IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 Ex.FA.No.38 of 2007 ------------------------ AGAINST THE ORDER DATED 04/10/2007 IN EA.246/07 IN EP.45/06 IN OS.27/2005 of SUB COURT,NEYYATTINKARA .................... APPELLANT/PETITIONER: ------------------------------ SAARA, AGED 49 YEARS, D/O. MUTHAMMAL, RESIDING AT VALIYAVILAKAM PURAYIDAM, KARIMKULAM VILLAGE, KARIMKULAM DESOM, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.T.MADHU RESPONDENTS/COUNTER PETITIONERS: ----------------------------------------------- 1. SATHIDEVI CHANDRALINI, KRISHNA NIVAS, PUTHIYATHURAI, KARIMKULAM VILLAGE, KARIMKULAM DESOM, THIRUVANANTHAPURAM DISTRICT - 695 581. 2. MADHAVA PANICKER RAVEENDRAN, GANGA NIVAS, KOCHUTHURAI, KARIMKULAM VILLAGE, KARIMKULAM DESOM, THIRUVANANTHAPURAM DISTRICT - 695 581. ADV. SRI.M.R.SARIN FOR R1 SRI.M.R.SASITH FOR R1 SRI.KIRAN SANKAR FOR R1 SRI.P.SANTHOSHKUMAR (KARUMKULAM) FOR R1 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & C.K. ABDUL REHIM, JJ. ----------------------------------------------- Execution First Appeal No.38 OF 2007 ----------------------------------------------- Dated this the 8th day of January, 2009. J U D G M E N T Kurian Joseph, J. The appellant is the claim petitioner in E.A.No.246/2007 in E.P.No.45/2006 in O.S.No.27/2005 on the file of the Sub Court, Neyyattinkara. The petition was filed under Order 21 Rule 58 of the Code of Civil Procedure. 2. According to the appellant-claim petitioner, she purchased the plaint schedule property on 26.04.2006 and thereafter she has secured also a loan on offering the said property as security from the Co-operative Bank. It is the contention that she purchased the property after duly verifying the revenue records that there was no encumbrance. Subsequently, it has come out that the property was under orders of attachment ever since 05.02.2005 and the judgment debtor has transferred the property to one Madhusoodhanan Nair Ex.F.A.38/07 2 on 21.02.2005 who sold it to one Sreekumar on 14.11.2005 and from the said Sreekumar only the appellant-claim petitioner purchased the property on 26.04.2006. 3. According to the appellant-claim petitioner, she is a bonafide purchaser and hence the claim petition is liable to be allowed. Learned counsel for the respondents submits that the transfer is hit by 'lispendens'. It is also submitted that mere entry or non entry in the revenue records of a transfer or an attachment will not by itself confer any right on a party. 4. Be that as it may, the main contention of the appellant is that she was not given an opportunity to adduce evidence. When the petition was posted on 29.09.2007 for orders, an application was filed for permission to adduce evidence but the same was dismissed, it is submitted. Learned counsel for respondents submit that the application happened to be dismissed since no copy was served on the respondents. 5. Having heard the counsel on both sides, we find that this is a case where the appellant should be given an opportunity to adduce evidence. We are fortified in our view by the Bench Ex.F.A.38/07 3 decision in Union Bank of India vs. Cherian (1987(1) KLT 51). Therefore, without expressing any opinion as to the merits of the case, we set aside the order under appeal and remit the matter to the Execution Court, Sub Court, Neyyattinkara. The parties shall appear before the said court on 12.02.2009. The Execution Court shall afford an opportunity to the appellant-claim petitioner to adduce evidence on that day. The application shall be disposed of before the court closes for summer vacation. The appeal is disposed of as above. KURIAN JOSEPH JUDGE C.K. ABDUL REHIM JUDGE smp Ex.F.A.38/07 4 KURIAN JOSEPH & C.K. ABDUL REHIM, JJ. Ex.F.A. No. 38 OF 2007 J U D G M E N T 08.01.2009