IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 19645 of 2008(L) -------------------------- AGAINST THE ORDER DATED 02/02/2007 IN EP 31/03 IN OS.187/2001 of MUNSIFF COURT,HARIPAD .................... PETITIONER(S): --------------- UDAYAN, S/O.SADANANDAN, UDAYA BHAVANAM, THAMALLACKAL VADAKKUM MURI, KUMARAPURAM VILLAGE. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S): --------------- 1. SURENDRAN, S/O.GOVINDAN, THUNDUPARAMBIL, KIZHAKKEKARA VADAKKUMMURI, THRIKKUNNAPUZHA VILLAGE. 2. SAVITHRI, D/O. NARAYANI, OTTATHENGIL, THAMALLACKAL THEKKUM MURI, KUMARAPURAM VILLAGE. 3. SADANANDAN, S/O. KRISHNA PANICKER, -DO- 4. SULOCHANA, D/O. NARAYANI, -DO- 5. SAHADEVAN, S/O.KRISHNA PANICKER, -DO- 6. SATHEESAN, S/O.KRISHNA PANICKER, -DO- ADV. SRI.P.R.VENKETESH FOR R1 SRI.V.PREMCHAND FOR R2 TO R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/10/2009 , ALONG WITH WPC NO. 25724 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19645 of 2008 APPENDIX Petitioners Exhibits: Ext.P1: True copy of the sale in favour of petitioner due to deficiency in depositing the amount as per order dt. 2.2.2007 Ext.P2: True copy of the order in E.P. 31/2003 in O.S. No. 187/2001 of Munsiff Court, Harippad dt. 2.2.2007 Ext.P3: True copy of the affidavit and petition in EA No. 116/2007 in O.S.No. 187/2001 of Munsiff Court, Harippad Ext.P4: True copy of order in E.P 11/03 in O.S. 35/2000 of Munsiff court, Harippad dt.2.2.2007 Ext.P5: True copy of the petition in E.A. No. 144/2007 Ext.P6: True copy of E.A No.141 of 2007 in E.P. No.11/03 in O.S.No.35 of 2000 Ext.P7: True copy of the order dt.22.5.2008 in E.P. No. 11 of 2..3 in O.S.No.35 of 2000 Before the Munsiff Court, Harippad. Ext.P8: True copy of the order dt.22.5.2008 in E.P.No. 31 of 2003 in O.S.No. 187/2001 /True copy/ P.A. To Judge K. SURENDRA MOHAN , J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) Nos.19645 & 25724 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of October, 2009 J U D G M E N T Both these writ petitions are filed challenging Exts. P7 and P8 orders passed by the Munsiff's Court, Harippad in execution proceedings. The execution proceedings were initiated for enforcement of the decrees in O.S.Nos.35/2000 and 187/2001 respectively. 2. The petitioner in W.P(C) No.19645/2008 is the decree holder in O.S. No.187/2001 of the Munsiff's Court, Harippad. The first respondent in the writ petition is the decree holder in O.S. No.35/2000. As per the decree in O.S.No.35/2000, the first respondent has been held entitled to recover an amount of Rs.25,000/- with interest thereon at the rate of 12% per annum from late Narayani who was the defendant in the said suit. As per the decree in O.S. No.187/2001, the writ petitioner has been held entitled to recover an amount of Rs. 70,000/- with interest thereon at the rate of 12% per annum from the same Narayani who is the WPC.Nos. 19645 & 25724 of 2008 : 2 : defendant in the said suit also. The amounts were due from one Sahajan, S/o.Narayani, who is no more. The amount was sought to be recovered from Narayani for the reason that she had succeeded to the estate of late Sahajan as his legal heir. 3. Both the writ petitioner and the first respondent filed execution petitions for enforcement of the decrees passed in their favour. They proceeded against the only item of property that had devolved on Narayani from late Sahajan, which is an extent of 4.70 Ares. The said property was brought to sale and was initially sold in Court auction in favour of the writ petitioner. However, the sale was not confirmed in his favour for the reason that he had not remitted the amount that was to be deposited by him, pursuant to the Court auction. In the meanwhile, E.A. No.99/2003 was filed by the first respondent, which is Ext.P1 seeking rateable distribution of the proceeds of the sale. As per Ext.P2 order dated 2.2.2007, the said petition was allowed and by the same order, the court declined to confirm the sale in favour of the writ petitioner. Thereafter, a fresh sale was ordered. A similar WPC.Nos. 19645 & 25724 of 2008 : 3 : petition seeking rateable distribution of the assets of Narayani was filed by the writ petitioner in O.S.No.187/2001 as E.A. No.116/03, which is Ext.P3. As per Ext.P4 order of the court below, the said petition also was allowed. Thereafter, fresh sale was ordered by the court below. Though the earlier petitions filed by the writ petitioner and the first respondent, were already allowed, they filed fresh petitions for rateable distribution evidenced herein by Exts. P5 and P6, in both the suits. 