IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 WP(C).No. 28327 of 2008(V) -------------------------------------- OS.159/2008 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER(S): ---------------------- 1. VARKEY, AGED 55 YEARS, S/O.KURIAKOSE, KOKKADASSERIYIL HOUSE, POTHANIKADU VILLAGE KOTHAMANGALAM TALUK. 2. EBY VARGHESE, S/O.VARKEY, KOKKADASSERIYIL HOUSE, POTHANIKADU VILLAGE, KOTHAMANGALAM TALUK. BY ADV. MR.A.S.SAJUSH PAUL RESPONDENT(S): ------------------------ 1. M.S.ALIYAR, S/O.SAITHU, MANICKAL HOUSE PALLARIMANGALAM KARA, POTHANIKADU VILLAGE KOTHAMANGALAM TALUK. 2. THE FEDERAL BANK LIMITED, THURUTHY BRANCH KURUPAMPADY, PERUMBAVOOR, REP. BY BRANCH MANAGER. 3. THE TALUK SURVEYOR, TALUK OFFICE, KOTHAMANGALAM. 4. KSEB, REP. BY THE SECRETARY, VAIDHYUTHI BHAVAN, THIRUVANANTHAPURAM. 5. THE EXECUTIVE ENGINEER, KSEB, SECTION OFFICE, KALAMASSERY. R3 BY GOVERNMENT PLEADER R4 & R5 BY ADV. MR.P.P.THAJUDEEN, SC, K.S.E.B, R1 BY ADV. MR.ELDHO PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 28327/2008-V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.159/2008 ON THE FILE OF THE MUNSIFF'S COURT, MUVATTUPUZHA DATED 28/03/2008. EXT.P2: COPY OF THE WRITTEN STATEMENT DATED 26/06/2008 IN O.S.159/2008 ON THE FILE OF THE MUNSIFF'S COURT, MUVATTUPUZHA. EXT.P3: COPY OF THE I.A.2191/2008 IN 159/2008 ON THE FILE OF THE MUNSIFF'S COURT, MUVATTUPUZHA, DATED 30/06/2008. EXT.P4: COPY OF THE COUNTER AFFIDAVIT I.A. NO.2191/2008 IN OS.159/2008 ON THE FILE OF THE MUNSIFF'S COURT, MUVATTUPUZHA DATED NIL EXT.P5: COPY OF THE I.A.2490/2008 IN OS.159/2008 ON THE FILE OF THE MUNSIFF'S COURT, MUVATTUPUZHA DATED 26/07/2008. EXT.P6: COPY OF THE ORDER DATED 19/07/2008 IN I.A.2191/2008 IN OS.159/2008 ON THE FILE OF THE MUNSIFF'S COURT, MUVATTUPUZHA. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE SALE CONFIRMATION LETTER DATED 20/12/2006 ISSUED BY THE DRT TO THE AUCTION PURCHASER. EXT.R1(b): COPY OF THE SKETCH AND PLAN PREPARED BY THE 3RD RESPONDENT DATED 12/05/2005. //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.28327 OF 2008 -------------------------- Dated this the 17th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following relief. This Court may be pleased to set aside Ext.P6 and direct the Munsiff Court, Muvattupuzha to consider and dispose of the question of jurisdiction as a preliminary issue as prayed for by the petitioners as per Ext.P5 application. 2. Petitioners are the first and second defendants in O.S No. 159 of 2008 on the file of the Munsiff Court, Moovattupuzha. The above suit is one for declaration of title, recovery of possession and consequential injunction. The respondents in the petition are the plaintiff and W.P.(C).No.28327 OF 2008 Page numbers other defendants in the suit. Admittedly, pursuant to execution proceedings taken by the third defendant / second respondent bank against the present petitioners, their properties were brought to sale and in the auction held by the Debt Recovery Tribunal, the plaintiff in the suit / the first respondent purchased them. Pursuant to such sale and through the intervention of the recovery officer, three feet width of pathway from the property of the first judgment debtor / the first petitioner was provided for access to the property of the plaintiff / auction purchaser. Subsequently the suit has been laid for the reliefs claimed for declaration of title, recovery of possession and consequential injunction setting forth a case that by practising a fraud with the assistance of the Taluk surveyor the actual mortgage holding furnished as security to the bank was not brought to sale, but, another property adjacent to that W.P.(C).No.28327 OF 2008 Page numbers mortgage holding, in the proceedings before the Debt Recovery Tribunal and that property was purchased by the plaintiff in auction without knowing that it was not actually the mortgage property. Resisting the suit claims, these petitioners, first and second defendants, filed a written statement in which among other contentions jurisdiction of the court to entertain the suit was also challenged contending that the question posed for consideration can be determined only by the Debt Recovery Tribunal in the proceedings of which the properties were sold and purchased in auction by the plaintiff. Issues were settled in the suit for trial which included the question of jurisdiction as well. At that stage, plaintiff moved an application for the appointment of an advocate commissioner to measure out the plaint properties, which was objected to by the petitioners / defendants 1 and 2 contending that W.P.