K K ASOKAN Vs. SADASIVAN

JUDGEMENT

(1.) PETITIONER, judgment debtor in E.P.No.1879 of 2005 and defendant in O.S.No.1449 of 2000 of the court of learned Munsiff, Thrissur has suffered a money decree and in execution of that decree six cents belonging to him was sold for Rs.1,62,000/-. PETITIONER filed E.A.No.876 of 2009 to set aside the sale (under Order XXI Rule 90 of the Code of Civil Procedure - for short, "the Code") alleging that there is gross undervaluation of property in that it would have fetched Rs.60 lakhs while it was sold for Rs.1,62,000/-. Executing court dismissed the application vide Ext.P5, order observing that no evidence, oral or documentary was adduced in support of that contention. According to the learned counsel sufficient evidence has already been adduced. It is pointed out by learned counsel that report of the Village Officer and the assignment deed (Ext.P4) in favour of petitioner which revealed the sale consideration as on that day as Rs.1,95,000/- were produced before the executing court. But inspite of that, E.A.No.876 of 2009 was dismissed by the learned Munsiff allegedly for the reason of want of evidence.

(2.) DISMISSAL of E.A.No.876 of 2009 being one under Rule 92 of Order XX1 of the Code is appealable under Order XLIII, Rule 1(j) of that Code. When a statutory remedy of appeal is available there is no reason why this Court should invoke the supervisory jurisdiction under Article 227 of the Constitution. According to the learned counsel, since executing court has committed a patent illegality and irregularity in overlooking the evidence on record, the order is subject to the supervisory jurisdiction of this Court. The alleged illegality and irregularity which petitioner has urged in this petition could be urged in the appellate court in a statutory appeal. Hence I am not inclined to interfere in the matter under Article 227 of the Constitution. Proper course available to the petitioner is to invoke the statutory remedy available to him. Resultantly this petition is closed without prejudice to the right of petitioner to challenge the impugned order by way of appeal as provided under Order XLIII Rule 1(j) of the Code. In case there is delay in filing the appeal on account of pendency of this petition it is open to the petitioner to request the appellate court to exclude/condone the period during which this petition was pending in this Court, as provided under law and if any such request is made, appellate court shall consider that request as provided under law.