4. In the above circumstances, the sale that was ordered by the court below was conducted and the property was sold in auction to a stranger. However, on the 6th judgment debtor depositing the sale price in court, the sale was set aside. Separate orders evidenced by Exts.P7 and P8 in both the writ petitions were passed by the court below, accepting the amount so deposited and setting aside the sale conducted on 7.12.2007. Thereafter, the court below has, vide Ext.P7 order directed the first respondent to file a statement showing the amount due to him and to pay the entire amount WPC.Nos. 19645 & 25724 of 2008 : 4 : due to him on the basis of the said statement. The balance amount if any is directed to be rateably distributed to the decree holder in O.S. No.187/2001, who is the writ petitioner in WP(C).No.19645/2008. As per Ext.P8 order, the court below has ordered that the amounts due to the first respondent would be paid in full and the balance amount would be rateably distributed to the writ petitioner in W.P.(C)NO. 19645/2008. The writ petitioner has challenged the said orders in his writ petition. 5. Exts. P7 and P8 orders have further directed that the balance amount if any would be recovered by the decree holder by sale of the property of the first judgment debtor in court auction. The above portions of the Ext.P7 and p8 orders are challenged in W.P.(C)No. 25724/2008 by the legal representatives of Narayani, the original judgment debtor who has since passed away. 6. I have heard Mr.Subashchandra Bose, counsel for the writ petitioner in W.P.(C)No.19645/2008 and Mr.V. Premchand, counsel for the writ petitioner in WP(C) WPC.Nos. 19645 & 25724 of 2008 : 5 : No.25724/2008. I have also perused the records of the case. I have considered the contentions of the rival parties, anxiously. 7. It is clear from, Exts.P2 and P4 orders passed by the court below that the applications filed by the decree holder in O.S. No. 187/2001 and the decree holder in O.S. No. 35/2000 seeking rateable distribution of the proceedings of the sale were allowed by the court. The said orders have not been set aside or modified and is still in force. However, it is seen that the parties had submitted fresh applications seeking rateable distribution again as per Exts.P5 and P6. When the very same property was being proceeded against for satisfying the decree debts in two different suits simultaneously, the court had the option to decide whether to permit rateable distribution or to permit one of the decree debts to be satisfied first before satisfying the other decree debt. Having decided to permit rateable distribution of the assets of late Narayani to satisfy the decree debts in both the suits, it was not open to the court below to adopt a different course at a later point of time without any rhyme or reason. Exts.P7 and P8 orders do WPC.Nos. 19645 & 25724 of 2008 : 6 : not state any reason for directing that the decree in O.S.No.35/2000 should be satisfied first and the balance amount if any should alone be utilized for satisfying the decree debt in O.S. No 187/2001. Therefore, Exts.P7 and P8 orders to the extent they direct satisfaction of the decree debt in O.S. No. 35/2000 first, in preference to the decree debt in O.S.No.187/2001 is unjustified and not supported by any reasons. Therefore, the said direction is liable to be set aside. I do so. 8. It is an admitted case that the amount claimed by the decree holders in both O.S.No.35/2000 and O.S. No.187/2001 were due from late Sahajan and that late Narayani owed no amount to the said persons. Therefore, she was liable to satisfy the debts of late Sahajan only to the extent of the value of the property inherited by her from late Sahajan. In view of the above, the direction of the court below in Exts.P7 and P8 orders that the decree holder shall be at liberty to sell the property of the first judgment debtor by court auction for realisation of the amounts due from Sahajan WPC.Nos. 19645 & 25724 of 2008 : 7 : is also without jurisdiction and unsustainable. In view of the above both the writ petitions are allowed. The directions of the learned Munsiff, Harippad contained in the impugned orders evidenced herein by Exts. P7 and P8 are set aside, to the extent they direct that the decree debt in O.S.No. 35/2000 shall be satisfied first and that the balance amount available should be utilized for satisfying the decree debt in O.S.No. 187/2001 and to the further extent they direct that the decree holder in O.S.No.187/2001 shall be at liberty to recover the balance amount due by sale of the property of the first judgment debtor. The court below is directed to distribute the sale proceeds of the property sold in court auction, namely, the amount deposited by the 6th judgment debtor, rateably towards satisfaction of the decree debts in both the suits viz, O.S.No.35/2000 and O.S. No.187/2001. In the circumstances of the case there will be no order of costs. ( K. SURENDRA MOHAN, JUDGE) jma