IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 AS.NO. 383 OF 1997(E) --------------------- {in OS.229/1993 OF THE PRINCIPAL SUB COURT, KOCHI} .................... APPELLANT(S)/DEFENDANTS 5, 7, 7 & LEGAL HEIR OF 6TH DEFENDANT : 1. UNNIKRISHNAN, S/O.P.K.PRABHAKARAN, RESIDING AT OCHANTHURUTHU, ELAMKUNNAPUZHA VILLAGE, COCHIN TALUK. 2. PRAKASAN, S/O.RAGHAVAN, BUSINESS, PANOOR HOUSE, PUTHUVYPE, SOUTH MALIPURAM, COCHIN TALUK. 3. JOSEPH J. VAYALATT, S/O.LATE V.T.JOSEPH, VALAYATT HOUSE, FORT COCHIN, COCHIN TALUK. 4. ANNAKUTTY JOSEPH, W/O LATE V.T.JOSEPH, VALAYATT HOUSE, FORT COCHIN, COCHIN TALUK. BY ADV. SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN RESPONDENT(S) 1 TO 8/LEGAL HEIRS OF PLAINTIFF: ------------------------------------------------------------ 1. KUNHIBEEVI, W/O.LATE ABOO, RESIDING IN HOUSE NO.8/2128, PUTTANVEETTIL, KELOTHUMUKKU, KAPPALANDY MUKKU, MATTANCHERRY VILLAGE, COCHIN TALUK. 2. P.A.RASHEED, S/O. LATE P.K.ABOO, DO. DO. 3. P.A.MOHAMMED, S/O. LATE P.K.ABOO, DO. DO. AS.NO. 383 OF 1997 :: 2 :: 4. P.A.SALIM, S/O. LATE P.K.ABOO, DO. DO. 5. P.A.SABEENA, W/O.HANAF, D/O. LATE P.K.ABOO, DO. DO. 6. P.A.ZEENATH, W/O.RAHIM, D/O. LATE P.K.ABOO, DO. DO. 7. P.A.SHAFEEQ, S/O. LATE P.K.ABOO, DO. DO. 8. P.A.ASEERA, W/O.MUHAMMED THAMIM, D/O.LATE P.K.ABOO, DO. DO. RESPONDENTS 9 TO 12/DEFENDANTS 1 TO 4 9. STATE BANK OF INDIA, BRANCH OFFICE, COCHIN-1, REPRESENTED BY ITS MANAGER. 10. P.K.PRABHAKARAN,RESIDING AT OCHANTHURUTH, “DIED” ELAMKUNNAPUZHA VILLAGE, COCHIN TALUK. 11. SMT.THILOTHAMA, W/O.P.K.PRABHAKARAN, DO. DO. 12. P.K.SUDHAKARAN, S/O.PEEDIACKAL KRISHNAN, “DIED” NEENA COLD STORAGE, PERUMANOOR, KOCHI-15. ADDITIONAL 13 TO 18/OTHER LEGAL HEIRS OF 6TH DEFENDANT: 13. THOMAS J. VAYALATT, S/O.LATE V.T.JOSEPH, VAYALATT HOUSE, FORT COCHIN, COCHIN TALUK. 14. ROY J. VAYALATT, S/O.LATE V.T.JOSEPH, DO. DO. 15. RAJU J. VAYALATT, S/O.LATE V.T.JOSEPH, DO. DO. 16. RAJINA J. VAYALATT, D/O.LATE V.T.JOSEPH, DO. DO. 17. RUBY J. VAYALATT, D/O.LATE V.T.JOSEPH, DO. DO. 18. REENA J. VAYALATT, D/O.LATE V.T.JOSEPH, DO. DO. ADDITIONAL R19 TO R23 IMPLEADED: 19. BEENA SURESH, D/O.LATE P.K.PRABHAKARAN, OCHANTHURUTHU, ELAMKUNNAPUZHA VILLAGE, COCHIN TALUK. AS.NO. 383 OF 1997 :: 3 :: 20. SANAMMA, W/O.SUDHAKARAN, D/O. LATE P.K.PRABHAKARAN, THAYYIL HOUSE, OCHANTHURUTHU (PO) 21. BINDHU, W/O.SHABU, D/O. LATE P.K.PRABHAKARAN, MULLAZHATHU HOUSE, KOTTAPURAM, KODUNGALLUR. 22. SINDHU WILSON, W/O.WILSON, D/O. LATE P.K.PRABHAKARAN, KADEPARAMBU HOUSE, KARIPPALAM, KOCHI-2. 23. DEEPA, W/O.KRISHNAKUMAR, D/O. LATE P.K.PRABHAKARAN, ELAMKUNNAPUZHA VILLAGE, COCHIN TALUK. ADDL.R19 TO 23 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED R10 VIDE ORDER DT. 29.07.04 ON CMP NO.4095/2001. ADDITIONAL R24 TO R27 IMPLEADED: 24. NABEESA, W/O.LATE P.K.SUDHAKARAN, SEENA COLD STORAGE, PERUMANOOR, KOCHI-15. 25. SEEMA, D/O.LATE P.K.SUDHAKARAN, DO. DO. 26. SUJITH, SON OF LATE P.K.SUDHAKARAN, DO DO. 27. SUBISH, S/O LATE P.K.SUDHAKARAN, DO DO. ADDL.24 TO 27 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED R12 VIDE ORDER DT. 29.07.04 ON IA 549/03. ADV. SRI.N.SUBRAMANIAM JOSEPH J THAYAMKERIL SRI.M.S.NARAYANAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/07/2010, THE COURT ON 21/01/2011 DELIVERED THE FOLLOWING: AS.NO. 383 OF 1997 :: 4 :: ORDER ON I.A.NO.1661/01 IN A.S.NO. 383 OF 1997 DISMISSED. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) 21.01.2011. JUDGE sk/- //true copy// P.S. To Judge. THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- A.S.No.383 of 1997 --------------------------------------- Dated this the 21st day of January, 2011 JUDGMENT S.S.SATHEESACHANDRAN, J. The appellants are defendants 5, 7, 8 and some among the legal representatives of the 6th defendant, in O.S.No.229/93 on the file of the Principal Sub Court, Kochi. Respondents 1 to 8 are the legal representatives of the plaintiff viz., P.K.Aboo. 9th respondent is the 1st defendant in the above suit and respondents 10 to 12 are defendants 2 to 4 in the suit. Respondents 10 and 12 passed away during the pendency of the appeal and their legal representatives have been impleaded as respondents 19 to 23 and 24 to 27 respectively. Respondents 13 to 18 are the other legal representatives of the 6th respondent in the suit. 2. The appeal is directed against the decree granted by the court below setting aside the court sale in A.S.No.383 of 1997 :: 2 :: O.S.No.67/81 of the Principal Sub Court, Kochi, and directing re-delivery of some of the properties covered by that sale, four items described as B schedule in the present suit. 3. Short facts involved in the case necessary for disposal of the appeal can be summed up thus: The 1st defendant, a statutory bank, instituted O.S.No.67/81 against defendants 2 to 4 for recovery of the loan advanced to the 2nd defendant on the basis of mortgage of the properties of defendants 3 and 4, by sale of the properties. 12 items were included in the above suit as the mortgaged properties. Items 1 to 4 in O.S.No.67/81 are the B schedule properties in the present suit, O.S.No.229/93. Plaint A schedule properties in the suit are items 5 to 12 in O.S.No.67/81. Before institution of the above suit by the bank but long after the mortgage over item Nos.1 to 12 in its favour, another creditor of the 2nd defendant, M/s.Mettur Beard Sell Limited had instituted a suit, O.S.No.102/76 A.S.No.383 of 1997 :: 3 :: against the 2nd defendant. In the decree passed in that suit, B schedule properties in the present suit (items 1 to 4 in O.S.No.67/81) were brought to sale, and the present plaintiff, Sri.P.K.Aboo as the highest bidder in the auction purchased them. Those properties were later delivered over to him through court. Meanwhile, the suit, O.S.No.67/81 filed by the 1st defendant bank on 15.4.1981 was decreed. When the decree holder/1st defendant bank in the present suit moved for execution of the decree by sale of the mortgaged properties, the plaintiff had resisted the sale over B schedule, (items 1 to 4 in O.S.No.67/81). His challenges being negatived, the sale proceeded in which 'B' schedule properties were purchased by defendants 5 to 8. Though the plaintiff had challenged the delivery of B schedule properties to defendants 5 to 8, on various grounds, such attempts were unsuccessful. The plaintiff thereafter filed the present suit O.S.No.229/93 for a declaration that the court sale of the properties in O.S.No67/81 is illegal and A.S.No.383 of 1997 :: 4 :: vitiated by fraud and irregularity in the publishing and conducting of the sale, and, thus, liable to be set aside, and for a permanent prohibitory injunction to restrain the defendants from alienating or creating any charge over B schedule properties. A decree for re-delivery of B schedule was also sought for. 4. Among the defendants, the 1st defendant bank, 4th defendant, 5th defendant, and defendants 6 to 8 together, and 7th defendant separately, filed written statements, among whom, the 4th defendant supported the case of the plaintiff that the court sale is vitiated by fraud, and others resisted the claims canvassed raising manifold contentions in which the maintainability of the suit was also challenged in view of the orders passed by the execution court in O.S.No.67/81. The present suit is barred by res judicata was one among the contentions raised by the 1st defendant. Sale over B schedule items on the basis of the decree in O.S.No.102/76 by which the plaintiff claimed right over those properties as A.S.No.383 of 1997 :: 5 :: the auction purchaser, who had obtained delivery of such properties in such sale, was also impeached by the 1st defendant contending that B schedule properties were subject to the mortgage created in favour of the bank much earlier, and the suit [O.S.No.67/81] by the bank having been filed earlier to the sale held under the decree passed in O.S.No.102/76, such sale is hit by lis pendens. Defendants 5, 7, 6 and 8 in their written statements contended that the sale conducted in O.S.No.67/81 was proper, legal and valid and on no ground it was liable to be declared as null and void. They also contended that such sale could not be impeached in a separate suit at the instance of the plaintiff. 5. On the pleadings of the parties as above, the court below raised mainly the following issues: Whether the court sale impeached is vitiated by material irregularity and fraud in publishing and conducting of such sale and as to whether the plaintiff is entitled to the declaration and injunction sought for. On the issues so settled, both sides let A.S.No.383 of 1997 :: 6 :: in evidence, plaintiff examining Pws.1 to 6 and exhibiting Exts.A1 to A33, and the defendants one witness, DW.1 and towards documentary evidence Exts.B1 to B8. After having considered the pleadings with reference to the evidence let in by the parties and hearing the counsel on both sides, the court below arriving at the conclusion that the court sale impeached is vitiated by material irregularity and fraud, in publishing and conducting it, decreed the suit. The plaintiff was granted the declaration sought for setting aside the sale, and also re-delivery of the property by