted that there is no scope for interfering with the order for either of the grounds. Relying on case law, he emphasised that when there is conflict between the provisions in the C.P.C. as amended in 1976 and Kerala Amendment which had been brought in earlier which are inconsistent with each other, it is the provisions in the 1976 Act that will prevail and that if so construed, there is no deficiency in the deposit made by the decree holder with regard to the sale price. Thirdly, it is pointed out that as long as the judgment debtor does not challenge the validity of the sale by filing appropriate petition under O.21 R.90 of the CPC or challenges the validity of the sale on any other ground by filing application under S.47 of the CPC, what the court has to look into is only whether there is any deposit as contemplated by law justifying interference with the Court sale already conducted and that in the absence of any such deposit or a petition under O.21 R.90 of the CPC, it has to confirm the sale. It is pointed out that in the instant case the petitioner had failed to challenge the validity of the sale held on 12.7.94 at the appropriate stage. He also failed to file any petition under S.47 of the CPC challenging the jurisdiction of the court to conduct the sale within the limitation period of three years and that in the circumstances, there is no justification to interfere with the order dated 7.7.95 and in that perspective the order of this Court challenged in the review is also fully justified.