SANKARA KONAR Vs. SIVARAMAN

JUDGEMENT

(1.) When this civil revision petition was heard by one of us, it was referred to a Division Bench as it involved a question of interpretation of S.106, Code of Civil Procedure, and S.13 of the Kerala Civil Courts Act.

(2.) The facts necessary for the decision of the petition may be stated: In execution of the decree in O. S. No. 163 of 1120 of the District Court of Trivandrum, the property of the judgment debtor was sold for Rs. 12,000 on 24th Karkatakom 1121. The judgment debtor applied for setting aside the sale under O.21 R.87, Code of Civil Procedure (Travancore) corresponding to O.21 R.90 of the Indian Code. The application was dismissed by the execution court, but on appeal, the order was set aside by the High Court and the matter was remanded for fresh disposal. After remand, the District Court passed an order allowing the application. This was set aside by the High Court on the ground that the second plaintiff's legal representatives were not impleaded. The application was again remanded to the District Court. The application was thereafter transferred by the District Judge to the Subordinate Judge of Trivandrum who allowed the application. An appeal was preferred by the decree holders to the District Court. A preliminary objection was raised before the Additional District Judge, who heard the case, that he had no jurisdiction to hear it and that an appeal would lie only to the High Court, as the decree in the suit was one passed by the District Court. This was overruled, and on the merits it was held that the sale was not liable to be set aside. The legal representatives of the second defendant have therefore preferred this civil revision petition.

(3.) On behalf of the revision petitioners, it was urged that the Additional District Judge was incompetent to entertain the appeal as the decree in the suit was one passed by the District Court. Reliance was placed on S.106, Code of Civil Procedure, as well as the decision of this Court in Ramunni Kurup v. Chirutha 1959 KLR 1289.