IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 CRP.No. 257 of 2004() --------------------- AGAINST THE ORDER DATED 30/06/2003 IN EA 709/02 IN EP 282/01 IN ARC.1729/1988-89 of MUNSIFF COURT, OTTAPPALAM .................... REVN. PETITIONER(S)/RESPONDENT/DH: ---------------------------------- THE SECRETARY, KULUKKILIYAD SERVICE CO-OPERATIVE BANK, KULUKKILIYAD, OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENT(S)/PETITIONER/JD: ---------------------------- VENGASSERY KOYA, S/O.ENU, KULUKKILIYAD AMSOM, KOTTAPPURAM DESOM, OTTAPALAM TALUK. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.257 OF 2004 (E) ----------------------------------- Dated this the 7th day of December, 2009 O R D E R The revision is directed against the order dated 30.6.2003 in E.A.No.709 of 2002 in E.P.No.282 of 2001 in ARC No.1729 of 88-89 of the learned Munsiff, Ottapalam. Decree holder, a Co-operative bank, is the revision petitioner. The judgment debtor had filed the above execution application for recording satisfaction of the decree debt contending that two items of his immovable property with the liability covered under the award executed had been purchased in auction in execution of another award by the very same decree holder Co-operative bank, and, thereby, satisfaction of the decree debt in the present award also had to be recorded. Negativing the objections raised by the decree holder, the court below allowed that application under the impugned order. Propriety and correctness of that order is challenged in the revision. CRP.257/04 2 2. Admittedly, the judgment debtor was proceeded simultaneously for realisation of the decree debt due under two A.R.C awards by the decree holder. Out of the four items of his properties attached in execution in one of the awards, namely, A.R.C.No.1714/88-89, two items of his properties were brought to sale with the sale proclamation settled and published showing the outstanding liability under the other award also, A.R.C.No.1729/88-89 over such properties, and in auction, those two properties with the liabilities so shown were purchased by the decree holder Co-operative bank. After such sale, in execution of the award in A.R.C.No.1729/88-89, the decree holder proceeded with steps for sale of the remaining two items of the properties belonging to the judgment debtor. At that stage, the judgment debtor moved an application for recording satisfaction of the decree debt contending that the liabilities of the award executed in the present execution had been taken into account in fixing the upset price over the two items of properties in the execution of the previous award, A.R.C.No.1714/88-89, and the auction purchaser, the decree holder, who had purchased CRP.257/04 3 the properties in such sale had to clear off the liability under the present award, if any, and the other properties of judgment debtor cannot be proceeded as if liabilities still subsisted under the award to the decree holder. The learned Munsiff taking note of the provisions covered by Section 55 (5) (d) of the Transfer of the Property Act, 1882, accepting the case presented by the judgment debtor concluded that with the encumbrance, the liability under the present award due from the judgment debtor, sale was conducted in the execution proceedings of the previous award (A.R.C.No.1714/88-89) and the decree holder having purchased two items of properties with such liability cannot proceed against the judgment debtor and his properties as if the liabilities subsisted for realisation. Though the learned counsel for the revision petitioner/decree holder contended that the entire decree debt due under the award in execution of the present proceedings had not been fully satisfied by the sale of the two items of properties in the execution proceedings of another award, I find that cannot be given much significance. The purchaser got sale of the property CRP.257/04 4 with the encumbrance subsisting, that is, the liability of the judgment debtor in respect of the award now sought to be executed in the present execution petition. Knowing fully well of that liability, he purchased the property in sale which indicate that the sale price was arrived at giving credit to the outstanding liability under the present award in execution also. Having purchased the property with some encumbrances, after the sale, the purchaser has to clear off the liability, and such liability cannot be realised from the judgment debtor when the purchaser and the decree holder happens to be the same person. There is no merit in the revision, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp