IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 150 of 2009()
1. N.SURENDRAN, DEVI KRIPA,
... Petitioner
Vs
1. S.THANKAPPAN J.K. HOUSE,
... Respondent
2. M.S. MUNAVAR FILMS, REP. BY ITS
3. T.P. BAVA, MUNVAR FILMS ASSOCIATES,
For Petitioner :SRI.R.KRISHNA RAJ
For Respondent :SRI.J.HARIKUMAR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :06/07/2009
O R D E R
V. RAMKUMAR, J.
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C.R.P. No. 150 of 2009
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Dated: 6-7-2009
JUDGMENT
The 3rd party applicant in E.A. No. 417 of 2006 in E.P. No.
26 of 1999 in O.S. 210 of 1982 on the file of the Sub Court,
Thiruvananthapuram , is the revision petition. He challenges the
order dated 6-6-2007 in E.A. 417 of 2006.
2. The facts of the case leading to the impugned order are
as follows:-
The aforesaid suit O.S. No. 210 /1982 was filed on 24-5-
1982. by the first respondent herein namely Thankappan and
M/s. J.K. Productions a registered partnership firm represented by
its managing partner, the said Thankappan against respondents
2 and 3 herein namely M/s. Munavar Films and its managing
partner T.P. Saidalikutty @ T.P. Bava for realisation of a sum of Rs.
1,50,000/- with interest at the rate of six percent per annum on
the principal amount from the date of suit till realisation and
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cost from the defendants.
2. After a chequered career spanning over 10 years the
said the suit was eventually decreed ex-parte on 13-11-1992.
There was an attachment before judgment in the suit with regard
to 51 = cents of land comprised in survey Nos. 245/5-1 and
245/3 of Chettivilakam Village. The attachment was effected on
4-6-1982. At a time when the order of attachment before
judgment was in force T.P. Saidalikutty @ T.P. Bava, the 2nd
defendant sold 17 Ares (about 43 cents) of land comprised in
Survey No. 245 /3 to one K.G. Mathevan on 8-8-1988. On 12-
6-1989 the said Bava sold 3.20 Ares (about 8 cents) of land
comprised in Survey No. 245/5-1 to the said K.G. Mathevan. One
Haneefa purchased 17.59 Ares (43 = cents) of land comprised in
survey No. 245/3 on 17-2-1989 from the said K.G. Mathevan.
On 24-2-1999 the decree holder filed E.P. 26/1999 before the
court below for realisation of the decree amount (which had
swelled to Rs. 3,23,968/-) by sale of the properties under
attachment. Some time in the year 2006 the Amin came to the
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property. Thereupon, the petitioner herein who is a stranger to
the decree filed a petition to set aside the sale. The said petition
was dismissed. The property which was proclaimed for sale was
16 cents of land lying on the eastern side of the 43 cents of land
comprised in Survey No. 245/3 belonging to the 2nd defendant/2nd
J.D. namely T.P. Bava. The said 16 cents had been identified as
plot ABCDEFGHIJ shown in red ink in the survey report and
plan submitted by Smt. V.K. Sandhya, Advocate Commissioner.
Aggrieved by the order dismissing the revision petitioner’s
application to set aside the sale , he filed W.P.C. No. 8056 of 2005
before this Court. As per an interim direction, this Court called
upon the revision petitioner to deposit Rs. 75,000/- as a condition
for granting a stay of execution. He did not comply with the said
condition and the said Writ Petition was dismissed by this Court.
Thereafter the petitioner claims that he did not pursue his
application to set aside the sale. On 10-3-2006, the petitioner
filed the present application, namely, E.A. 417 of 2006 to issue a
Commission assisted by the Taluk Surveyor to ascertain whether
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the property notified for sale was the very same property
identified for delivery. During the further progress of the case
the learned counsel appearing for the revision petitioner in the
Court below had requested the Court below to treat E.A. 417/06 as
a claim petition with a request to set aside the sale. On 13-3-
2006, the 16 cents property was delivered over to the decree
holder who had been allowed to purchase the same . The
petitioner filed W.P. (c ) No. 7351/06 alleging that instead of
delivering the property proclaimed for sale the property
belonging to the revision petitioner was delivered over. The said
Writ Petition was dismissed by this Court on 13-3-2006 holding
that the petitioner could raise all his contentions before the
Executing Court. The Executing Court, thereafter, dismissed E.A.
