IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 CRP.No. 792 of 2008() --------------------- AGAINST THE ORDER DATED 01/09/2008 IN IA 1014& 1906/2008 DTD.1/09/08 AND 3376 AND 3378 OF 2008 DTD. 20/09/08 IN OS.259/2005 of II ADDL.SUB COURT,KOZHIKODE .................... PETITIONERS/PETITIONERS: -------------------------------------------- 1. NEDUMPRATH BASHEER, S/O.POCKER HAJI, VELLUR AMSOM, CHALAPPURAM DESOM, VATAKARA TALUK. 2. KINARULLA PARAMBATH IBRAHIM HAJI, S/O.KUNHABDULLA HAJI, MOKERI AMSOM, VATAKARA TALUK. 3. KINARULLA PARAMBATH AMMAD, S/O.KUNHABDULLA HAJI, MOKERI AMSOM, VATAKARA TALUK BY POWER OF ATTORNEY, KINARULLA PARAMBATH IBRAHIM HAJI, S/O.KUNHABDULLA, 2ND PETITIONER. 4. CHERIYA MALOL AMMAD, S/O.MOOSA, PONMERI AMSOM, PARAMBIL DESOM, VATAKARA TALUK. BY ADVS. SMT.PRABHA R.MENON, MR.M.KRISHNAKUMAR. RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. CHOLAPURATH PRABHAKARAN, S/O.CHOLAPPURATH KORU, LAKSHMI NIVAS, PAROPPADI, CHEVAYUR AMSOM, DESOM, KOZHIKODE. 2. BROTHER, CHOLAPPURATH RAVEENDRAN -DO- 3. BROTHER, CHOLAPPURATH ASOKAN, -DO- KSS ...2-/ ...2..... CRP.NO.792/2008 4. SISTER, CHOLAPPURATH GIRIJA YASODHARAN, -DO- 5. SISTER, VAJAJA HARIDAS, -DO- 6. SISTER CHOLAPPURATH SHYLAJA RAJAGOPAL, ..DO... 7. BROTHER CHOLAPPURATH DR.GOKULAN, ...DO..... 8. BROTHER, CHOLAPPURATH DR. MOHANAN, ..DO.... R1 BY ADV. MR.T.G.RAJENDRAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/09/2009 ALONG WITH CRP NO. 793 OF 2008, CRP NO. 794 OF 2008 AND CRP NO. 795 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- C.R.P.Nos.792, 793, 794 & 795 of 2008 --------------------------------- Dated this the 9th day of September, 2009 O R D E R The decree holder in O.S.No.259 of 2005 on the file of the Sub Court, Kozhikode has filed the above four revisions. Suit was one for specific performance of an agreement for sale in which a decree was passed on the consensus arrived at by the parties and pursuant to directions issued by the judgment of a Division Bench of this Court in F.A.O.No.237 of 2005. Property covered by the suit has an extent of 31 cents. The decree contemplated of execution of sale in two phases. First phase for an extent of 15 cents and second phase for the remaining 16 cents. Phase I sale was effected on payment of Rs.107 Lakhs on the undertaking given by the respondents/defendants that they would clear off all encumbrances and liabilities over the whole property of 31 cents. The amount of Rs.107 Lakhs was released to the defendants on such undertaking by order dated 24.8.2007. Subsequently, petitioners produced a draft sale deed for completion of the second phase of sale. Initially the draft sale C.R.P.Nos.792, 793, 794 & 795 of 2008 2 deed was approved by the court but, when sale deed was produced in tune with the draft approved, it was noticed by the court that the deed contained terms to the effect that the property is free from encumbrances which was factually incorrect. Noticing the defect the learned Sub Judge suo motu reviewed the earlier order passed for approving the draft sale deed. Petitioners thereupon moved an application as I.A.No.1906 of 2008 to initiate action against the respondents for flouting the court's direction to clear off the encumbrances as undertaken before the court for getting release of the amount of Rs.107 Lakhs covered by the first phase of sale. The learned Sub Judge after hearing both sides allowed that application by order dated 1.9.2008. But, in that order no time limit was fixed for clearance of the encumbrances by the respondents. Petitioners thereupon moved an application for reviewing that order to fix a time limit for the defendants to clear off the encumbrances over the property to complete phase II sale. The review petition filed as I.A.No.3376 of 2008, after hearing both sides was rejected by the C.R.P.Nos.792, 793, 794 & 795 of 2008 3 court. Petitioners have filed C.R.P.793 of 2008 against the order passed in I.A.No.1906 of 2008, and C.R.P.No.792 of 2008 against the order passed in the review petition as aforesaid. As against the order passed by the court below suo motu reviewing the order of approval of draft sale deed petitioners have filed a review petition as I.A.No.3378 of 2008. That application was also dismissed by the learned Sub Judge. The order passed by the court below suo motu reviewing the order approving the draft sale deed is challenged in C.R.P.No.794 of 2008 and as against the order passed in the review petition 3378 of 2008, C.R.P.NO.795 of 2008 is filed. Since all these four revisions emerge from the same set of facts they are heard and disposed by this common order. 