IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 WP(C).No. 22300 of 2009(O) -------------------------- OS.36/1997 of SUB COURT, HOSDRUG .................... PETITIONER/DECREE HOLDER: ---------------------------- V.GOPI, S/O.KOTTAN, ADVOCATE, PUTHIYAPURAYIL HOUSE, KOTTACHERRY, BALLA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. MR.JAWAHAR JOSE RESPONDENTS/THIRD PARTY AND JUDGEMENT DEBTOR: ----------------------------------------------- 1. DR.BHASKARAN, S/O.K.P.V.KANNAN, MUCHILOT, AJANOOR, HOSDURG TALUK, KASARAGOD DISTRICT, (REP. BY POWER OF ATTORNEY HOLDER, N.NARAYANAN, S/O.N.V.KUNHIRAMAN, NALAPADATH HOUSE, AJANOOR, HOSDURG TALUK, KASARAGOD DISTRICT. 2. K.V.BABU, S/O.K.V.KOTTAN, AUTO WORKS SHOP, NORTH KOTTACHERRY, HOSDURG TALUK, KASARAGOD DISTRICT. ADV. MR.GRASHIOUS KURIAKOSE FOR R-1 MR.M.M.ANTO FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22300 of 2009(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: ORDER IN E.A.NO.139/2008 IN E.P.NO.111/2006. RESPONDENTS' EXHIBITS: RXT.R1(a): COUNTER STATEMENT DATED 3.1.2009 SUBMITTED IN E.A.NO.139/2008 EXT.R1(b): DRAFT SALE PAPER DATED 17.9.2007. EXT.R1(c): ATTACHMENT PETITION DATED 20.12.1999. EXT.R1(d): POWER OF ATTORNEY DATED 10.10.2008. EXT.R1(e): EXECUTION PETITION WITH ORDERS ON VARIOUS DAYS. EXT.R1(f): ASSIGNMENT DEED DATED 24.12.1999. EXT.R1(g): PRIOR TITLE DEED DATED 20.4.1995. EXT.R1(h): MORTGAGE DEED DATED 15.7.1995. EXT.R1(i): ASSIGNMENT DEED DATED 29.9.2000. ......... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.22300 Of 2009 ---------------------- Dated this the 15th day of March, 2011. J U D G M E N T The petitioner is the decree holder in E.P.No.111/2006 in O.S.No.36/1997 on the file of the Sub Court, Hosdurg. The writ petition is filed challenging the order dated 24.7.2009 in E.A.No.139/2008 in the above said E.P. The 2nd respondent is the judgment debtor and the first respondent is the purchaser from the judgment debtor. Petitioner is the plaintiff in O.S.No.36/1997 on the file of the Sub Court, Hosdurg. Suit filed for money was dismissed by the trial court. The lower appellate court granted a decree in favour of the plaintiff and allowed him to realise an amount of Rs.1,52,475/- with interest from the second respondent and his assets. The property in dispute was attached during the pendency of the suit and subsequently the attachment order was made absolute. Intimation was also served to the Sub Registrar Office. Subsequently, the suit was dismissed. During the pendency of the appeal preferred by the plaintiff, the second respondent who is the sole defendant in the suit sold the property to the first respondent at a time when there is no attachment over the property. The appeal preferred ::2:: W.P.(C).No.22300 Of 2009 as A.S.No.18/99 filed by the plaintiff was allowed and a money decree was passed. 2. The petitioner filed E.P.No.111/2006. In the E.P. the first respondent purchaser was also impleaded as a party. The execution petition was filed with a prayer to attach the property which originally belonged to the judgment debtor, subsequently sold to the first respondent purchaser. Though the petitioner filed I.A.No.484/1999 along with the appeal for attachment of the property under Order XXXVIII Rule 5 of the Code of Civil Procedure, no order has been passed by the appellate court. The appellate court subsequently passed a decree. In fact, the petitioner along with the appeal moved an application for attachment stating that the defendant in the suit intends to sell his property to the first respondent. But, no order was passed by the appellate court and subsequently the defendant sold the property to a third person who is the first respondent. 3. In the execution petition the purchaser (first respondent) filed E.A.No.139/2008 under Section 151 of the CPC to exempt the property under purchase from attachment and sale ::3:: W.P.(C).No.22300 Of 2009 for realising the decree amount. The impugned order was passed by the execution court in E.A.No.139/2008. The court allowed the prayer of the purchaser. 4. The court recorded oral and documentary evidence. The power of attorney holder of the first respondent was examined as PW1. It is contended by the learned counsel for the petitioner that the power of attorney holder has no direct knowledge about the transaction of sale on 24.12.1999. The power of attorney was executed some years later in favour of PW1. PW1 has got only hearsay knowledge about the nature of the transaction. Annexure 1 is the sale deed executed by the judgment debtor in favour of the first respondent/purchaser. The first respondent/purchaser who filed E.A.No.139/2008 has no case that he was physically present at the time of transaction. The evidence tendered on the petitioner’s side shows that the brother of the purchaser is the person who arranged the sale transaction, who had knowledge about the real nature of the transaction. It is said that the purchaser was in the Gulf country during purchase. The purchaser was not examined. His brother ::4:: W.P.(C).No.22300 Of 2009 who knew the real nature of the transaction was not examined. Only the power of attorney holder was examined. The power of attorney holder was not in a position to appraise the court about the real nature of the transaction because admittedly, he has no knowledge about the transaction at the time of purchase. The learned counsel for the petitioner/decree holder relying on Janki Vashdeo v. Indus Ind Bank (2002(5)KLT 265) contended that the power of attorney holder is not competent to adduce evidence regarding the nature of transaction since he is not a person having knowledge about the transaction. Therefore, his evidence should have been discarded by the court below. The Apex Court in the decision cited above held that “acts” done by the power of attorney holder would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can ::5:: W.P.(C).No.22300 Of 2009 have a personal knowledge and in respect of which the principal is entitled to be cross-examined. 5. The learned counsel for the petitioner/decree holder submits that the property was not attached nor any order was passed for sale till date. Only if the property is attached a person aggrieved can file a claim petition under Order XXI Rule 58 of the CPC. If the property is attached and to be sold the learned counsel submits that the remedy open to him is to file a petition under Order XXI Rules 89, 90, 97 or 99. In these circumstances the learned counsel submits that the application filed under Section 151 of the CPC is not maintainable. The learned counsel also referred to the decision reported in State of Uttar Pradesh and others v. Roshan Singh and others (2008 (2) SCC 488) and contended that when there is specific provision in the CPC for seeking relief, a person is not entitled to seek aid of provisions under Section 151 of the CPC. The learned counsel submits that the very application filed under Section 151 of the CPC is not maintainable since the purchaser has got remedy under the CPC whenever the property is attached or sold. ::6:: W.P.(C).No.22300 Of 2009 6. The learned counsel for the purchaser submits that in execution a property cannot be sold without prior attachment unless there is charge upon it. The question of maintainability of the petition and the question as to whether there is sufficient proof of evidence in support of the contentions raised by the purchaser are not examined by the court with reference to the principles of law laid down by the Apex Court which are referred above. In these circumstances, this Court is of the view that the matter requires reconsideration. Learned counsel for the first respondent also submits that he had adduced evidence to prove that he is a bonafide purchaser of the property that there is no sufficient contra evidence adduced by the decree holder to prove malafides in the transaction. According to him the purchaser is not liable for the decree and the decree amount cannot be realized by resorting to attachment and sale of the property which was purchased by him and the learned counsel submits that the property is not liable to be proceeded against by way of attachment or sale. ::7:: W.P.(C).No.22300 Of 2009 In the facts, circumstances and the principles of law stated above, the order under challenge is set aside. The execution court shall decide E.A.No.139/2008 afresh after affording an opportunity to the parties to adduce further evidence, if any, if so advised. HARUN-UL-RASHID, Judge. bkn/-