IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 CRP.No. 516 of 2006() --------------------- AGAINST THE ORDER DATED 22/06/2006 IN EP 360 2003 IN OS.10/1999 of II ADDL.SUB COURT,THRISSUR .................... REVISION PETITIONER(S): ADDL.2ND RESPONDENT: ------------------------------------------------------------------------------- XAVIER, S/O.EDAKALATHUR CHANGALAYI CHACKO, KOLAZHI VILLAGE, DESOM, THRISSUR TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, JESSY XAVIER, W/O.XAVIER, KOLAZHI VILLAGE, DESOM, THRISSUR TALUK. BY ADV. MR.JIJO PAUL RESPONDENT(S): DECREE HOLDER & JUDGEMENT DEBTOR NO.1: ----------------------------------------------------------------------------------------------------- 1. SOUMYA KURIES AND LOANS (P) LTD., ROUND SOUTH, THRISSUR-1, REPRESENTED BY MANAGING DIRECTOR. 2. M.G.SREENIVASAN, S/O.MALAPPURATH GOPALAN, KOLAZHI VILLAGE, DESOM, THRISSUR TALUK. R1 BY ADVS. MR.V.R.KESAVA KAIMAL, MR.N.M.MADHU. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss K.T.SANKARAN, J. --------------------------------------------- C.R.P.No.516 of 2006 --------------------------------------------- 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. CRP 516/2009 2 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 CRP 516/2009 3 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 CRP 516/2009 4 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 CRP 516/2009 5 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 csl CRP 516/2009 6 K.T.SANKARAN, J. -------------------------------- C.R.P.No.516 of 2006 --------------------------------- 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 csl