IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 Ex.FA.No. 38 of 2008() ---------------------- AGAINST THE ORDER DATED 01/01/2008 IN EA.1314/01,1175/01 IN EP.NO.313 OF 1986 IN OS.69/1983 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT: (1ST RESPONDENT/AUCTION PURCHASER) --------------- P.RATNA GANDI, AGED NOT KNOWN S/O.UNNERI SEETHA NADUVILAKANDI PARAMBA, KOTTOOLI AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.T.SETHUMADHAVAN BY ADV. SRI.KODOTH PUSHPARAJAN RESPONDENT(S): CLAIM PETITIONERS/DECREE HOLDERS AND JUDGMENT BEBT --------------------- 1. K.P.TESSY, AGED 34 YEARS, D/O.KORUKUTTY, RATNA NIVAS, NAGARAM AMSOM DESOM, KOZHIKODE. 2. K.P.RATNA SINGH, AGED 33 YEARS, S/O.KORUKUTTY, RATNA NIVAS, NAGARAM AMSOM DESOM, KOZHIKODE. 3. THURUSUNKAL THRESYAMA @ SOPHIYA, W/O.LATE BHAGAT SINGH, AGED 31 YEARS, KALATHINKUNNU AMSOM DESOM, KOZHIKODE. 4. SHOBHIKA, AGED 9 YEARS (MINOR), D/O.LATE BHAGAT SINGH, KALATHINKUNNU AMSOM DESOM, KOZHIKODE. 5. GOPIKA, AGED 7 YEARS (MINOR), D/O.LATE BHAGAT SINGH, -DO- -DO- (LEGAL HEIRS OF APPLICANTS 4 & G REPRESENTED BY THEIR GUARDIAN 3RD APPLICANT THRESYAMMA). 6. PARAKANDY VASU, S/O.RARICHUTTY, KACHERI AMSOM DESOM, KOZHIKODE. Ex.F.A.No.38 of 2008 : 2 : 7. PARAKANDY BALAN, S/O.RARICHUTRY, KACHERI AMSOM DESOM, KOZHIKODE. 8. PARAKANDY KARUNAKARAN, S/O/. RARICHUTTY, KACHERI AMSOM DESOM, KOZHIKODE. 9. KALVILPURAYIL SOBHANA, W/O.KORUKUTTY, KACHERI AMSOM DESOM, KOZHIKODE. ADDl.R10 MRS.MEENA S RAMANATHAN, W/O.RAMANATHAN, RESIDING AT KASABA AMSOM AND DESOM OF KOZHIKODE TALUK. (IMPLEADED AS PER ORDER DATED 23.3.2009 IN I.A.No.1266/2008) ADV. SRI.E.R.VENKATESWARAN FOR ADDL.R10 SMT.T.D.RAJALAKSHMI FOR ADDL.R10 SRI.K.JAYAKUMAR FOR ADDL.R SRI.P.B.KRISHNAN FOR ADDL.R SRI.JOHN VARGHESE FOR R1 TO R5 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2009, ALONG WITH EXFA NO. 39 of 2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.S.GOPINATHAN, JJ. ------------------------------- Ex.F.A.Nos.38, 39, 40, 43 and 44 of 2008 ------------------------------- Dated this the 23rd March, 2009 J U D G M E N T Raman, J. Ex.F.A.No.38 of 2008 arises out of the order in E.A.No.1314/2001 in E.A.No.1175 of 2001 in E.P.No.313 of 1986 in O.S.No.69/1983; Ex.F.A.No.39 of 2008 against the order in E.A.No.1322 of 2001 in E.A.No.1169 of 2001 in E.P.No.310 of 1986 in O.S.No.71 of 1983; Ex.F.A.No.40 of 2008 against the order in E.A.No.1316 of 2001 in E.A.No.1173 of 2001 in E.P.No.312 of 1986 in O.S.No.70 of 1983; Ex.F.A.No.43 of 2008 against the order in E.A.No.1324 of 2001 in E.A.No.1167 of 2001 in E.P.No.309 of 1986 in O.S.No.66 of 1983; and Ex.F.A.No.44 of 2008 against the order in E.A.No.1318 of 2001 in E.A.No.1171 of 2001 in E.P.No.311 of 1986 in O.S.No.72 of 1983, on the file of I Additional Sub Court, Kozhikode. Ex.F.A.Nos.38,39,40,43 & 44 of 2008 2 2. The appellant is the auction purchaser who purchased in auction the two items of property sold in public auction in execution of money decree. The sale proceeds were deposited and the execution was recorded as satisfied. The court below, in such circumstances, lifted the attachment in respect of two other items. As far as the present two items are concerned, before the sale was effected, the decree holder had obtained permission from I Additional Sub Court, Kozhikode, in O.S.No.261 of 1981, a partition suit which was pending between the various legal heirs of Korukutty and the respondents herein are all parties to the said proceedings. By Ext.B2 order, permission was granted to the decree holder to proceed with the execution of the present money claim and the respondents were in the party array (except respondents 4 and 5, who were not born at that time). It is seen that no serious objections were raised by the respondents in the application seeking permission for sale of the properties in question. Thus, they were aware of the entire sale proceedings in the execution and it is thereafter that the present application is filed. Ex.F.A.Nos.38,39,40,43 & 44 of 2008 3 3. As per Ext.B1 proceedings, their earlier claims were already rejected and became final, since some of the claims were barred by limitation. Now that the properties have been purchased by a third party, the auction purchaser, there will be no justification to set aside the sale in excess of the share of the judgment debtor. It must be noticed that claims preferred are none other than the children of the judgment debtor. In some of the connected matters, even when such claims were preferred by other share holders, the court below has dismissed the same, and we have also upheld the judgment of the court below by separate order. Now the position is reverse. Here, the claimants are none other than the children of the judgment debtor. The court below, however, did not consider the point favourably in the connected matters, whereby, the claims of the other share holders were rejected, who had also raised similar contentions. We find that the court below erred in allowing the execution applications, in the above facts and circumstances of the case. Ex.F.A.Nos.38,39,40,43 & 44 of 2008 4 4. It may however be said that if the property sold is in excess of the share allotted to Sobana, necessarily, the other sharers or legal heirs of the Sobana could very well seek for equitable relief, if they are otherwise entitled to, in the partition suit, for allotment of other property, if any, belong to Sobana. We only clarify that the dismissal of their claims in the present proceedings will in no way affect their claim for equitable relief in other proceedings. 5. The additional 10th respondent has come up only because of the interim orders passed by this Court to maintain status quo. She has placed on record by stating that she has purchased 1/7th share of Sobana, allotted to her in the partition suit, in court auction. In the wake of the interim order, further proceedings in the partition suit were stayed. It is stated that the court below had not delivered the property to her. Since we are disposing of the appeals, there is no need to continue the interim order. We make it clear that the interim order passed is to preserve the status quo, so that it may not affect the final Ex.F.A.Nos.38,39,40,43 & 44 of 2008 5 relief that we may grant in this proceedings. Now that the appeals are disposed of, it is open to the 10th respondent to work out her remedies in the partition suit. P.R.RAMAN, JUDGE P.S.GOPINATHAN, JUDGE. nj.