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Varkey John Vs. Varkey Thomas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 89 of 1955 (E)
Judge
Reported inAIR1957Ker47
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 90
AppellantVarkey John
RespondentVarkey Thomas and ors.
Appellant Advocate K.K. Mathew, Adv.
Respondent Advocate K.T. Ninan, Adv. (for No. 2) and; C.K. Sivasankara Panicker, Adv. (for No. 3)
DispositionAppeal dismissed
Cases ReferredA. M. MaryFernandez v. M. Madhavi
Excerpt:
- .....in execution of ext. a decree. that the plaint property is one of the properties liable to be sold in execution of that decree by the terms thereof is not disputed and is clear from the decree itself. but there is a direction in the said decree that the properties of defendant 3 therein should be sold first & that the properties belonging to defendant 4, who is the appellant here, should be sold only after the sale of defendant 3's properties. as the plaint property was sold in violation of that direction it is contended that the sale was without jurisdiction. a petition to set aside the sale on this ground has already been dismissed for default, and it is after, that dismissal that this suit has been filed.when the decree directs the sale of the property,it is wrong to say that the.....
Judgment:

Kumara Pillai, J.

1. The only point pressed in this Second Appeal is that the Court had no jurisdiction to sell the plaint' property in execution of Ext. A decree. That the plaint property is one of the properties liable to be sold in execution of that decree by the terms thereof is not disputed and is clear from the decree itself. But there is a direction in the said decree that the properties of defendant 3 therein should be sold first & that the properties belonging to defendant 4, who is the appellant here, should be sold only after the sale of defendant 3's properties. As the plaint property was sold in violation of that direction it is contended that the sale was without jurisdiction. A petition to set aside the sale on this ground has already been dismissed for default, and it is after, that dismissal that this suit has been filed.

When the decree directs the sale of the property,it is wrong to say that the sale in execution is without jurisdiction although such sale was not in conformity with the direction in the decree regardingthe order of the sales of the various items. The direction regarding the order in which the sales areto be made is only a direction regarding the manner of the exercise of the jurisdiction to sell and doesnot affect the jurisdiction itself. We are fortified inthe view we have taken by the decision in A. M. MaryFernandez v. M. Madhavi, 1955 Ker LT 46: (AIR1955 Trav-C 92) (A). We therefore hold that thesale was not without jurisdiction and dismiss thissecond appeal. Only one set of costs is allowedto the respondents and it will be shared equally byrespondents 2 and 3.


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