No. 417 of 2006. The petitioner filed W.P.( C) 11260 of 2006
contending inter alia that E.A. 417/06 was dismissed without
hearing him. As per Annexure A1 judgment dated 20-6-2006,
this Court set aside the order dismissing E.A. No. 417 of 2006 and
directed the Executing Court to re-consider the said application
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observing that if it is proved that the property sold and taken
delivery of are different properties then the consequences should
follow. Thereafter, the Executing Court issued a fresh Advocate
Commission assisted by the Taluk Surveyor. The new
Commissioner filed Annexure A2 report dated 29-11-2006 along
with a plan. Thereafter the learned Sub Judge, after hearing both
sides, as per the impugned order dated 6-6-2007 dismissed E.A.
No. 417 of 2006. It is the said order which is assailed int his
Revision.
3. Advocate Sri. Krishna Raj, the learned counsel
appearing for the revision petitioner made the following
submissions before me in support of this Revision:-
As per agreement for sale dated 29-4-1993 the revision
petitioner agreed to purchase 43 = cents of land comprised in
Survey No. 245/3 from K.G. Mathevan. As per the report dated
29-11-2006 submitted by Adv. Sri. V. Suresh Kumar, the last
Commissioner appointed by the Executing Court, the property
proclaimed for sale is comprised in re-survey No. 614/18, if . if
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we go by the boundaries. But as per the original sale
proclamation the property identified for sale is 43 cents
comprised in re-survey No. 614/30. The total extent of the said
R.S. 614 /30 as per revenue records and possession is only 30
cents. Going by the said report of the Advocate Commissioner the
property which was actually delivered over to the decree holder
is 5.350 cents in Survey No. 614/19 and 10.650 cents in R.S.
614/30. When R.S. No. R.S. 614/30 has only a total extent of 30
cents, the sale proclamation showing that the judgment debtor
had 43 cents in R.S. 614 /30 was patently erroneous. The
Executing court was not justified in discarding the report and
survey plan submitted by Sri. V. Suresh Kumar, the Advocate
Commissioner. The court below was not right in holding that E.A.
417 of 2006 was a claim petition. No submission to that effect
was made by the revision petitioner’s counsel appearing in the
court below. E.A. 417/06 was only an application to issue a
commission. The court below should have accepted the
petitioner’s contention that the property which was delivered
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over to the decree holder was not the property proclaimed for sale
and that the property delivered over is the property in the
possession of the revision petitioner pursuant to the agreement
dated 29-4-1993 for sale executed in favour of the revision
petitioner. In fact, the revision petitioner has instituted a suit for
specific performance of the said agreement against Haneefa to
whom the revision petitioner had paid Rs. 10 lakhs as evidenced
by various receipts produced by him before the court below.
4. I am afraid that I find myself unable to agree with the
above submissions made on behalf of the claimant. The facts
already adverted to in paragraphs 2 above will clearly show that
at a time when attachment before judgment was in force in the
money suit, the defendant T.P. Bava had on 8-8-1988 sold 17
Ares (approximately 43 cents) of land comprised in Sy. No. 245/3
of Chettivlakam Village to one K.G. Mathevan. The defendant
made a further sale of 2.30 Ares (approximately 8 cents) of land
comprised in Sy. No. 245/ 5-1 to the very same K.G. Mathevan.
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On 17-2-1989 one Haneefa purchased 17.59 Ares
(approximately 44 cents) of land comprised in Sy. No. 245/3
from K.G. Mathevan referred to above. It was from the said
Haneefa that the revision petitioner claims to have agreed to
purchase 43 = cents of land comprised in Sy. No. 245/3 on 29-
4-1993. Except producing a photocopy of the alleged
agreement dated 29-4-1993 and certain self serving receipts
allegedly issued by Haneefa for having received Rs. 10,0000
lakhs (Rupees ten laksh only) from the revision petitioner, he did
not produce the original agreement nor did he mount the
witness box to speak in terms of his case. The revision petitioner
has no case that he has other properties in the vicinity of the
property proclaimed for sale and delivered over other than the
43 = cents of land allegedly forming the subject matter of the
agreement for sale. It is pertinent to note that the sale of 43 cents
of land comprised in Sy. No. 245/3 by T.P. Bava (the
defendant/judgment debtor) was on 8-8-1988 which is six
years after the institution of the suit and at a time when the order
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of attachment before judgment over the property was in force. If
so, the sale of the property by the defendant in favour of K.G.
