Kerala HC: Family Courts Must Be Cautious with Property Sale Objections

The Kerala High Court has emphasized that objections cannot be filed after the sale of an attached property has been confirmed, in accordance with the provision under Order 21 Rule 58(1), proviso (a). The court has cautioned Family Court judges to be more vigilant, sensitive, and careful in handling such cases.

A Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas issued this order while finding that the Family Court had erroneously entertained and ruled on a claim petition that was clearly barred by proviso (a) to Order 21 Rule 58(1).

Order 21 Rule 58(1) states “Where any claims preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained”. Proviso (a) goes on to state in this regard that, “no such claim or objection shall be entertained where before the claim is preferred or objection is made, the property attached has already been sold”.

The court stressed that “Family Court Judges are to be more careful and sensitive in dealing with human issues coming before them. Without realizing the real factual position or the law applicable, they cannot blindly pass orders unmindful of the consequences arising therefrom.”

In the case at hand, the appellant filed a petition seeking recovery of patrimony and maintenance from her husband, the second respondent. After the petition was granted in her favor, she initiated execution proceedings against a six-cent land, which was then sold in a court auction and purchased by the appellant on June 29, 2011.

The sale of the property was confirmed on August 29, 2011, and the appellant received a sale certificate on June 13, 2012. However, when the delivery of the property was scheduled for December 18, 2013, the first respondent filed a claim petition stating that the second respondent was her husband, and that the auctioned property belonged to her. She claimed to be the absolute owner and requested exemption from the sale proceedings.

The appellant objected, arguing that there was no marital relationship between the respondents, and the property should be used to recover the husband’s dues.

The Family Court allowed the claim petition and lifted the attachment, ruling that there was insufficient evidence to establish the second respondent’s title to the property. This decision was challenged in the High Court.

The main question before the Court was whether a claim petition filed after the sale was confirmed could be entertained, considering the specific prohibition under proviso (a) to Order 21 Rule 58(1) of the Civil Procedure Code (CPC).

The Court examined Section 65 of the CPC, which deals with the “Purchaser’s Title,” and observed that the property is deemed to have vested in the purchaser only when the sale becomes absolute. Until the sale is confirmed, there is no transfer of title to the purchaser. Therefore, a claim petition or objection filed before the confirmation of sale is not affected by proviso (a) to Order 21 Rule 58(1) of the CPC. It noted, “…only when the sale has become absolute then only the property is deemed to have vested on the purchaser from the date, when the property is sold. So, only when the sale becomes absolute, the vesting of right will relate back to the date of sale. So, till such confirmation of sale, there cannot be any vesting of title on the purchaser. In order to say the sale is complete, the auction sale should have been confirmed. So, till such confirmation, the sale could not be said to be complete. So, a claim petition or objection filed before confirmation of sale will not be hit by proviso (a) to Order 21 Rule 58(1) of CPC”.

In this case, the property was sold, confirmed, and a sale certificate was issued on June 13, 2012, while the claim petition was filed by the first respondent on December 18, 2013. The Court determined that the claim petition was clearly barred by proviso (a) to Order 21 Rule 58(1) and should not have been entertained by the Family Court.

The Court acknowledged that the Family Court had determined that the property sold through the court auction was the same as the property mentioned in the sale deed. The key issue for consideration was whether the property listed in the claim petition was the subject of the auction and whether it could be auctioned to recover the judgment debtor’s dues. The Court further noted that the Family Court judge had explicitly stated that the claim petitioner had no superior title over the six cents of property advertised for auction. Given these circumstances, the Court questioned how the judge could have permitted the claim petition under such circumstances. It admonished, “In the impugned order, learned Judge recorded that ‘property is now published for auction’ without verifying the fact that the property has been sold already. In fact, that order was passed much after the property was sold, and even after sale confirmation and issuance of the sale certificate to the auction purchaser. So, obviously, learned Family Court Judge was so careless and irresponsible in passing the order in E.A No.165 of 2013 in E.P No.45 of 2006. On going through that order, we fail to understand what was there in the mind of the learned Judge, either to allow the petition or to dismiss the petition.”

The Court criticized the Family Court’s handling of the case, noting that the judge had overlooked crucial facts and issued an order that contradicted the confirmed sale. The Court directed the registry to provide a copy of its judgment to the concerned judge and urged the Judicial Academy to be more cautious and attentive when dealing with similar matters.

Furthermore, the Court instructed the Family Court in Thiruvananthapuram, where the execution petition was pending, to resolve the case within one month. The first respondent/claim petitioner was also advised to seek appropriate remedies in a competent civil court, in accordance with the law.