IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 WP(C).No. 5704 of 2008(D) ------------------------- OS.208/1999 of PRL.MUNSIFF COURT,THRISSUR .................... PETITIONER: ------------ RADHAKRISHNAN, S/O.NATESAYYAR, AGED 52 YEARS, ACHUTHAPURAM MADATHIL, POTORE VILLAGE, THRISSUR TALUK. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYASHREE PRIYA RESPONDENTS: ------------- 1. SERVICE EMPLOYEES KURIES & LOANS (P) LTD., THRISSUR DESOM, VILLAGE AND TALUK. 2. LILLY, W/O.PUTHOOKKARA PORINCHU, ANJOOR VILLAGE, MUNDUR DESOM, THRISSUR TALUK. 3. PORINCHU, S/O.PUTHOOKKARA MUTHU, ANJOOR VILLAGE, MUNDUR DESOM, THRISSUR TALUK. 4. SHEELA, W/O.MADATHIPARAMBIL RAJAN, PUNKUNNAM DESOM, THRISSUR TALUK. 5. M.N.RAJAN, S/O.MADATHIPARAMBIL NARAYANAN, PUNKUNNAM DESOM, THRISSUR TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- W.P.(C) No.5704 OF 2008 -------------------------- Dated this the 20th day of February, 2008 J U D G M E N T ~~~~~~~~~~~ This writ petition is preferred against the order of the Principal Munsiff, Thrissur in E.A.No.236/2006 in E.P.No.195/2001 in O.S.No.208/1999. The writ petitioner is not a party to the suit but is the claim petitioner in the matter. The brief facts would reveal that it a case of the claimant that he had purchased the property from Smt.Sheela wife of Rajan who are judgment debtors in the case. The said assignment was on 27.11.1997. According to him he had taken the encumbrance certificate which did not show any liability on the property and therefore the sale effected behind is vitiated under law and therefore it requires interference. It can be seen that the auction was conducted and the sale was confirmed on 24.11.2003. The application claiming right over the property comes in the year 2006 . Though it is seen that a list of documents have been produced, the court below refers to that no document is produced and further no evidence is also adduced and documents are never attempted to be marked. It W.P.(C) NO.5704/2008 2 has to be understood that the loan was obtained on furnishing security in the form of a mortgage. Equitable mortgage is equally a valid mortgage and it has got all the clippings, right and liability under the Transfer of the Property Act. When a person is purchasing the property he is bound to enquire and find out the liability, if any, and if there is a breach committed by his seller his appropriate remedy is to take action against the seller and not to fight against the person who has got a right of mortgage over the property. 2. Learned counsel had referred to the decision of the Apex court in Nani Gopal Paul v. T.Prasad Singh reported in 1995(3) Supreme Court Cases 579, wherein the Apex court has held that the court is not powerless when it is able to find manifest illegality committed in conducting sales. It is only of the mortgaged property that a sale is conducted by the court. It cannot be the manifest error or mistake. Therefore, the extension of the said ruling to the facts of the present case is not permissible. I am not going much into details of the case for the reason that it is clear that the matter has not been properly pursued before the court below. In one of the decision this court in Lakshmikutty Amma v. Krishana Pillai [1992(2) KLT 256] W.P.(C) NO.5704/2008 3 that “The remedy for a stranger to a suit, in which a sale is ordered, is a declaratory relief and not a suit to set aside the court sale. The appropriate relief in such circumstances, would a declaration that the decree does not bind one who was not a party to the suit. The principle upon which this view rests, is that decision cannot bind a stranger to the proceedings”. 3. The writ petitioner is claiming as a stranger to the proceeding and he contends he has nothing to do with the court sale and since he is having valid title to the property the sale is not binding on him. If the law so permits I give liberty to the writ petitioner to move the appropriate court for appropriate relief in accordance with law. With these observations, this writ petition is dismissed. (M.N.KRISHNAN, JUDGE) ps