Mathevan on 8-8-1988 was not only hit by lis pendence but
was also void and inoperative by virtue of Sec. 64 C.P.C.
Resultantly, no title could validly pass in favour of K.G. Mathevan.
Consequently, Haneefa who purchased the property on 19-2-
1989 from K.G. Mathevan also did not derive any title over the
property. It is from the said Haneefa that the Revision Petitioner
claims to have agreed to purchase the property on 29-4-1993.
The revision petitioner cannot have any semblance of title over
the property . Even assuming that he has managed to create
documents to the effect that he is in possession of the property, it
is well settled that mere possession of the property by the
claimant will not be sufficient and the claimant will have to show
that he has a right to possession independent of the judgment
debtor. (See Ittiyachan v. Tomy – 2001 (3) KLT 117). Here his
claim is, first of all not independent of the judgment debtor.
Secondly, the genesis of his title itself is under an invalid private
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sale by T.P. Bava the defendant at a time when the order of
attachment over the property was in force. Besides, it was hit by
lis pendens. The argument that the learned counsel appearing
for the revision petitioner in the court below did not request the
court to treat E.A. 417/06 as a claim petition with a request for
setting aside the sale, is ill-founded. The order sought to be
revised specifically says that the counsel appearing for the
revision petitioner did request the court below to treat E.A.
417/06 as a claim petition. The said statement in the order is the
last word and it is not open to the revision petitioner to take
exception to the said statement in the order. If E.A. No. 417 of
2006 was not liable to be treated as a claim petition, but merely
as an application to issue a fresh commission as it purported to
be, then E.A. 417/06 stood allowed on 20-9-2006 with the issue
of a fresh commission. The proceeding could thereafter continue
only if what is recorded in the impugned order is true.
5. The property which was identified by the Advocate
Commissioner Smt. V.K. Sandhya with the assistance of a retired
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Head Surveyor is the plot shown as ABCDEFGHIJ admeasuring
6.47 Ares corresponding to 16 cents comprised in Sy. No. 245/3
of Chettivilakom Village and marked in red ink with clear
measurements as per the Survey Plan dated 6-3-2006 filed
along with the report dated 10-3-2006. The said property is
shown as lying north-south towards the eastern portion of the 43
cents of land comprised in Sy.No. 245/3. The very same property
has been identified by the Advocate Commissioner V. Suresh
Kumar in the plan dated 27-11-2006 submitted along with his
report dated 29-11-2006. The only change is that instead of
showing the old Sy. No. 245/3 the 2nd Commissioner has shown
the corresponding re-survey Nos. as 614/19 and 614/30. Merely
because the sale proclamation has shown only re-survey No.
614/30, and has not shown re-survey No. 614/19, which takes
in only 5.350 cents out of the 16 cents delivered, it does not
follow that the sale proclamation was defective or that the
consequent delivery is illegal. This is because the old Survey No.
245/3 which takes in the entire property proclaimed for sale and
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delivered over has been specifically mentioned in the sale
proclamation. When the only claim of the revision petitioner is
that he agreed to purchase 43 cents including the 16 cents
proclaimed for sale in Sy. No. 245/3, and he has admittedly not
obtained any sale deed from Haneefa who himself got the
property from K.G. Mathevan, who in turn obtained the property
from the defendant/judgment debtor pendente lite and in breach
of Sec. 64 C.P.C., the revision petitioner had absolutely no locus
standi to object to the sale or delivery of the said 16 cents of land.
His only claim was over 43 cents of land comprised in Sy. No.
245/3 which originally belonged to the judgment debtor. The
petitioner does not claim any other property under any other
independent title. Hence his claim, that too without any
semblance of title was under the judgment debtor. The court
below was therefore fully justified in dismissing E.A. 417/06. The
very fact that the learned counsel for the judgment debtors were
also supporting the revision petitioner indicates that the transfers
pendente lite were collusive and fraudulent transfers brought
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into existence with a view to frustrate the decree holder. I do not
find any merit at all in this Revision which is accordingly
dismissed with costs.
Dated this the 6th day of July 2009.
Sd/-V. RAMKUMAR,
(JUDGE)
/true copy/
ani.