IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 16901 of 2005(K)
1. A.A. PAUL, AGED 67 YEARS,
... Petitioner
Vs
1. DISTRICT COLLECTOR, THRISSUR DISTRICT,
... Respondent
2. THE TAHSILDAR, MUKUNDAPURAM TALUK,
3. KERALA SMALL INDUSTRIES DEVELOPMENT
4. M.K. FRANCIS, S/O. KOCHUPAPPU,
5. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.BABU CHERUKARA
For Respondent :SRI.M.A.MANHU, SC, SIDCO
The Hon'ble MR. Justice V.GIRI
Dated :11/03/2008
O R D E R
V.GIRI, J.
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W.P.(C)No. 16901 OF 2005
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DATED THIS THE 11TH DAY OF MARCH, 2008
J U D G M E N T
According to the petitioner, he purchased an extent of 58 =
cents of land in various survey numbers in Kattoor Village from
Irinjalakuda Kuries and Finance (P) Ltd. under Exhibit P1 sale
deed. The vendor of the petitioner had obtained the property
under Court auction, by executing the decree in O.S.No.200/92,
which is a suit filed by it for realisation of the amount due under
a loan transaction. Apparently, the Court sale was confirmed and
Exhibit P2 sale certificate was issued in favour of the petitioner
under Exhibit P3. According to the petitioner, he thereafter
moved for delivery of the property. According to him, an
application under Order XXI Rule 58 CPC was filed by the
Tahsildar contending that the property covered by Exhibit P1
document had already been attached at the instance of SIDCO
and that therefore the said property was not liable to be sold in
Court auction. Apparently, the petition under Order XXI Rule 58
W.P.(C)No.16901/05 2
CPC was treated as a claim petition and it was dismissed under
Exhibit P5 order dated 23.3.1999. The Court held that sale had
been effected earlier, sale certificate issued and therefore the
petition under Order XXI Rule 58 CPC was not maintainable. It is
seen that in the meanwhile, the same property was brought to
revenue sale and the 4th respondent purchased the same. He
approached this Court in O.P.No.2201/03 contending that the
revenue sale in his favour was held on 16.4.1996, that the sale was
confirmed on 4.7.1996 and that nevertheless the sale certificate was
not being issued. This Court under Exhibit P8 judgment disposed of
the writ petition directing the Tahsildar to give the documents of
title of the property to the petitioner therein and also to do
everything that is required to confer title on the petitioner therein to
get mutation effected.
2. The petitioner preferred Writ Appeal No.630/03 against
Exhibit P8 judgment. Exhibit P9 is the memorandum of appeal. The
petitioner referred to the Court sale at the instance of Irinjalakuda
Kuries and subsequent purchase effected by him under Exhibit P5.
The Division Bench of this Court in Exhibit P11 judgment declined to
interfere with Exhibit P8. The Court held as follows:
W.P.(C)No.16901/05 3
” We are of the view, if the appellant is
aggrieved by the issuance of sale
certificate and has got a superior claim
over the property in question those are all
matters to be taken up by the appellant
before appropriate forum. Disputes
between the parties cannot be adjudicated
by us in this writ appeal. Under such
circumstances, this writ appeal is disposed
of. We make it clear that the judgment of
the learned Single Judge and the issue of
sale certificate would not stand in the way
of the appellant in agitating his rights
before appropriate forum. We are also not
expressing any final opinion with regard to
the rights of the parties.”
Therefore the Division Bench made it clear that if the petitioner has
got superior claim over the property in question, then it is upto him
to agitate the matter before the appropriate forum.
W.P.(C)No.16901/05 4
3. It is after Exhibit P11, the petitioner has preferred this
writ petition essentially challenging Exhibit P12 sale certificate
issued in favour of the purchaser in the revenue auction.
4. I have heard the learned counsel for the petitioner and
the learned Government Pleader as well. In my view, the petitioner
cannot maintain a challenge against the sale certificate in
proceedings under Article 226 of the Constitution of India for more
than one reason. Firstly, the petitioner’s contentions in this behalf
were considered by the Division Bench in Exhibit P11 judgment.
The Division Bench held that if the petitioner has superior claim over
the property, it is upto him to approach the appropriate forum in
that regard. In other words, if the petitioner asserted a title to the
property stated to have been acquired prior in point of time, then it
is upto him to assert title and seek to defend the same against all
others including the subsequent purchaser. It is upto the petitioner
to seek appropriate reliefs in this regard. In my view, the
appropriate forum for the petitioner would be the Civil Court.
Secondly, the challenge merely against the sale certificate issued
under the provisions of the Revenue Recovery Act would not be
maintainable. The petitioner has not challenged the revenue sale in
W.P.(C)No.16901/05 5
favour of the holder of Exhibit P12 certificate under the provisions of
the Revenue Recovery Act. Of course, it is possible that the
petitioner may not consider it necessary to do so, consistent with
his claim that his vendor had acquired title to the property prior to
the acquisition of title by the auction purchaser and that he has
superior claim over that property. At any rate challenge against
sale certificate may not really improve the case of the petitioner.
For all these reasons, the petition is bereft of merits and it is
dismissed subject to the right of the petitioner to take appropriate
action as already permitted by this Court under Exhibit P11
judgment.
V.GIRI, JUDGE.
dsn