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.
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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.