ACHAMMA CYRIAC Vs. KERALA FINANCIAL CORPORATION

JUDGEMENT

(1.) The 4th respondent and the 4th Judgment debtor in SFC (OP) No. 206/81 and E.P. 135/84 on the file of the District Court, Ernakulam, has preferred this revision against the order dated 19-12-1995 in E.A. 39/1995 arising out of the said E.P. Respondent No. 1 herein, the Kerala Financial Corporation (hereinafter called the Corporation) is the decree holder. Respondent Nos. 3, 5, 6 and 7 along with the petitioner are the partners of respondent No. 2 firm called Mundadan Industries at Angamali. By the impugned order, the prayer of the petitioner to set aside the sale of the immovable properties which are items 1 and 2 of the decree schedule held on 12-3-1986 in execution of the decree schedule held on 12-3-1986 in execution of the decree for realisation of the loan amount was rejected. Her prayer to permit her to redeem the said items of mortgaged property by deposit of the entire decree debt with interest, costs etc. upto date was also rejected.

(2.) The questions that arise for consideration in this revision are: (1) whether the sale of the two items of immovable properties held on 12-3-1986 in execution of the decree is liable to be set aside on the ground that the sale was void; and (2) whether the petitioner is entitled to redeem the mortgage by deposit of the entire decretal debt together with upto date interest and costs.

(3.) As the partners of respondent No. 2 firm Mundadan Industries, the petitioner and others took a loan of Rs. 5,60,000/- from the first respondent Corporation. The property, the sale of which is now sought to be declared as void, was furnished as collateral security and a mortgage deed was registered on 5-4-1972. Since the loan amount was not paid, the Corporation instituted the O.P. on 6-7-1981 for recovery of an amount of Rs. 12,91,505.85 with future interest at 13.5%. The present petitioner was respondent No. 1 therein. On 5-10-1983, the prayer in SFC (OP) 206/81 was allowed with a direction for sale of the property to realise the outstanding dues from the petitioner and other partners of the firm. No appeal was filed against the order in that O.P. Hence that order has become final. On 29-8-1984, execution was levied by filing E.P. 135/84 for realisation of Rs. 19,29,965/- Notice under R.66 of O.21 of the Code of Civil Procedure, for short, the C. P. C. was issued. The present petitioner appeared on 15-12-1984 and filed a counter affidavit on 2-2-1985. The objections filed by the judgment debtors were considered and ruled out by the order dated 5-8-1985. The property was sold on 12-3-1986. The decree holder mortgagee Corporation purchased the property for Rs. 17 lakhs. On 24-5-1986, judgment debtors 1, 2 and 3 filed a petition under R.90 of O.21 C. P. C. for setting aside the sale. It was registered as E.A. 42/86. The present petitioner was not made a party therein, on 27-3-1987, the petitioner was dismissed. The judgment debtors filed C.M.A.No. 132/87 before the High Court against the order dated 27-3-1987. By the judgment dated 10-3-1988, this court remanded the matter for fresh hearing. E.A. 42/86 was again dismissed on 4-9-1989. C.M.A.No. 13/ 90 was filed before this court against the order dated 4-9-1989. In that C. M. A. the appellants judgment debtors unconditionally agreed to pay the decretal debt on or before 2-7-1991 in accordance with the joint statement filed by both the parties on 2-1-1991. On 31-8-1990, the Corporation had filed a petition (E.A. 23/90) for delivery of possession of the property sold in execution of the decree. Notice was issued to the present petitioner as well as other judgment debtors. The present petitioner and others did not file any objection although entered appearance. Hence the court passed an order on 30-11-1990 for delivery of possession of the property to the Corporation. However, the proceeding remained stayed till 22-9-1991 in view of the order in C.M.A.No. 13/90. On 6-9-1991, the court passed the order for delivery of possession on 30-9-1991. There was resistance by the sons of the present petitioner. On 15-11-1993 directions were given by the court to remove the obstruction. On 8-12-1993, the Amin effected the delivery of possession of items 1 and 2 except the residential building in item No. 2 of the decree schedule property. On 7-12-1993, E.F. A.No. 30/93 was filed before the High Court by the second respondent, who was the obstructor in E.A. 36/91. The prayer for stay of delivery of possession was refused. Again E.A.No. 50/93 was filed by the present petitioner to declare that the delivery of possession effected by the Amin was illegal. The present petitioner obstructed to the delivery of possession of the residential building. The Corporation filed E.A. 54/93 for police protection. The court below dismissed E.A. 50/93 and allowed E.A. 54/93 by a common order dated 7-1-1994. C.R.P.No. 137/94 filed before the High Court against the order in E.A. 50/93 was also dismissed. On 12-1-1994, the decree holder Corporation took delivery of the residential building. After the purchase of the properties by the decree holder Corporation on 12-3-1986, the decree holder still claimed balance amount under the decree as shown in the caveat dated 28-8-1995 filed by the decree holder and produced by the petitioner along with E.A. 42/95. The petitioner filed E.A. 39/95 in the execution court to declare the sale as void and for restoration of possession and redemption of mortgaged property. By the impugned order dated 19-12-1995, the E.A. was dismissed and the present revision has been preferred against it.