(C).No.28327 OF 2008 Page numbers the question of jurisdiction raised has to be considered as a preliminary issue. A separate application was also moved by the petitioners / defendants 1 and 2 for considering the question of jurisdiction as a preliminary issue. The learned Munsiff considered the commission application moved by the plaintiff with reference to the objections raised by the defendants and by Ext.P6 order allowed that application. Propriety and correctness of that order is impeached in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. The learned counsel for the petitioners submitted that without examining the question whether the court has jurisdiction to entertain the suit in the facts and circumstances involved in the W.P.(C).No.28327 OF 2008 Page numbers case the commission application should not have been allowed. The court below was not correct in holding that the Debt Recovery Tribunal cannot go into the questions involved in the suit for the reason that it is incompetent to grant the reliefs claimed in the suit, submits the counsel. On the other hand the learned counsel for the first respondent / plaintiff submitted that once delivery of the property in execution proceedings was taken, the question of title, right and possession over the property can be agitated and considered before the appropriate civil court in accordance with law. The contention raised by the petitioners / defendants 1 and 2 that the question of jurisdiction required to be considered as a preliminary issue, according to the counsel, in the given facts of the case, has no merit at all. W.P.(C).No.28327 OF 2008 Page numbers 4. Needless to point out plaintiff has laid the suit mainly canvassing a case that there was misdescription of the property which was brought to sale and auctioned in the proceedings before the Debt Recovery Tribunal. He has a further case that such misdescription occurred on account of the fraud in showing a different property, adjacent to the mortgage holding, and so much so, the auction purchaser / plaintiff who purchased the property suffered irreparable injury. If that be so, the question emerging for consideration when such a dispute arise between the parties to a previous suit or proceeding which court is having competency to examine that question. Whether the plaintiff can file a separate suit to get a declaration that the property which was brought to sale in execution was different from the mortgage property which was covered by the decree for sale. A misdescription W.P.(C).No.28327 OF 2008 Page numbers of the property covered in an execution proceeding, which is brought to sale and put to auction and a dispute between the parties of that proceeding thereof, is a question falling under Section 47 of the Code of Civil Procedure. Whether the mortgage property furnished as security for the loan transaction which alone can be brought to sale as per the terms of the decree has been put to sale or not is a question falling squarely within “execution discharge or satisfaction of decree”. That being so, when a suit is laid by the auction purchaser pursuant to sale and auction in an execution proceeding the execution court alone will have competency to go into that question. The allegation that a mistake occurred with regard to the description of the property brought to sale on account of the fraud committed by the Taluk surveyor has little significance in considering the question which court is competent to resolve that W.P.(C).No.28327 OF 2008 Page numbers controversy. I am not impressed by the submission made by the learned counsel that once delivery of the property is over the execution court is incompetent to examine the question over misdescription of the property which was put to sale and brought to auction by the orders passed by that court. Where that dispute is between the parties, to the previous suit or proceeding necessarily that question has to be gone into by the execution court and no other court. Then the question that emerges for consideration is whether the preliminary issue raised regarding the jurisdiction by the defendants can be considered before trial. It appears prima facie from the rival case presented by the parties that the question of jurisdiction raised in the present case strictly falls within the ambit of a bar of jurisdiction under law and not dependent on mixed questions of facts and law for adjudication, and, W.P.(C).No.28327 OF 2008 Page numbers so much so, that can be considered as a preliminary issue without going into trial on other issues raised in the suit. I find considerable force in the submission made by the learned counsel for the petitioner that appointment of a commissioner to measure out the properties before considering the question of jurisdiction is not legal or proper. Setting aside Ext.P6 order, I direct the learned Munsiff to consider the question of jurisdiction as a preliminary issue and pass appropriate orders in the case. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv