IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 OP(C).No. 1658 of 2011(O) AGAINST THE ORDER IN EA.34/2011 IN EP.43/2009 OF SUB COURT, KASARAGOD PETITIONER: K.S. ISMAIL, MANAGING PARTNER, SOUDA WOOD INDUSTRIES, EDANAD, SEETHANGOLI, KASARAGOD. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT: M.K. MAICHAEL AMBUNHI, AGED 58 YEARS, S/O. KURUVILA, MALIAKKAL HOUSE, NEENDOOR KARA, ONAMTHURUTH VILLAGE, KOTTAYAM, PIN - 683 001. ADV. SRI.M.J.THOMAS THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF ORDER DATED 17.3.2011 OF THE COURT OF THE SUBORDINATE JUDGE, KASARAGOD IN E.A.NO.34 OF 2011. EXT.P2 TRUE COPY OF E.P.NO.43 OF 2009. EXT.P3 TRUE COPY OF THE COUNTER FILED BY THE PETITIONER ON 15.2.2010 IN E.P.NO.43 OF 2009. EXT.P4 TRUE COPY OF E.A.NO.34 OF 2011 IN E.P.NO.43 OF 2009. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 1658 OF 2011 O ------------------------------------------------------ Dated this the 29th day of June, 2011 JUDGMENT The petitioner is the judgment debtor in O.S.No.45 of 2002, on the file of the Principal Sub Court, Kottayam. The decree was transferred to the Sub Court, Kasaragod for execution, as the judgment debtor belongs to Kasaragod and the properties sought to be sold are also situated in Kasaragod. On transfer of the decree, the respondent filed E.P.No.43 of 2009 for realization of the decree amount by sale of the item of immovable property which was attached before judgment. 2. The judgment debtor contended, in the counter filed by him, as follows: “2. The property now sought to be sold is mortgaged to Kerala Financial Corporation, Kasaragod and the loan amount due to the Corporation is Rs.69,41,020/- (Rupees sixty nine lakhs forty one thousand twenty only) as on 13.01.2010. The building and machineries are also hypothecated to the Kerala State Financial O.P.(C) NO.1658 OF 2011 :: 2 :: Corporation. The respondent borrowed the amount for the M/s.Souda Wood Industry, Udyavar, Manjeshwar, Kasaragod District. So the property to be sold is an encumbered property as stated above. The amount claimed in the E.P. by the petitioner is excessive. So the property mentioned in the E.P. cannot be sold in execution of the above decree. The respondent has no manner of right to sell the property.” 3. Later, the petitioner filed E.A.No.34 of 2011 to receive two documents in evidence. In the affidavit in support of E.A.No.34 of 2011, it was stated thus: “2. I say that the E.P. is one for recovery of money. To substantiate my contention that the property which is going to be sold does not belong to me nor M/s.Souda Wood Industries and it belongs to one Sayyed Jabar Sadiq as per registered sale deed document No.2123/1992 registered at S.R.O. Manjeshwar and he gave the property to M/s.Kerala State Financial Corporation as a collateral security and an amount of Rs.76,30,944/- (Rupees Seventy six lakhs thirty thousand nine hundred forty four) as per the statements of accounts up to 22.02.2011 is due and to rebut the contention of the O.P.(C) NO.1658 OF 2011 :: 3 :: petitioner/respondent the documents now produced are absolutely essential.” 4. The executing court rejected the contention put forward by the petitioner and directed the decree holder to produce the encumbrance certificate and the draft sale proclamation, as per Ext.P1 order dated 17.3.2011. The order dated 17.3.2011 is challenged by the judgment debtor in this Original Petition. 5. The property in question was attached before judgment. Nobody raised any claim to the attached property. Even in execution, no claim was filed against attachment. In the counter filed by the respondent, he does not say that he is not the owner of the property. He only says that he has no saleable interest. No documents were produced by the judgment debtor to show that he transferred the property. Who created mortgage to the Kerala Financial Corporation is also not clear from the counter statement filed by the judgment debtor in the Execution Petition. Later, an application was filed to receive documents, in which, he stated that the property belongs to Sayyed Jabar Sadiq. Even in that affidavit, the judgment debtor does not say as to who transferred O.P.(C) NO.1658 OF 2011 :: 4 :: the property to Sayyed Jabar Sadiq. Even after the filing of the counter statement and affidavit in support of E.A.No.34 of 2011, the facts are not clear at all. If the petitioner/judgment debtor is not the owner of the property, he need not worry at all about the sale of that item. The court will consider the encumbrance certificate and pass appropriate orders in the Execution Petition. The petitioner cannot be stated to be an aggrieved party and he cannot challenge the order passed by the court below. If the petitioner is not the owner of the property, his rights cannot be affected by the sale of the property. If there is mortgage in favour of the Kerala Financial Corporation, it is for the decree holder to satisfy himself about the encumbrance. If the property is transferred by the judgment debtor to a third party, still the executing court has to consider whether the transfer is hit by Section 53 of the Transfer of Property Act. The order passed by the court below does not call for interference. For the aforesaid reasons, the Original Petition is dismissed. (K.T.SANKARAN) Judge ahz/