IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 516 of 2006()
1. XAVIER, S/O.EDAKALATHUR CHANGALAYI
... Petitioner
Vs
1. SOUMYA KURIES AND LOANS (P) LTD.,
... Respondent
2. M.G.SREENIVASAN,
For Petitioner :SRI.JIJO PAUL
For Respondent :SRI.V.R.KESAVA KAIMAL
The Hon'ble MR. Justice K.T.SANKARAN
Dated :13/03/2009
O R D E R
K.T.SANKARAN, J.
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C.R.P.No.516 of 2006
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Dated this the 13th day of March, 2009
ORDER
The petitioner who was impleaded as additional second
respondent in E.P.No.360 of 2003 in O.S.No.10 of 1999 on the
file of the Sub Court, Thrissur has challenged in this Civil
Revision Petition the order dated 22nd June 2006 passed by the
executing court. By the order impugned, the court below
rejected the objections raised by the petitioner to the notice
under Rule 66 of Order XXI CPC. It was held by the court below
that the judgment debtor sold the property to the Revision
Petitioner after the property was attached.
2. The suit was filed by Soumya Kuries and Loans (P)
Ltd. against M.G.Sreenivasan on 4.1.1999. The property of the
defendant was attached before judgment as per the order dated
14.1.1999. According to the decree holder, the attachment was
effected on 16.1.1999. The petitioner, who is not a party to the
suit, purchased the property as per the registered assignment
deed dated 2.2.2000 from the defendant. The suit was decreed
on 21.11.2002.
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3. In execution, the property purchased by the petitioner
was proceeded against. The judgment debtor contended that he
had transferred the property to the Revision Petitioner. The
decree holder filed application to implead the purchaser and
accordingly, the Revision Petitioner was impleaded as additional
second respondent in the Execution Petition. He filed objections
and objected to the sale of the property. The Revision Petitioner
contended that he is a bonafide purchaser for value, that he was
not aware of the attachment before judgment and that the
transaction between the defendant and the Revision Petitioner is
legal and valid. He also raised a contention that attachment was
not made in accordance with law and therefore, the attachment
is invalid. If the attachment is invalid, it is contended by the
Revision Petitioner that the bar under Section 64 of the Code of
Civil Procedure will not apply. If so, in execution of the decree
against the transferor, the property now in the hands of the
transferee cannot be proceeded with.
4. Before the court below, none of the parties was
examined. The court below considered the materials on record
and came to the conclusion that attachment was effected in
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accordance with law and that the objections raised by the
petitioner are not sustainable.
5. Learned counsel for the petitioner submitted that the
petitioner was under the erroneous impression that the burden
of proof is on the decree holder to establish that there was valid
and legal attachment. The petitioner did not adduce any
evidence since the decree holder did not adduce evidence. The
counsel submits that the petitioner may be afforded an
opportunity to adduce evidence and to substantiate his
contentions. According to the petitioner, the crucial question to
be considered is whether there was a valid attachment by
effecting the order of attachment in accordance with law. This
contention can be proved by examining the Amin who effected
the attachment and by producing the relevant documentary and
oral evidence. The petitioner submits that he is prepared to
adduce relevant evidence, so that an effective and complete
adjudication of the dispute will be possible.
6. The learned counsel for the decree holder submitted
that the attempt of the petitioner is only to protract the
proceedings and to delay the execution of the decree. He
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submitted that the petitioner having purchased the property
after the attachment was ordered and effected, no further
enquiry is necessary. According to the counsel, the question of
bonafides does not arise for consideration in a case which is to
be dealt with under Section 64 of the Code of Civil Procedure.
7. Taking into account the submissions made by the
counsel on either side, I am of the view, without expressing any
opinion on the merits of the case, that an opportunity can be
afforded to the Revision Petitioner to adduce evidence and to
establish his contentions. Granting this opportunity is not
without any condition. The Revision Petitioner shall deposit a
sum of Rs.85,000/- before the executing court for payment to the
decree holder as a condition for availing this opportunity. If the
amount is deposited, the executing court shall afford an
opportunity to the petitioner to adduce evidence and to produce
documents. On failure of the petitioner to deposit the amount,
the petitioner would lose the benefit of the opportunity granted
to him.
The Revision Petition is accordingly disposed of as follows:
The order dated 22nd June 2006 passed by the executing
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court in E.P.No.360 of 2003 will stand set aside on condition that
the petitioner shall deposit before the executing court for
payment to the decree holder a sum of Rs.85,000/- on or before
30.5.2009. On failure on the part of the petitioner to deposit the
amount, the Civil Revision Petition will stand dismissed and the
order passed by the executing court will stand revived. If the
amount as aforesaid is deposited within the aforesaid period, the
execution court shall afford an opportunity to the petitioner to
adduce evidence and to produce documents. The decree holder
will be entitled to produce evidence and to adduce evidence in
reply. The executing court shall dispose of the Execution
Petition expeditiously. It is made clear that on deposit of the
amount, the decree holder will be entitled to withdraw the
amount.
K.T.SANKARAN,
JUDGE
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K.T.SANKARAN, J.
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C.R.P.No.516 of 2006
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Dated this the 19th day of June, 2009
ORDER
This case is posted for spoken to. The office noticed that
there are two mistakes in paragraph 1 of the order wherein
mention is made as Writ Petition instead of Revision Petition and
Writ Petitioner instead of Revision Petitioner.
These mistakes shall stand corrected. In paragraph 1
instead of Writ Petition, it shall be corrected as Civil Revision
Petition and for the expression ‘Writ Petitioner’, it will be
corrected as Revision Petitioner.
K.T.SANKARAN,
JUDGE
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