restitution under Section 144 of the Code of Civil Procedure, from defendants 5 to 8. The defendants 5, 7 and 8 with some of the legal representatives of the 6th defendant, all of them together, have preferred the present appeal challenging the legality and correctness of the judgment rendered by the court below setting aside the court sale in execution of the decree passed in O.S.No.67/81. A.S.No.383 of 1997 :: 7 :: 6. We heard the learned Senior Counsel Sri.M.C.Sen for the appellants, Advocate Sri.N.Subramanian for respondents 1 to 8 and Advocate Sri.Joseph Thayankeril for the 9th respondent. Both sides have argued extensively on various aspects touching upon the conducting and publishing of the sale in execution of the decree in O.S.No.67/81, which has been impeached in the suit as vitiated by fraud, material irregularity and illegality and thus null and void. After hearing the counsel at length and taking note of the controversies involved in the suit on which the parties have joined issues, we found that the first and foremost question to be considered relate to the entertainability of the suit challenging a court sale by a civil court de hors the provisions covered by Order XXI of the above Code. Counsel on both sides, on our bidding, have presented various facets involved in examining the maintainability of the suit challenging a court sale placing reliance on judicial authorities in support of the rival case presented. A.S.No.383 of 1997 :: 8 :: 7. A recapitulation of the admitted facts, as borne out by the pleadings and materials placed, has to be stated as to why the primary question to be considered in the appeal rests on the maintainability of the suit. A mortgage in favour of the first defendant bank in respect of the plaint properties A and B schedules subsisted when O.S.No.102/76 was instituted against the present 2nd defendant by M/s.Mettur Beard Sell Limited. Even before a decree was passed in the above suit, the above bank had filed a suit O.S.No.67/81 on 15.4.1981 for recovery of the money under the loan advanced to the 2nd defendant by sale of the mortgaged properties furnished as collateral security by defendants 3 and 4. A decree was passed in O.S.No.102/76 earlier in point of time, and B schedule properties in the present suit [4 items] brought to sale on 6.1.1982 in execution of that decree were purchased in the auction by the present plaintiff P.K.Aboo. That sale was confirmed on 10.3.1982. Those properties were delivered over to the A.S.No.383 of 1997 :: 9 :: plaintiff on 16.3.1985 and 2.4.1985. Suit filed by the bank O.S.No.67/81 was decreed on 8.1.1983 and in execution of that decree, at various stages, the plaintiff P.K.Aboo had resisted the steps for sale proceeded against the B schedule property for realisation of the decree debt. Plaintiff had filed an application E.A.No.141/86 in the execution proceedings of O.S.No.67/81 (E.P.79/84) seeking deletion of B schedule items which was sold and delivered over to him in execution of the decree in O.S.No.102/76. The execution court had dismissed that application but with a reservation that the obstructer/plaintiff will be entitled to the benefit under Section 61 of the Transfer of Property Act. Admittedly both the bank and also the plaintiff challenged the orders of the execution court in E.A.No.141/86 before this court by filing C.R.P.No.1480/87 and 295/88 respectively. Both revisions were dismissed by order dated 11.8.1989. After proclamation for sale of all the items were settled, the plaintiff moved another application as E.A.No.537/87 A.S.No.383 of 1997 :: 10 :: challenging the steps for sale of B schedule items and that was dismissed by the execution court. That was challenged in revision before this court by the present plaintiff. This court, confirming the order of the execution court directed it to proceed against B schedule property if only sale of A schedule properties was found insufficient to satisfy the decree debt due to the bank. Since the sale conducted over A schedule property was found to be insufficient, B schedule properties were also put to sale and those items were purchased by defendants 5 to 8 in such sale. Plaintiff, admittedly, filed an application under Order XXI Rule 89 of the Code of Civil Procedure after such sale. But since the application was not filed tendering the amount covered by the sale with the commission thereof, it was dismissed. Pursuant thereto, the sale being confirmed and sale certificate issued, the auction purchasers [defendants 5 to 8] applied for delivery of the properties. The delivery over B schedule was obstructed to by the plaintiff by filing several A.S.No.383 of 1997 :: 11 :: petitions, one after the other. Though no documentary materials tendered, at the hearing of appeal, the events that followed after issue of warrant for delivery were also referred to. The Amin deputed by the court had filed a report that delivery of B schedule was effected in execution of the warrant. Contending that there was no divesting of possession and physical possession was retained by him, the plaintiff moved an application before the execution court for annulling the report of the Amin. That application was dismissed, and against which a revision was filed before this court. The revision was disposed of upholding the finding of the execution court that the properties had been delivered over to the auction purchaser, but, reserving the right, if any, of the plaintiff to work out his remedies by way of appropriate proceedings. 8. The short question posed for consideration in the given facts of the case, is whether the plaintiff has to approach the execution court which passed the decree in A.S.No.383 of 1997 :: 12 :: O.S.No.67/81 in favour of the first defendant bank to impeach the court sale in execution of that decree and re- delivery of the property ordered thereon in favour of the auction purchasers, who had purchased B schedule in the auction, or, is the plaintiff empowered to file a separate suit to impeach such court sale and delivery on any ground whatsoever for a declaration that the court sale is void and for re-delivery of the property. 9. The learned counsel for the plaintiff Sri.Subramaniam relied on a number of authorities to contend that the suit is perfectly maintainable as he being a third party to the proceeding in O.S.No.67/81 he cannot be compelled to approach the execution court in which the decree passed in the above suit had been executed, moving an application under Order XXI Rule 99 of the Code. The decree passed in the above suit was not binding on the plaintiff as he was not a party to that suit and so, his right to impeach the court sale and the delivery in execution of the A.S.No.383 of 1997 :: 13 :: decree passed in that suit by way of a separate suit is a civil right, which is, in no way, interdicted by the procedure covered by Order XXI Rule 99 of the Code, is the submission of the learned counsel. Reliance is placed on by the counsel on Pavan Kumar v. K.Gopikrishnan {AIR 1998 AP 247} to submit that the remedy under Order XXI Rule 99 of the Code, is one among the remedies available to the person who was dispossessed in execution of a decree. The above rule cannot be interpreted or construed as placing a bar on instituting a fresh suit for possession, the view expressed in the aforesaid decision is relied by the counsel to contend that the present suit is maintainable. Canvassing support from Abdul Rashid Dar v. Mohamed Ismail {AIR 1989 J & K 48}, to contend that a third party, who has been dispossessed in execution of a decree “may make an application complaining of dispossession and in that event the court has to make an enquiry and if it finds A.S.No.383 of 1997 :: 14 :: merit in his claim, it has to restore its possession”, the learned counsel submitted that the above rule, is only an enabling provision and it does not place any impediment to the civil right of a third party to file a civil suit to protect his possession over an immovable property, which is proceeded against in execution of a decree, wherein he is not a party, and thus not binding on him. Placing reliance on M/s.Paramount Industries v. C.M.Malliga {ILR 91 Karnataka 254}, it is argued by the counsel that it is open to the person, who is in possession of an immovable property, who is not a party to the decree passed in respect of that property, to resist the execution thereof and establish his right, title and interest either by filing an application under Order XXI Rule 99 of the Code, after dispossession in execution, or to file a suit for declaration of his title and seek permanent injunction to resist the decree from dispossessing him from the property. He can sue for possession on the A.S.No.383 of 1997 :: 15 :: basis of his title, according to the counsel, if he fails to resist the execution or does not get an opportunity to resist execution, canvassing support from the aforesaid decision. Inviting attention to Tanzeem-e-Sufia v. Bibi Haliman {AIR 2002 SC 3083}, it is contended that the procedures provided for by Order XXI Rule 97 and 99 of the Code empowering the execution court to determine the obstruction to the decree in execution before delivery of possession or after such delivery do not impeach the right of a third party in possession to file a suit to protect his right and interest or possession over that property. Inviting attention to the observations of this court in Baburaj v. Vasanthi Devi {2008(4) KLT 761}, it is contended that the Apex Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal {AIR 1997 SC 856}, has only disallowed the right of strangers to the decree to make resistance or obstruction at the pre-delivery stage, and the aforesaid decision of the A.S.No.383 of 1997 :: 16 :: Apex Court does not foreclose the right of a stranger to a decree to file a fresh suit, according to the counsel. Reliance is also placed on A.M.Subbamma v. A.V.Kushalappa {2006 AIHC 2682 Karnataka High Court) by the learned counsel for the plaintiff to contend that when a suit is filed in respect of the property covered by the execution the plaintiff in such suit cannot maintain an application under Order XXI Rule 97 of the Code, as he has to adjudicate the merit of his claim in the suit, substantiating the relief canvassed therein. 10. The decisions referred to and relied by the learned counsel for the plaintiff other than Tanzeem-e- Sufia's case {AIR 2002 SC 3083} and Baburaj's case {2008(4) KLT 761} both cited supra, which shall be adverted to later, dealt with the right of a third party to a decree to establish his right over an immovable property otherwise than by recourse to the provisions of Order XXI of the Code, without taking note of the impact of the A.S.No.383 of 1997 :: 17 :: amendment to Rules 97 to 103 of Order XXI of the Code brought in 1976 under Act 104 of 1976 or the interpretation placed over such amendment by the Apex Court that even a third party has to move an application before the court in which the decree is executed to resist or obstruct its execution and his dispossession, and he can do so even before delivery is ordered or after dispossessed from the property, and that he cannot maintain a separate suit to establish his right, interest and title over the property, if it is so covered by the decree put in execution. In Noorduddin v. Dr.K.L.Anand {1995(1) SCC 242}, the Apex Court, after considering the scope and ambit of the amendment to the Code in respect of Order XXI Rules 97 to 104 under Act 104 of 1976, pointing out that the right to file a suit under Order XXI Rule 103 of the 1908 Code which was available earlier had been taken away under the above amendment has laid down in unmistakable terms that any person who A.S.No.383 of 1997 :: 18 :: claims any right, title or interest, whether or not he is a party to the decree, by virtue of the amendment to the above Rules under Order XXI of the Code has to pursue his remedies only under the relevant rule applicable under Order XXI for adjudication of his right, title and interest in the immovable property in execution and any decision thereof, which is deemed to be a decree, subject to the further challenge as provided by the Code, has to be treated as final and conclusive. The Apex Court in the above decision has held thus: “Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject A.S.No.383 of 1997 :: 19 :: to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Code of Civil Procedure Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution.” 11. Highlighting that the right to adjudication of a dispute whether it be in respect of right, title and interest of a party in an immovable property which, no doubt, is a substantive right, the Apex Court has held that it is only a procedural right to which no one has a vested right. Whatever be the substantive right of a party, the right to an A.S.No.383 of 1997 :: 20 :: adjudication of a dispute thereto is regulated by the procedure laid down by the legislature. The object of the law is primarily to meet out justice. The rules of procedure have been devised to decide the disputes to render substantive or at best substantial justice. By virtue of the amendment in 1976 to the Code the right to adjudication of the dispute in respect of a claim to right, title or interest of any person, after the passing of a decree with respect to that property, has to be decided by the court called upon to execute that decree in accordance with the procedure laid down under Order XXI Rules 97 to 103 of the Code, as may be applicable. If a third party to the decree on the plea that he being not a party to such decree can file