IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 WP(C).No. 9527 of 2010(O) -------------------------------------- EP.NO.252/2008 IN OS.NO.593/1997 of MUNSIFF COURT, CHITTUR .................... PETITIONER(S): ------------------------- AMSA BEEVI, WIFE OF ANEEFA RAWTHER, AGED 70 YEARS, RESIDING AT NAGARPADAM, GOVINDAPURAM P.O., MUTHALAMADA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, REP. BY HER DULY CONSTITUTED P/A.HOLDER KASIM, S/O.ANEEFA,AGED 40 YEARS, R/AT. ADDRESS DO. DO. BY ADV. SRI.G.HARIHARAN SRI.PRAVEEN.H. RESPONDENT(S): --------------------------- 1. RAJAN ALIAS RAJA CHANDRAN NAIR, SON OF BHARGAVI AMMA, AGED ABOUT 72 YEARS, RESIDING AT DEEPTHI, KALLEKULANGARA, AKATHETHARA VILLAGE, PALAKKAD DISTRICT. 2. M.MOOSA, SON OF MUHAMMED KHANI RAWTHER, AGED ABOUT 45 YEARS, KADAMKURUSSI, MUTHALAMADA VILLAGE, CHITTUR TALUK. R1 BY ADV. SRI.U.BALAGANGADHARAN R2 BY ADV. SRI.O.D.SIVADAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/12/2011, ALONG WITH CRP NO.507 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.9527/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE POWER OF ATTORNEY EXECUTED IN FAVOUR OF A.KASIM BY THE PETITIONER. P2 COPY OF THE EXECUTION PETITION FILED BY THE 1ST RESPONDENT AGAINST THE 2ND RESPONDENT AND THE PETITIONER HEREIN. P3 COPY OF THE SALE DEED NO.184/2003 OF SRO KOLLENGODE EXECUTED BY THE 2ND RESPONDENT IN FAVOUR OF THE PETITIONER. P4 COPY OF THE BASIC TAX RECEIPT DATED 29/09/09 EVIDENCING PAYMENT OF BASIC TAX IN THANDAPER NO.383 WITH RESPECT TO THE PROPERTIES MENTIONED IN EXHIBIT P3. P5 COPY OF THE POSSESSION CERTIFICATE NO.6864/09 DATED 29/09/09 ISSUED BY THE VILLAGE OFFICER, MUTHALAMADA. P6 COPY OF THE OBJECTION FILED BY THE PETITIONER IN EXHIBIT P2 EXECUTION PETITION. P7 COPY OF THE ORDER DATED 04/03/2010 IN E.P.NO.252/2008 IN O.S.NO.593/1997. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P. JOSEPH, J. ---------------------------------------- W.P(C).No.9527 of 2010 and C.R.P.No.507 of 2011 --------------------------------------- Dated this 12th day of December, 2011 JUDGMENT This writ petition and civil revision arise from proceedings of learned Munsiff, Chittoor in E.P.No.252 of 2008 in O.S.No.593 of 1997 and the judgment of learned second Additional District Judge, Palakkad in A.S.No.115 of 2000 arising from the judgment and decree in O.S.No.593 of 1997. Parties, for the sake of convenience are referred hereunder as decree holder, judgment debtor and assignee from the judgment debtor. 2. Decree holder sued the judgment debtor for recovery of money and learned Munsiff granted a decree in his favour. Judgment debtor challenged that judgment and decree in A.S.No.115 of 2000 before learned second Additional District Judge, Palakkad. Judgment debtor requested for a stay of execution of the decree and obtained an order on condition of furnishing security. Pursuant to that order, it is not disputed, judgment debtor offered his property as security by producing photocopies of relevant documents of title (since there was a W.P(C).No.9527 of 2010 and C.R.P.No.507 of 2011 -: 2 :- mortgage in favour of a co-operative bank) and executing security bond. Security offered by the judgment debtor was accepted by the trial court. Appeal was later dismissed which this Court confirmed in R.S.A.No.34 of 2006. That proceeding ended there. 3. Decree holder filed E.P.No.252 of 2008 for execution of the decree in his favour and initially sought personal execution against the judgment debtor. Judgment debtor pleaded no means. That plea was accepted by the executing court. The decree holder unsuccessfully challenged that order in this Court in C.R.P.No.767 of 2007. Thereafter he sought execution against property of judgment debtor which was offered as security. Judgment debtor objected to that contending that he has transferred the property. According to the judgment debtor, he was constrained to transfer the property to the assignee to clear liability of the co-operative bank. Executing court posted the property for sale. That order is challenged by assignee from the judgment debtor in W.P(C).No.9527 of 2010. 4. In the meantime decree holder moved learned Second Additional District Judge, Palakkad in A.S.No.115 of 2000 by filing I.A.No.270 of 2008. Decree holder contended that the judgment debtor has violated the order of learned Additional W.P(C).No.9527 of 2010 and C.R.P.No.507 of 2011 -: 3 :- District Judge and thereby committed contempt. That application was resisted by the judgment debtor on various grounds. Learned Additional District Judge concluded that there is disobeyance of the undertaking made by the judgment debtor and that it is punishable under Sec.151 of the Code of Civil Procedure (for short, "the Code”). Accordingly learned Additional District Judge by order dated 14.10.2011 directed judgment debtor to pay the amount due under the decree to the decree holder within 15 days from date of order and in case of failure, to undergo detention in the civil prison for a period of three months. Judgment debtor challenges the said order in C.R.P.No.507 of 2011. 