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Parakandy Vasu vs Chamavil Sathyanandan on 23 March, 2009

Kerala High Court
Parakandy Vasu vs Chamavil Sathyanandan on 23 March, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Ex.FA.No. 19 of 2006()


1. PARAKANDY VASU, S/O.RARICHUTTY,
                      ...  Petitioner
2. PARAKANDY BALAN, S/O.RARICHUTTY,
3. PARAKANDY KARUNAKARAN,

                        Vs



1. CHAMAVIL SATHYANANDAN,
                       ...       Respondent

2. KAVILPURAYIL SOBHANA, D/O.AYYAPUTTY,

                For Petitioner  :SRI.T.SETHUMADHAVAN

                For Respondent  :SRI.A.SUDHI VASUDEVAN

The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :23/03/2009

 O R D E R
            P.R.RAMAN & P.S.GOPINATHAN, JJ.

                   -------------------------------

             Ex.F.A.Nos.19, 21, 33, 34, 35, 42, 46,
                       47 & 48 of 2006 and
                       Ex.F.A.No.6 of 2007

                   -------------------------------

                Dated this the 23rd March, 2009

                         J U D G M E N T

Raman, J.

Ex.F.A.No.19 of 2006 arises out of the order in

E.A.No.991 of 2004 and E.A.No.992 of 2004 in E.P.No.310 of

1986 in O.S.No.71 of 1983; Ex.F.A.No.21 of 2006 against the

order in E.A.No.989 of 2004 and E.A.No.990 of 2004 in

E.P.No.310 of 1986 in O.S.No.71 of 1983; Ex.F.A.No.33 of 2006

against the order in E.A.No.997 of 2004 and E.A.No.998 of 2004

in E.P.No.312 of 1986 in O.S.No.70 of 1983; Ex.F.A.No.34 of

2006 arise out of the order in E.A.No.985 of 2004 and E.A.No.986

of 2004 in E.P.No.309 of 1986 in O.S.No.66 of 1983;

Ex.F.A.No.35 of 2006 against the order in E.A.No.993 of 2004

and E.A.No.994 of 2004 in E.P.No.311 of 1986 in O.S.No.72 of

1983; Ex.F.A.No.42 of 2006 against the order in E.A.No.995 of

2004 and E.A.No.996 of 2004 in E.P.No.311 of 1986 in O.S.No.72

Ex.F.A.Nos.19 of 2006 etc.

2

of 1983; Ex.F.A.No.46 of 2006 against the order in E.A.No.999 of

2004 and E.A.No.1000 of 2004 in E.P.No.312 of 1986 in

O.S.No.70 of 1983; Ex.F.A.No.47 of 2006 against the order in

E.A.No.1003 of 2004 and E.A.No.1004 of 2004 in E.P.No.313 of

1986 in O.S.No.69 of 1983; Ex.F.A.No.48 of 2006 against the

order in E.A.No.1001 of 2004 and E.A.No.1002 of 2004 in

E.P.No.313 of 1986 in O.S.No.69/1983; and Ex.F.A.No.6 of 2007

in E.A.No.987 of 2004 and E.A.No.988 of 2004 in E.P.No.309 of

1986 in O.S.No.66 of 1983, on the file of I Additional Sub Court,

Kozhikode.

2. There were five money suits instituted by the

plaintiffs, O.S.Nos.66, 69, 70, 71 and 72 of 1983, on the file of I

Additional Sub Court, Kozhikode. During the pendency of the

suits, 4 items of properties were attached before judgment.

Eventually, the suits were decreed. After the decree, the decree

holders sought to execute the decrees by filing E.P.Nos.309, 310,

311, 312 and 313 of 1986. Item Nos.3 and 4 were sold in

auction and purchased by third parties. Item Nos.1 and 2,

Ex.F.A.Nos.19 of 2006 etc.

3

though were subject matter of attachment, were subsequently

sold by the judgment debtor in favour of third parties, who later

filed claim petitions before the Execution Court seeking to lift the

attachment in respect of Item Nos.1 and 2. True, that they had

on earlier occasions sought to lift the attachment which was

however declined and there were proceeding before this Court

also, but this Court did not interfere with the order, dismissing

such claims, obviously for the reason that the decree was

pending execution. Now that the decree in all the five suits

having been recorded satisfaction, by selling two items, viz., Item

Nos.3 and 4, they have preferred separate applications. The

court below allowed the applications and lifted the attachment in

respect of Item Nos.1 and 2 on the following grounds. Since the

decree has been closed after recording satisfaction, there is no

justification for continuing the attachment in respect of Items.1

and 2. The court below also declared title in respect of third

parties who have purchased the properties from the judgment

debtors.

Ex.F.A.Nos.19 of 2006 etc.

4

3. The appellants contend that in so far as the

proceedings against Item Nos.3 and 4 have not been completed,

since there are claim petitions against those items, the court

below ought not have lifted the attachment in respect of Item

Nos. 1 and 2. The claim petitions preferred against Item Nos. 3

and 4 are the subject matter of the appeals in connected two

sets. It is also contended that the judgment debtor could not

have sold item Nos.1 and 2 ignoring the attachment and the

purchaser cannot get any valid title, so long as the attachment

continues and the purchase was during the pendency of such

attachment.

4. As regards the second submission, we find force

in the contention. If item Nos. 1 and 2 were already under

attachment before judgment and continued, the judgment debtor

could not have transferred valid title in favour of third parties,

until those attachments were lifted. Therefore, that is not a

reason for lifting the attachment in respect of Item Nos. 1 and 2.

The subsequent purchase from the judgment debtor has only to

Ex.F.A.Nos.19 of 2006 etc.

5

be ignored, as against the decree decree holder, if those items

are required to be proceeded with. However, on the first

contention, if the decree is fully satisfied and the court below has

recorded satisfaction and there is no further execution

proceedings pending, in which event the attachment in respect

of the remaining property is unnecessary to continue and hence

lifting of attachment on that ground is found quite just and

proper. The appeals are devoid of merit and are dismissed. No

costs.

P.R.RAMAN, JUDGE

P.S.GOPINATHAN, JUDGE.

nj.

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