IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 WP(C).No. 2088 of 2010(O) ------------------------------------- (EA .NO.913/09 IN E.P. NO. 313/04 IN OS.224/1995 OF PRINCIPAL SUB COURT,ERNAKULAM) .................... PETITIONER: ------------------- K.M.RAVEENDRAN, S/O. MADHAVAN, RESIDING AT KADAVATHU HOUSE, MARADU,ERNAKULAM. BY ADVS. MR.N.RATHEESH, SMT.SUMA RATHEESH. RESPONDENT: ---------------------- TIBU D.PARAI,S/O. DEVASSIA, VIKAS NAGAR, MARADU, ERNAKULAM. BY ADVS. MR.S.SHYAM, SMT.R.S.ASHA, MR.N.SUBRAMANIAM, MR.M.S.NARAYANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/03/2010, THE COURT ON 26/03/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.2088/2010-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE AGREEMENT DTD. 28/10/1993 FOR SALE ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT. EXT.P.2: COPY OF THE DECREE DTD. 25/01/2000 IN O.S. NO. 224/95 ON THE FILE OF THE SUB COURT, ERNAKULAM. EXT.P.3: COPY OF THE SALE DEED DTD. 28/03/2005. EXT.P.4: COPY OF THE APPLICATION E.A. NO. 1030/06 DTD. 16/10/2006 IN E.P. NO. 313/04 IN O.S. NO. 224/95 ON THE FILE OF THE SUB COURT, ERNAKULAM. EXT.P.5: COPY OF THE ORDER DTD. 08/04/2009 IN E.A. NO. 1030/06 IN E.P. NO. 313/04 IN O.S. NO. 224/95 ON THE FILE OF THE SUB COURT, ERNAKULAM. EXT.P.6: COPY OF THE APPLICATION DTD. 24/09/2009 IN E.A. NO. 913/09 IN E.P. NO. 313/04 IN O.S. NO. 224/95 ON THE FILE OF THE SUB COURT, ERNAKULAM. EXT.P.7: COPY OF THE ORDER DTD. 23/11/2009 IN E.A. 1239/06 IN E.P. 313/04 IN O.S. NO. 224/95 OF THE SUB COURT, ERNAKULAM. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE E.A. 466/2005. EXT.R1.B: COPY OF THE JUDGMENT IN WRIT PETITION NO. 35045/2005. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 2088 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2010. JUDGMENT In this writ petition under Article 227 of the Constitution of India, the judgment debtor in O.S. 224 of 1995 before Sub Court, Ernakulam assails the order dated 23.11.2009 passed in E.A. 913 of 2009 in E.P.313 of 2004 in O.S. 224 of 1994. 2. The respondent herein instituted O.S. 224 of 1994, which was a suit for specific performance. The suit was based on Ext.P1 agreement. The suit was decreed as prayed for and decree was granted on 25.1.2000, which is produced as Ext.P2. Since, even after the balance consideration was deposited by the decree holder, the judgment debtor did not come forward to execute the deed, the decree was put in execution. It appears that the judgment debtor did not contest the execution application. Therefore copy of the draft sale deed was served on him. He did not respond. WPC. 2088/2010. 2 Sale deed was executed through court, which is marked as Ext.P3. The grievance of the petitioner is that the sale deed has been executed far in excess of the terms of the decree and Ext.P1 agreement. It is claimed by him that he then filed E.A. 1030 of 2006 under Section 47 of the Code of Civil Procedure challenging execution of the deed as going far beyond the decree. It may be noticed that in the meanwhile the property had been delivered to the decree holder. In his petition, he prayed for setting aside the sale and also for redelivery. Copy of the application is produced as Ext.P4. The petitioner would say that he believed that the sale deed would be in terms of the decree and only when the Amin came to deliver the property, he came to know that the sale deed went far beyond the terms of the decree. However, the court below dismissed E.A. 1030 of 2006 by Ext.P5 order and based on the observation in Ext.P5 order the petitioner approached the executing court as per Ext. E.A. 913 of 2009 seeking rectification of the deed, thereby the decree holder got title over the property. Copy of the application is WPC. 2088/2010. 3 produced as Ext.P6. However by order dated 23.11.2009 that was also dismissed. Further, delivery was ordered to the decree holder. 3. The petitioner, being aggrieved challenged the order by which his application has been dismissed and delivery had been ordered to the decree holder. 4. The respondent has filed a detailed counter affidavit opposing the petition. It is pointed by him that there is no merit in any of the contentions taken by the judgment debtor. It is pointed out that the judgment debtor has not contested the suit and decree was passed ex parte. Thereafter he did not bother to honour the decree and therefore execution had to be levied. In execution, he had deposited the amount as directed by the court, and copy of the draft sale deed was given to the judgment debtor. He raised no objection. Thereafter when he did not execute the sale deed, the sale deed was executed by the court. 5. It is pointed out by the respondent that the suit related to 6 cents of property. In fact on exact WPC. 2088/2010. 