IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 Ex.FA.No. 51 of 2008() ---------------------- AGAINST THE ORDER DATED 04/08/2008 IN EP.326/87,EA.329/08 IN OS.401/1979 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT/CLAIM PETITIONER. ----------------------------------------------- M/S. VAS PHARMACEUTICALS (INDIA)LTD., THYKOODAM, VYTTILA, COCHIN - 19, REPRESENTED BY THE MANAGING DIRECTOR, VASUDEVAN K. PANDALATH. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.JESWIN P.VARGHESE RESPONDENT(S): RESPONDENT/DECREE HOLDER: ---------------------------------------- 1. BANK OF INDIA, THIRUVANIYUR BRANCH, ERNAKULAM, REPRESENTED BY ITS BRANCH MANAGER. 2. P.V.POULOSE, AGED 65 YEARS S/O.LATE VARKEY, PANICHIKKUAZHIYIL HOUE THIRUVANIYOOR PO, ERNAKULAM DISTRICT (R2 IMPLEADED AS PER ORDER DT.3.9.2008 IN IA 2262/08) 3. M.P.YOHANNAN, MATTAPPILLIL HOUSE, PUTHENCRUZ PO (ADDL.R3 IMPLEADED AS PER ORDER DT.23.10.08 IN IA 2789/08) ADV. SRI.H.B.SHENOY FOR ADDL.R2. SRI.B.ASHOK SHENOY FOR ADDL.R2. SMT.LAKSHMI B.SHENOY FOR ADDL.R2. SRI.ABU MATHEW FOR ADDL.R2. SRI.SOBHAN GEORGE FOR ADDL.R2. SRI.THOMAS P.MAKIL FOR ADDL.R2. SRI.S.VINOD BHAT FOR ADDL.R3 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- Ex.FA NO.51 OF 2008 -------------------------------------------------------- Dated 31st July 2009 Judgment Bhavadasan, J. Aggrieved by the order dismissing EA No.329/08 in EP No.326/87 in OS No.401/79, the petitioner before the court below has come up in appeal. 2. In a mortgage decree for money, the property involved in these proceedings was brought to sale. The judgment debtors had availed a loan from the Parur Central Bank. The bank instituted a suit against the judgment debtors and a charge decree was passed in favour of the bank. In execution of the decree, the property was brought to sale and the first respondent is the auction purchaser. In the meanwhile, it is stated that the judgment debtors had settled the issue with the bank and the property was assigned to the appellant. It needs to be pointed out at this juncture that the Parur Central Bank of India was taken over by the Bank of India and so, the decree holder thereafter, was the Bank of India. EX.FA 51/08 2 2. The appellant entered into an agreement for sale with the judgment debtors for a sum of Rs.6,50,500/-. Later, with the purchase of the property from the judgment debtors, he stepped into the shoes of the judgment debtors. On knowing about the sale, the appellant challenged the same by filing WP(C) No.5968/08, which was disposed of by this court, leaving open the right of the appellant to raise such claims as are entitled to him in law before the court below. 3. Thereafter, the appellant filed the present petition under Order XXI Rule 58 CPC as per EA 329/08. 4. The property sold had an extent of 2.49 acres, comprised in Survey No.149/1 of Thiruvaniyur village with buildings therein. The application filed by the appellant was resisted by the auction purchaser. It was pointed out that the petition under Order XXI Rule 58 CPC was not maintainable, along with other contentions. 5. For the purpose of the application, no evidence was adduced by either side. On consideration of the materials before it, the court below came to the conclusion that the petitioner EX.FA 51/08 3 before the court below was no entitled to any relief and therefore, the claim petition was dismissed. The said order is assailed. 6. When the matter was taken up for hearing the learned counsel for the respondents raised a preliminary objection that the petition filed by the appellant under Order XXI Rule 58 CPC is not maintainable. Per contra, the learned counsel for the appellant pointed out that even assuming a claim petition under Order XXI Rule 58 CPC may not be maintainable, it may be treated as a petition under Order XXI Rule 89 or 90 or under Rule 97. 7. After the matter was heard for some time, it was evident that the petition filed by the appellant under Order XXI Rule 58 CPC is not maintainable for the simple reason that there was no attachment in the proceedings. As already noticed, the decree was a mortgage decree and the property has been brought to sale in execution of that decree. The issue whether a claim petition is maintainable in a mortgage suit was considered in Krishnaswamy v. Nagarathnammal (AIR 1930 Madras 712), EX.FA 51/08 4 Mt.Bhagerna Kuer v. Ramdeni Rai” (AIR (36) 1949 Patna 466) and Mahabir Prasad Singh v. Nogendra Nath Mandal” (AIR 1921 Calcutta 479) wherein it was held that a claim petition in a mortgage decree is not maintainable. The said principle is squarely applicable to the case on hand also. 8. The learned counsel for the appellant then pointed out that his right to assail the sale on any other ground may be left open. 9. Considering the fact that the petition itself was not maintainable, it is only to be dismissed. However, we leave open the right of the appellant, if any, to approach the court below seeking reliefs if he is entitled to in law to do so. If any fresh petition is filed by the appellant in accordance with law, the findings of this Court as well as the lower court, while disposing the present petition, will not stand in the way of the court below in disposing of the fresh application in accordance with law. Since the application under Order XXI Rule 58 CPC having been held to be not maintainable, it is not necessary to go into EX.FA 51/08 5 the merits of the other contentions raised by the parties. Therefore, the findings on merits rendered by the court below are vacated. The application is dismissed as not maintainable and the appeal is disposed of accordingly. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta EX.FA 51/08 6