IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN TUESDAY, THE 6TH DAY OF DECEMBER 2011/15TH AGRAHAYANA 1933 RP.No. 598 of 2011 ( ) AGAINST THE ORDER/JUDGMENT IN EXFA.108/2009 DATED 14-01-2011 REVIEW PETITIONER / APPELLANT IN EX.F.A. --------------- 1 SARA,D/O.MUTHAMMAL,KOCHUTHURA VALIYAVILAKOM PURAYIDOM KARUMKULAM DESOM KARUMKULAM VILLAGE THIRUVANANTHAPURAM. BY ADV.SRI.K.B.PRADEEP RESPONDENTS / RESPONDENTS IN EX.F.A. --------------------- 1 CHANDRALINI,D/O.SATHI DEVI,KRISHNA NIVAS PUTHIYATHURAI KARUMKULAM DESOM KARUMKULAM VILLAGE THIRUVANANTHAPURAM. 2 RAVEENDRAN, S/O.MADHAVA PANICKER, GANGA NIVAS KOCHUTHURAI KARUMKULAM DESOM KARUMKULAM VILLAGE THIRUVANANTHAPURAM. BY ADV. SRI.M.R.SARIN MR.G.S.REGHUNATH FOR R1 THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 06-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... R.P.No.598 of 2011 in Ex.F.A. No.108 of 2009 .................................................................... Dated this the 6th day of December, 2011. O R D E R Ramachandran Nair, J. This Review Petition is filed to review the judgment dated 14/01/2011 whereunder we closed the Execution First Appeal as not pressed because the matter was stated to be settled out of court. However, the appellant in the appeal has filed this review petition stating that there was no settlement and the matter should be decided on merit. 2. We have heard learned counsel for the review petitioner and learned counsel appearing for the 1st respondent. Even though notice was served on the 2nd respondent, he has not chosen to appear because he being the judgment debtor has no interest in the matter. 3. The facts leading to the controversy are the following:- The 2nd respondent took a loan from the 1st respondent and the loan was given based on a pro-note issued by the 2nd R.P.No.598/2011 2 respondent. On default after demand, the 1st respondent filed suit against the 2nd respondent before the Civil Court, which was decreed. Execution petition was filed for recovery of Rs.1,81,298/- against the 2nd respondent. In the execution proceedings, property was brought to sale by the execution court whereunder the decree holder, the 1st respondent, purchased the property for Rs.1,81,298/-, which is the decree amount. 4. The first respondent, the purchaser did not deposit the purchase consideration because he being the decree holder needs only an adjustment of the decree amount due to him against the amount payable by him for the value of the property purchased. The appellant's title is through purchase from the person to whom the borrower sold the property after creation of the charge. Since the property sold was subject to charge, it was attached and sold. However, the appellant before date of confirmation of the sale of the property by the execution court deposited the entire decree amount with cost before the Court. In the normal course, the Court should have dismissed the Execution Petition as the decree amount was R.P.No.598/2011 3 satisfied though not by the judgment debtor but by the purchaser of the property. However, the court proceeded to confirm the sale on 04/04/2011, which was challenged in this appeal. 5. After hearing both sides, we do not think the appellant can be deprived of the property purchased by her because besides paying the price for the property the appellant has deposited the full decree amount with cost before the execution court. Further, it is seen that the appellant is a fish vendor who purchased the property, which is 9.5 cents of land with a residential building therein, for the purpose of residence. So far as the case of the 1st respondent is concerned, her right is only as a decree holder and she gets the full payment because full decree amount including cost is deposited in Court by the appellant. The decree holder could have withdrawn the decree amount and cost and could have agreed for settlement of the matter. However, her claim is that she should get the defaulter’s property in execution proceedings, which we feel has no basis. Technically, decree holder is entitled to purchase the property with leave of the R.P.No.598/2011 4 Court and so much so but for the deposit of the decree amount with cost by the appellant, the 1st respondent would have got the property. However, since the appellant has deposited the decree amount with cost, we find no justification for the execution court to confirm the sale of the property in favour of the decree holder. We, therefore, allow the Review Petition by vacating the impugned order, restore the appeal and allow the same by setting aside the sale confirmed by the execution court on 04/04/2011 in favour of the 1st respondent. The execution court will allow the 1st respondent to withdraw the decree amount with cost deposited by the appellant in court. However, in view of the inordinate delay caused for the 1st respondent to recover the amount, we direct the appellant to deposit a further sum of Rs.7,500/- (Rupees seven thousand five hundred only) within two weeks from receipt of this judgment. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) jg