IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ex.FA.No. 57 of 2004()
1. MATHEW SEBASTIAN, S/O.SEBASTIAN, AGED
... Petitioner
Vs
1. KULAVELI KUNNUMBRATH ABOOBACKER,
... Respondent
2. RAVEENDRA MESTHIRI,
For Petitioner :SRI.P.C.HARIDAS
For Respondent :SRI.A.MOHAMED MUSTAQUE
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :07/08/2008
O R D E R
PIUS.C.KURIAKOSE, J.
- - - - - - - - - - - - - - - - - - - - -
Ex.F.A.No.57 OF 2004
- - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 7th day of August, 2008
JUDGMENT
Service is completed and I have heard the submissions of
Sri.P.C.Haridas, counsel for the appellant and those of Sri.M.K.Sumod,
counsel for the respondent. It was submitted by Sri.Sumod who
appears for the decree holder-first respondent that a consensus has been
arrived at between the appellant and the first respondent who are the
contesting parties. The consensus is to the effect that the sum of
Rs. 31,130/- which was deposited by the appellant before the execution
court pursuant to this court’s interim order dated 03/12/2004 can be
allowed to be withdrawn by the first respondent and that thereupon the
order of attachment can be lifted.
2. Sri.P.C.Haridas submitted that the finding of the learned
Subordinate Judge that the appellant is not a bonafide purchaser for
value is wrong. He submitted that the inability to produce the original
of the title document on the basis of which the appellant claimed title
was that the purchase itself was with financial assistance rendered by a
Ex.F.A.No.57/04 2
bank and the document had been deposited with that bank itself in
connection with an equitable mortgage. Before this court certified
copy of the sale document has been produced. The certified copy will
reveal that much prior to the date of attachment the property in
question had been purchased by the appellant. It is clear that the
property has been purchased by the appellant with financial assistance
from a bank. Naturally, the financing bank had become convinced
regarding the clarity and marketability of the title when the bank
advanced loan to the appellant for purchasing the property. I am not
prepared to agree with the learned Subordinate Judge’s observation that
the appellant is not a bonafide purchaser for value. I hold that the
appellant is a bonafide purchaser for value.
3. Recording the compromise and in view of my finding as
above, I set aside the impugned judgment and allow the claim petition
E.A.No.281/02 in E.P.No.43/2000 subject to the following conditions;
The entire sum of Rs. 31,130/- deposited by the appellant before
the execution court pursuant to this court’s interim order dated
3/12/2004 will be allowed by the court below to be withdrawn by the
Ex.F.A.No.57/04 3
first respondent- the petitioner in the E.P.. Once the amounts are
withdrawn, this judgment allowing E.A. will become operative and the
order of attachment will stand lifted. Since it is found that the
appellant is a bonafide purchaser for value, it is made clear that the
appellant will have every right to proceed against the second
respondent for recovery of the amount which he became obliged to
deposit pursuant to the order of this court.
PIUS.C.KURIAKOSE
JUDGE
sv.
Ex.F.A.No.57/04 4