4 measurement the extent of property comes to 7.412 cents. In the execution petition, the judgment debtor had also contended that he put up structures in the property. As the constructions have been done during the pendency of the suit, it was ignored by the execution court. The first petition filed by the petitioner was dismissed. He took up the matter as A.S. 474 of 2000. That was also dismissed. A review petition filed by him also met the same fate. It may be mentioned here that the appeal and the review were in respect of the decree. 6. E.P. 313 of 2004 was filed for execution. Though notice was served on the petitioner herein, he did not care to appear. After complying with the formalities delivery was ordered. Then he filed E.A. 466 of 2005 to stay the delivery. The respondent would point out that all the contentions now raised were raised in that petition also. The respondent has produced Ext.R1(a), which is the copy of the said petition. When the application was taken up for consideration, he remained absent and an order was passed. WPC. 2088/2010. 5 He carried the matter before this court as Writ Petition 35045 of 2005. When that writ petition was taken up, neither the petitioner nor his counsel was present and that was also dismissed on merits. Copy of the order is produced as Ext.R1(b). It was thereafter that the respondent herein had filed E.A. 392 of 2006 for delivery of the property excluding the land beneath the building put up by the judgment debtor. Though notice was served on the judgment debtor, he did not appear, delivery was ordered and was effected on 25.8.2008. The respondents point out that thereafter the judgment debtor filed O.S. 528 of 2006 before Sub Court, Ernakulam to set aside the sale deed executed. After taking evidence that suit was also dismissed. Then the petitioner filed E.A. 1030 of 2006 to set aside the sale deed. By Ext.P5 order that was also dismissed. While disposing of the said petition, the court below had observed that if the judgment debtor is aggrieved by the sale deed, he can seek rectification of the same. Clutching on to that observation, the present petition had WPC. 2088/2010. 6 been filed. The court below as rightly, after considering all the issues, dismissed the same and allowed the delivery petition of the respondents. It is further pointed out that there is no merit in the contention now taken by the judgment debtor. 7. The suit was based on Ext.A1 agreement. The relevant portion of the agreement so far as it is necessary for the present purpose reads as follows: Ext. P2 decree also contains the same recital. Ext.P3 is the sale deed executed by the court in favour of the decree holder consequent on the default on the part of the judgment debtor to execute the sale deed. There the relevant portion reads as follows: WPC. 2088/2010. 7 8. The real grievance of the petitioner is that his right of way, which is seen mentioned in Exts. P1 and P2 is not seen mentioned in Ext.P3 sale deed executed through court. He therefore contends that the sale deed goes far beyond the decree and negatives his rights contained both in Exts.P1 and P2. 9. For the present set of things, the judgment debtor has to blame only himself. It is not disputed that in execution proceedings, after the decree holder had deposited the balance sale consideration and produced the draft sale deed, copy of the same was given to the judgment debtor, who is the petitioner herein. He has no case that he took any objection to the same. In fact, he did not take part in the proceedings. The result was that the court executed Ext.P3 sale deed in favour of the decree holder. Thereafter when the decree holder sought delivery through E.P. 313 of 2004, notice was given to the judgment debtor. Then also he did not choose to contest. The court below ordered delivery excluding the land beneath the structure put up by WPC. 2088/2010. 8 the petitioner herein. Then again, he had filed E.A. 466 of 2005 in E.P. 313 of 2004 seeking to have the sale deed set aside etc. When that petition was taken up, he did not appear, nor he was represented and that came to be dismissed. That order was challenged in Writ Petition as already mentioned before this court. When that writ petition was taken for hearing, there was no appearance on his behalf. For these defaults and laches, no reason is given by the petitioner at all. 10. The claim of the petitioner is that the six cents that is the subject matter of Ext.P1 agreement was sought to be transferred to the respondent herein only to be used as a pathway. He too had the right to use the same as pathway. The contention is that the decree holder cannot put up any constructions on that property and all that he can do is to use the entire property as a means of access to the other properties owned by the decree holder. In other words, the purchase by the decree holder was only for the purpose of his access to the other properties. The property WPC. 2088/2010. 