2. I heard the learned counsel on both sides. 3. The facts involved are not under dispute. Admittedly, the respondents collected the sale price of Rs.107 Lakhs on completion of the first phase of sale giving an undertaking before the court that they would clear off whatever encumbrances and C.R.P.Nos.792, 793, 794 & 795 of 2008 4 liabilities subsisting over the property so as to complete the second phase of sale. It is also not in dispute that the sale price in respect of the second phase of sale is also under deposit of the court i.e., a sum of Rs.59 Lakhs. It is submitted by the learned counsel for the petitioners that a sum of Rs.20 Lakhs paid as advance to the sale price also form part of the sale price for the second phase of sale. Whatever that be, admittedly, the respondents have not cleared off the encumbrances and liabilities over the properties and then the second phase of sale could not be completed. The learned counsel for the respondents submitted that some proceedings are pending as to determination of what exactly is the amount due towards the ESI authorities and till such determination the respondents are unable to clear off the liabilities. Pursuant to a writ petition filed by the respondents, it is submitted, a direction had been given to the learned Sub Judge in another proceedings to determine what exactly is the amount due towards ESI authorities so that such amount could be cleared off from the amount deposited in a land C.R.P.Nos.792, 793, 794 & 795 of 2008 5 acquisition proceeding relating to some other property belonging to the respondents. So far as the completion of the second phase of sale in the absence of any prohibitory order or stay from any court, the dispute canvassed by the respondents as to the quantum of liability to be discharged would not relieve them from the undertaking given before the court while collecting the entire amount of Rs.107 Lakhs, the sale price for completion of the first phase of sale. I do not find any impropriety or incorrectness in the order passed by the learned Sub Judge in reviewing the order passed approving the draft sale deed when it was noticed later that the draft sale deed contained terms indicating that the property was free from encumbrances which in fact is not correct. It is also seen that subsequent to the approval of the draft sale deed on stamp paper worth more than Rs.10 Lakhs, the sale deed was prepared by the petitioners to complete the second phase of sale. That also has to be taken into consideration in the given facts of the case as to what should be the directions/orders to be issued for completion of the second phase of sale. In the C.R.P.Nos.792, 793, 794 & 795 of 2008 6 given facts of the case, I find the respondents have to be directed to clear off the encumbrances outstanding on the property covered by the decree within a time limit fixed by the court as they had got release of the entire amount of Rs.107 Lakhs for the first phase of sale giving undertaking to clear off encumbrances. The court below is directed to grant respondents three weeks time from the date of receipt of a copy of this order to clear off the encumbrances remaining over the property. In case the encumbrances are not cleared within the time so fixed and granted by the court, the court below shall pass appropriate orders enabling the petitioners to clear off the encumbrances remaining over the property from the amount already in deposit as sale price before the court. Once the encumbrances are so cleared whether directly by the respondents or by the petitioners in the matter indicated, the court below shall pass appropriate orders for execution of the sale deed on the stamp paper already produced by the petitioners before the court. I make it cleat that the directions/orders given for completion of the sale in tune with C.R.P.Nos.792, 793, 794 & 795 of 2008 7 the decree will not in any way affect or impeach the right of the respondents in challenging the quantum of amount due from them towards the ESI authorities or any other authority in appropriate proceedings as provided by law. However, I make it clear that the time limit fixed and the direction given for completion of the sale shall be scrupulously followed by the court below. Revision petitions are disposed in the manner indicated above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-