5. It is contended by learned counsel for judgment debtor that there is no wilful disobeyance of the order and hence no contempt is involved. It is also the contention of learned counsel that it was at a stage when judgment debtor had no other way but to sell the property and clear liability of the co-operative bank that he had to sell the property. It is also contended that the security bond executed by the judgment debtor is not enforceable as it is not registered. Reliance is placed on the decision in R.M Palat Vs. P.A.Nedungadi (1958 KLT 635). W.P(C).No.9527 of 2010 and C.R.P.No.507 of 2011 -: 4 :- 6. Learned counsel for assignee from the judgment debtor would also contend that the security bond cannot be enforced for the said reason. The further contention is that assignee from the judgment debtor is a bonafide purchaser, without notice of creation of security as it was not registered and not communicated to the Sub Registrar concerned. 7. So far as civil revision filed by judgment debtor is concerned, it is not disputed that pursuant to the order passed by learned Additional District Judge staying execution of the decree on condition of furnishing security, judgment debtor furnished security of the property which was later sold to the assignee from the judgment debtor and also executed security bond in the trial court. It is no answer to say that it was because the judgment debtor was otherwise in difficult situation that he had to sell the property. It is clear from the materials on record that judgment debtor has violated the undertaking contained in the security bond he has executed pursuant to the order of learned Additional District Judge. That violation is punishable under Sec.151 of the Code as held by the Supreme Court in Noorali Babul Thanewala Vs. Sh. K.M.M Shetty (AIR 1990 SC 464). As such there is no reason to interfere with the order of learned W.P(C).No.9527 of 2010 and C.R.P.No.507 of 2011 -: 5 :- Additional District Judge which has given rise to the civil revision. 8. So far as contention raised by the assignee from judgment debtor is concerned, I stated that reliance is placed on the decision in R.M Palat Vs. P.A.Nedungadi (supra) but, that decision was distinguished by the Full Bench of this Court in Meenachil Panchayat Vs. Sivasankara Marar (2003(2) KLT 914). The Full Bench took the view that when pursuant to an order of Court a security bond is executed, such security bond is not required to be registered as required under 17(2) (vi) of the Registration Act since what is being enforced is the order of Court and the security bond is only executed pursuant to such order. The Full Bench held that in such situation the security bond is not required to be registered. 9. If the security bond is not required to the registered under law, the assignee from judgment debtor cannot contend that he is a bonafide purchaser without notice of execution of the security bond. In that view of the matter, property is liable to be proceeded against in execution of the decree. 10. Learned counsel for judgment debtor and assignee from the judgment debtor alternatively contended that they may W.P(C).No.9527 of 2010 and C.R.P.No.507 of 2011 -: 6 :- be granted time to make up the money and pay the same to the decree holder. Having regard to the circumstances stated above and the amount involved, I am inclined to grant time to the judgment debtor and if the assignee from judgment debtor so wishes to discharge the liability. Resultantly this civil revision and writ petition are dismissed. But the following directions are issued. (i) Judgment debtor is granted three months' time from this day to pay the amount due under the decree to the decree holder. In case of failure, he has to undergo detention in the civil prison as directed by the learned Additional District Judge in the order impugned in C.R.P.No.507 of 2011. (ii) It is directed that sale of property will stand adjourned to a day after three months from this day on condition that in case fresh proclamation for sale is required, judgment debtor shall file affidavit waiving fresh proclamation for such sale. (iii) I make it clear that the assignee from the judgment debtor, to avoid sale of property can pay/deposit the amount due under the decree to the decree holder and ward off the sale. (iv) It is also made clear that in case the amount due under the decree is paid/deposited W.P(C).No.9527 of 2010 and C.R.P.No.507 of 2011 -: 7 :- by the assignee from judgment debtor, that shall be treated as sufficient compliance of the order on I.A.No.270 of 2008 in A.S.No.115 of 2000 to pay the amount due under the decree. (THOMAS P. JOSEPH, JUDGE) Sbna/-