IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 FAO.No. 196 of 2008() --------------------- AGAINST THE ORDER DATED 31/05/2008 IN E.A.82/07INE.P.111/03 IN OS'.569/1992 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANTS/ PETITIONERS/ JUDGMENT DEBTORS NO. 1 & 4:: --------------------------------------------------------------- 1. PAUL, S/O. KOTTAPADIKKARAN LONAPPAN, PULIPPARAKUNNU DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK. 2. MARIYAM, W/O.LATE KOTTAPADIKKARAN LONAPPAN, PULIPPARAKUNNU DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): --------------- 1. THE SOUTH INDIAN BANK LTD., HEAD OFFICE AT THRISSUR 2. T K JOSEPH, 17 - RAMASWAMY CORNER } COIMBATORE } } 3. JOSE, S/O. KOTTAPADIKKARAN LONAPPAN } PULIPPARAKUNNU DESOM } KODAKARA } } DELETED 4. JAISY, D/O. KOTTAPADIKKARAN LONAPPAN, } PULIPPARAKUNNU DESOM, } KODAKARA VILLAGE, MUKUNDAPURAM TALUK. } } 5. SISILY, D/O. KOTTAPADIKKARAN LONAPPAN, } PULIPPARAKUNNU DESOM, KODAKARA VILLAGE } MUKUNDAPURAM TALUK. } NAME OF RESPONDENTS 2 TO 5 ARE DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF APPELLATNS VIDE ORDER DTD. 8.8.08 ON I.A. NO: 3309/2008. BY ADV. SRI.K.K.JOHN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. 3229/08 ON FAO.No. 196 of 2008 ------------------------------ DISMISSED. SD/- K.M. JOSEPH, JUDGE SD/- M.L.JOSEPH FRANCIS, JUDGE 16.12.2009 K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 196 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of December, 2009 JUDGMENT Joseph, J. The appellants challenge the order passed in E.A.No. 82 of 2007 in E.P.No. 111 of 2008 in O.S.No. 569 of 1992 on the file of the Sub Court, Irinjlakuda. E.A. 82 of 2007 was filed to set aside the court auction under Order 21 Rule 90 C.P.C. The first respondent bank obtained a decree on the strength of a mortgage executed by the father of the first appellant and the husband of the second appellant. 2. The principal ground taken in the application is that the boundaries of the decree schedule property were not shown correctly in the proclamation. There is a residential house in the said schedule. An extent of 20 cents adjacent to F.A.O. No. 196 of 2008 2 the said property was sold in O.S.No. 55 of 2001. The value of the property shown is not correct. The proclamation was not made properly. The Execution Court found that there is a mortgage in force and when the decree in O.S.No. 55 of 2001 was put in execution, 20 cents out of the 50 cents was shown and later the proclamation was made in respect of the 30 cents. PW1 deposed that the above 20 cents of the property is on the southern side and he has no case when the proclamation was made that the house is also included in that property. When the proclamation was made in the above case, it was noted that the house was included. He has not raised any objection. He has not taken out a commission to show that the house is in the 20 cents, which was not included in the present sale. The proclamation was made properly and it was also found that there is no evidence adduced regarding the value of the property. Accordingly the application was dismissed. 3. We heard the learned counsel for the appellants and the learned counsel for the first respondent. F.A.O. No. 196 of 2008 3 4. The learned counsel for th first respondent bank submits that the property originally belonged to the father of the first appellant and the husband of the second appellant. There was a mortgage in respect of 50 cents of property. 5. After hearing counsel for both the parties, the following facts are not in dispute. After the mortgage and pending the suit filed by the first respondent a partition was effected. As per the same, 20 cents with a residential house was allotted to the second appellant and 30 cents out of the remaining mortgaged property came to be allotted to the share of the first appellant. There was a chitty transaction and the said chitty company laid a suit as O..No. 55 of 2001, which was decreed. In execution of the said suit, a portion of the mortgaged property was sold. The said portion appear to be the 20 cents. According to the appellants, the portion of the property which was sold in favour of the chitty company included the residential building also and the chitty company F.A.O. No. 196 of 2008 4 leased out the building in favour of the second appellant and thus the second appellant became a tenant of the building. 6. E.P. 111 of 2008 was filed by the first respondent. The aforesaid aspect was brought to the notice of the Execution Court and the Execution Court ordered that, that a portion of the property has already been sold in execution of the decree. Hence produce a fresh sale proclamation. It is contended that in obedience to that direction, a fresh proclamation was produced on 30.11.2006. But the extent of the property shown in the proclamation was the same as was shown in the earlier proclamation. It was inclusive of the residential building mentioned in the property, which was sold in execution of the decree. It is ignoring this aspect that the present application has been rejected, it is complained the learned counsel for the appellants. 7. The learned counsel appearing for the bank highlighted the fact that all the dealings, including the partition, the suit filed F.A.O. No. 196 of 2008 5 as O.S. 55 of 2001, all took place after the execution of the mortgage by the predecessor-in-interest of the appellants. He pointed out that the property scheduled as per the proclamation, resulting in the sale which is sought to be set aside, clearly included the residential building also. But it is pointed out that the appellants did not object to the same. He further contended that the appellants have no legal right in the matter. As far as the second appellant is concerned, she is staking a claim on the basis of the alleged tenancy right created in her favour by the auction purchaser in O.S.No. 55 of 2001. 8. The learned counsel would further contend that as held by the court below, there is no evidence before the court to help the court to locate the exact lie of the residential building to come to the conclusion as to whether the property which was sold in O.S.No. 55 of 2001 included the residential building or not. 9. In this case it is not in dispute that the property, which was proclaimed for sale, was 30 cents, including the residential F.A.O. No. 196 of 2008 6 building. At the stage of proclamation, the appellants did not object to the inclusion of the building. There is no evidence to actually locate the exact lie of the building. That is to say, the appellants have not been able to establish that the building was part of the the property, which was sold in auction in O.S.No. 55 of 2001. 10. In view of the provisions of law applicable, we do not see any merit in this appeal. It is accordingly dismissed. There is no order as to cost. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm