IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 Ex.FA.No. 5 of 2007() --------------------- AGAINST THE ORDER IN E.A.NO.528/02 IN E.A.NO.1169/01 IN E.P.No.310/86 in OS.71/1983 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT :CLAIM PETITIONER --------------- K.P.BHARATHAN, S/O. KORUKUTTY, CHAITHANYA, NEDUNGADI GARDEN, CHAKKORATH KULAM, KOZHIKODE. BY ADV. SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN RESPONDENT(S): AUCTION PURCHASER/JUDGMENT DEBTOR -------------------- 1. K.P.RATNAGANDHI, S/O. UNNEERI, SEENA, NADUVILAKANDY PARAMBA KOTTOOLI AMSOM AND DESOM, KOZHIKODE. 2. PARAKANDY VASU, S/O. RARICHUTTY, KACHERI AMSOM DESOM, KOZHIKODE TALUK. 3. PARAKANDY BALAN, S/O. RARICHUTTY, -DO- -DO- 4. PARAKANDY KARUNAKARAN, S/O. -DO- -DO- 5. KOOVIL PURAYIL SOBHANA, KASBA AMSOM DESOM, KOZHIKODE. ADV. SRI.T.SETHUMADHAVAN FOR R1 TO 4 SRI.PUSHPARAJAN KODOTH FOR R1 TO 4 SRI.K.JAYESH MOHANKUMAR FOR R1 TO 4 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2009, ALONG WITH EX.F.A NO.7 OF 2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.S.GOPINATHAN, JJ. ------------------------------- Ex.F.A.Nos.5, 7, 9, 18 & 19 of 2007 ------------------------------- Dated this the 23rd March, 2009 J U D G M E N T Raman, J. Ex.F.A.No.5 of 2007 arise out of the order in E.A.No.528/2002 in E.A.No.1169 of 01 in E.P.No.310 of 1986 in O.S.No.71 of 1983; Ex.F.A.No.7 of 2007 against the order in E.A.No.529 of 2002 in E.A.No.1171 of 2001 in E.P.No.311 of 1986 in O.S.No.72 of 1983; Ex.F.A.No.9 of 2007 against the order in E.A.No.527 of 2002 in E.A.No.1167 of 2001 in E.P.No.309 of 1986 in O.S.No.66 of 1983; Ex.F.A.No.18 of 2007 against the order in E.A.No.531 of 2002 in E.A.No.1175 of 2001 in E.P.No.313 of 1986 in O.S.No.69 of 1983; and Ex.F.A.No.19 of 2007 in E.A.No.530 of 2002 in E.A.No.1173 of 2001 in E.P.No.312 of 1986 in O.S.No.70 of 1983, on the file of I Additional Sub Court, Kozhikode. All the Execution Appeals were disposed of by a common order, and hence, all the appeals were heard together. Ex.F.A.Nos.5,7,9,18 & 19 of 2007 2 2. Item Nos.3 and 4 in execution of the money decree obtained in O.S.Nos.66, 69, 70, 71 and 72 of 1983 on the file of I Additional Sub Court, Kozhikode, is the subject matter described as Item Nos.1 and 2 in the present claim applications. Those items were sold in public auction in execution of the money decree . The decree was recorded as satisfied, after the deposit was made by the auction purchaser. In respect of two other items, which were the subject matter of Ex.F.A.No.19 of 2006 and connected cases, which we have already disposed of by a separate judgment, this Court ordered to lift the attachment. In respect of the remaining two items which were sold in public auction, the present claim petitions were filed by the legal heirs of one Korakutty, interalia contending that the judgment debtor, Sobana, had only a factional interest over the items sold, and, therefore, except 1/7th share, the sale of the remaining extent is bad. The court below rejected their contentions. Hence, these appeals. Ex.F.A.Nos.5,7,9,18 & 19 of 2007 3 3. We have heard the parties. We may add to say a few more facts for better appreciation as to how the dispute arose. After the death of Korakutty who had two wives and children, number of civil suits were filed for partition of various items. O.S.No.170 of 1985 is one such partition suit pertaining to one of the items in question. O.S.No.261 of 1981 is yet another partition suit and a preliminary decree has already been passed by I Additional Sub Court, Kozhikode. It was after obtaining permission from that court, where the partition suit is pending, as evidenced by Ext.B1, that execution proceedings were continued in the money suit. All the claimants were parties in Ext.B1 proceedings, and, therefore, they are estopped from contending that the sale of two items in question is in any way bad. When Sub Court granted permission to the decree holder to proceed with the execution of the present money claim, the appellant could have resisted the claim or filed an appeal therefrom or raised objections before the property was put to sale. They were aware of the proceedings, but come to the Court with the present petition much after the sale. Ex.F.A.Nos.5,7,9,18 & 19 of 2007 4 4. We have gone through Ext.B1 order and it is seen that there was no serious contest while granting permission and that order has also become final. Thereafter, the properties were sold in public auction and the entire amount deposited and appropriated towards the decree debt. Now, to set aside the sale will cause serious prejudice and hardship to a third party, the auction purchaser and also the decree holder. Though Ext.B1 order is not seen referred to in the order, the contesting respondents sought to support the order by placing reliance on Ext.B1, and we find great force in the said contentions, as already discussed above. Even though a contention was raised by the claimants that they had come to know about the purchase of the properties by the respondents in court auction and confirmation of the sale only later, it was found by the lower court that the suit was decreed in the year 1986 against the 5th respondent and that the 5th respondent is none other than a sharer and a heir of Korakutty, and, therefore, a party in the various other proceedings. Therefore, it is idle for the claimants to contend that they have not aware of the legal action that Ex.F.A.Nos.5,7,9,18 & 19 of 2007 5 commenced from the year 1986. It is also stated that the claim petitioners had come before this Court to prove their case and no oral evidence was also adduced. In such circumstances, we find no merit in these appeals. The appeals are accordingly dismissed. P.R.RAMAN, JUDGE P.S.GOPINATHAN, JUDGE. nj.