IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH JANUARY 2008 / 17TH POUSHA 1929 ESA.No. 5 of 2000 AS.306/1993 OF ADDL.DISTRICT COURT, THRISSUR EP. 117/1991 IN OS.446/1989 OF MUNSIFF COURT,CHAVAKKAD ............................. APPELLANT/(OBSTRUCTOR NO. 1-APPELLANT NO.1) P.V. BALASUBRAMANIAN, S/O. SANKUNNI PATHIYAR, BHAVANA, KADIKKAD, P.O. PUNNAYOORKULAM, THRISSUR DIST. BY ADV. SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SRI.ANISH S.AMBADY RESPONDENTS/(RESPONDENT, DECREE HOLDER, LRs OF PETITIONER AND OBSTRUCTORS 2 AND 3 IN THE EXCUTING COUNTER- RESPONDENTS 1,2 AND 4 TO 11 AND APPELLANTS 2 AND 3 IN THE LOWER APPELLATE COURT) 1. KOCHUKUNJAN, S/O. THOLATH ITTOOP, PORKULAM P.O. PAZHANJI VIA, THALAPPILLY TALUK, THRISSUR DIST. 2. SAKKARIA, S/O. PULIKKOTTIL THAVUNNI, MANGAD VILLAGE AND DESOM, THALAPPILLY TALUK, THRISSUR DIST. 3. ACHAMMA JOB, GANESAPURAM, RAUNANPETTA, III STREET, CHENNAI. 4. ABRAHAM C.K., CHEERAN HOUSE, KANJIRANTHINGAL, P.O. KATTAKAMPAL, THALAPPILLY TALUK, THRISSUR DIST. 5. THABEETHA BABY, NO. 197, ANANDAPURAM, PC PALAYAM, BANGALORE- 560036. E.S.A NO. 5/2000 6. SALOMAN C.K., CHEERAN HOUSE, WEST KURUKKAMPARA, P.O. KUNNAMKULAM, THRISSUR DIST. 7. BABY ZACHARIA, PULIKKOTTIL HOUSE, P.O. MANGAD, VIA PAZHANJI THALAPPILLY TALUK, THRISSUR DIST. 8. C.K. WILSON, CHEERAN HOUSE, KANNACHAMTHODU ROAD, P.O. PACHALAM, ERNAKULAM. 9. KOCHUMARY RAJAN, KOLADY HOUSE, P.O. CHOWANOOR, VIA KUNNAMKULAM, THRISSUR DIST. 10. C.K. JAIMS, CHEERAN HOUSE, ARUVAI, NEAR MD COLLEGE, VIA PAZHANJI, THALAPPILLY TALUK, THRISSUR DIST. 11. V.C. INDIRA, W/O. P.V. BALASUBRAMANIAN, KADIKKAD, P.O. PUNNAYOORKULAM, THRISSUR DIST. 12, SUSHEELA, D/O. P.V. BALASUBRAMANIAN, KADIKKAD, P.O. PUNNAYOORKULAM, THRISSUR DUST. *13. KOCHANNA BENNY, W/O. BENNY, AGED 42 YRS, 2/42, GANDHI NAGAR, KOUNDOPALAYAM, COIMBATORE, CHENNAI. *ADDL. R13 IS IMPLEADED AS PER ORDER DATED 08/12/2000 IN CMP NO. 2345/2000. BY ADVS.SRI.K.P.DANDAPANI(SR.) --- R13 SRI.C.A.JOY -- R1 SMT.M.R.SREELATHA -- R2 TO R10 THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... E.S.A.No. 5 OF 2000 ............................................ DATED THIS THE 7TH DAY OF JANUARY, 2008 JUDGMENT First respondent is the decree holder and second respondent, the judgment debtor in O.S.446 of 1989. E.P.117 of 1991 was filed for execution of the decree. The property was put up for sale and was sold in court auction on 22.1.1992. It was purchased by Kakkappan, the auction purchaser. The sale was confirmed on 30.3.1992, Thereafter the auction purchaser filed E.A.430 of 1992 for taking delivery of the property. Appellants were impleaded as persons obstructing delivery. Appellants contended that they purchased the property as per registered sale deed dated 3.1.1991 and were not parties to the suit and so the decree is not binding on them and they are bonafide purchasers and therefore delivery cannot be taken. 2. Learned Munsiff, as per order dated 25.8.1993, rejected the claim of appellants, holding that encumbrance certificate show that property was attached as early as on 4.9.1989 and appellants purchased the property only on 3.1.1991 and as the Encumbrance certificate show that property was under attachment earlier, they cannot claim to be bonafide purchasers ESA 5 OF 2000 2 and auction purchaser is entitled to take delivery of the property. Appellants challenged that order before District Court, Thrissur in A.S.306 of 1993. When the appeal was pending, the auction purchaser, 3rd respondent in the first appeal, died on 5.1.1997. This fact was not brought to the notice of the court when appeal was disposed of. As per judgment dated 22.12.1999, learned District Judge, confirming the order of executing court, dismissed the appeal. Thereafter second appeal was filed. As the auction purchaser died on 5.1.1997, appellant filed I.A.746 of 2000 before executing court to record respondents 3 to 12 as the legal heirs of deceased auction purchaser, 3rd respondent in the first appeal. As per order dated 1.4.2000, the petition was allowed and respondents 3 to 12 were recorded as the legal heirs of deceased 3rd respondent in the first appeal. In the second appeal, apart from the decree holder and judgment debtor, appellants impleaded them as the legal heirs of deceased auction purchaser. When the appeal came up for admission, notice was ordered to respondents. As it was submitted that parties are negotiating for a settlement and it appeared that the case could be settled between the parties, appeal was referred to High Court Permanent Lok Adalath but no settlement was arrived at ESA 5 OF 2000 3 and records were sent back. 3. Learned counsel appearing for appellants and respondents were heard. In the second appeal, additional 13th respondent got herself impleaded as per order in CMP 2345 of 2000, she being the daughter of the auction purchaser. 4. Learned counsel appearing for appellants argued that legal heirs of auction purchaser did not file application for delivery after the death of the auction purchaser as provided under the rules and therefore on that ground delivery cannot be taken. Learned counsel also argued that the property was purchased as early as on 3.1.1991 and the property was sold only on 22.1.1992 and in such circumstances, it should have been found that the court sale is not binding on the appellants. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. The encumbrance certificate produced establish that the property was attached before judgment on 4.9.1989 itself. Appellants purchased the property only on 3.1.1991. Hence as rightly found by courts below, appellants are not entitled to cause any obstruction to the delivery and the auction purchaser is entitled to take delivery of the property. ESA 5 OF 2000 4 6. The argument of learned counsel is that even though application for delivery filed by the auction purchaser was in time, as he had executed a will by which 13th respondent is claiming right as his legatee under the will, an application has to be filed by the legatee within the time and as it is not filed, she is not entitled to take delivery of the property. This is not a fact to be taken into consideration in this appeal. In this appeal, the only question is whether appellants are entitled to cause any obstruction to the delivery. As appellants are not entitled to cause any obstruction, the appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-