9 was assigned with an obligation on the part of the decree holder to let the judgment debtor, who is the petitioner herein, to use the way to have access to his other properties. 11. On the very face of it, the above contention is difficult to accept. It is not possible to believe that the entire land, 6 cents, was bought by the decree holder only for the purpose of using it as a way. The recitals relied on by the judgment debtor in Exts.P1 and P2 do not admit of such an interpretation. It could only mean that 6 cents of land that was sought to be transferred in Ext.P1 agreement and which resulted n Ext.P2 decree is that even though 6 cents was to be assigned to the respondent herein, the petitioner retains right to use a portion of the same as a way. It must be remembered that even according to the petitioner, he had put up constructions in the property. 12. One must notice that the petitioner had several opportunities to contest the matter. Though he had notice in the execution proceedings, he did not contest the WPC. 2088/2010. 10 matter. Copy of the draft sale deed was served on him, no objection was filed to the same. Then he filed an E.A., and when the same was taken up for hearing, he did not appear and that was dismissed. It was taken up before this court, that ended in dismissal on merits and then also he was absent. 13. In the earlier E.P. proceedings the decree holder sought for delivery of the property excluding the land beneath the structure put up by the petitioner herein. It was then E.P.313 of 2004 was filed by the decree holder to deliver that portion also. When copy of that petition was served on him, he did not choose to contest. In the meanwhile, it may be remembered that he had filed E.A. before the executing court to have the sale deed set aside. The executing court while dismissing the application observed that if the judgment debtor is aggrieved, he may get rectification of the deed. It is that prompted him to file E.A. 913 of 2009. It was that application that was dismissed by the court by a considered order. It may be noticed that WPC. 2088/2010. 11 E.A. 1030 of 2006 was filed under Section 47 of the Code of Civil Procedure. The petitioner raised the very same contentions, which were raised before, in this petition also. The court below found that the claim of the petitioner cannot be accepted. As already noticed, it is difficult to believe that the respondent herein would have purchased 6 cents of property for using it only as a way. The respondent decree holder has assailed before this court that he does not intend to prevent the passage which is reserved under Exts.P1 and P2 to the petitioner herein, but he cannot permit the petitioner herein to use the entire 6 cents as pathway. 14. The contention of the respondent herein is fully justified. It cannot be presumed that the 6 cents of land was bought by the respondent herein only as a means of access to his other properties and that he permitted the petitioner herein to use the entire 6 cents as pathway. On a fair construction of Exts.P1 and P2, it can only be said that the property was assigned absolutely to the respondent herein subject to the right of way of the petitioner herein. WPC. 2088/2010. 12 That does not mean that the entire 6 cents can be used as a pathway by the petitioner herein. It is significant to notice that in the present E.P. by the decree holder, he has chosen to seek delivery of the balance property leaving 10 feet width pathway from the northern end for ingress and egress from the Panchayat road to the balance property of the petitioner. The court below found it to be a reasonable one and it ordered delivery. 15. If the petitioner had any grievance regarding the sale deed, he had ample opportunities to raise the same before it was executed and after it was executed, and on all occasions he remained passive and did not care to contest. Long thereafter, when delivery was ordered initially excluding the land beneath the building, he comes forward with this petition. He has no justifiable reasons for his continuance default and laches. He invited the decisions on himself. Even otherwise on merits also the claim of the petitioner cannot be accepted. As rightly noticed by the court below, one cannot believe that the respondent herein WPC. 2088/2010. 13 would have purchased the property only for the purpose of using it as a way. One must not forget to notice that the judgment debtor had put up structures in the property and that shows his highhanded action and attitude. 16. The petitioner suffered successive orders and did not care to contest at the appropriate occasions. He had ample opportunities to put forward his case, which he did not do due to his own laches and default. He has only to thank himself for the same. In the result, this writ petition is without merits and it is liable to be dismissed. I do so. P. BHAVADASAN, JUDGE sb.