IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 RSA.No. 851 of 2009() --------------------- AS.240/2006 of DISTRICT COURT, PALAKKAD OS.132/1998 of MUNSIFF COURT, CHITTUR (EA.310/05,EP.374/01) .................... APPELLANT/APPELLANT/PETITIONER/OBSTRUCTER: --------------------------------------------------- KUMARAN,S/O.KRISHNANKUTTY, PANNIPERUNTHALA,THEKKEDESOM VILLAGE,CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENTS/ RESPONDENTS 1 & 3 TO 8/RESPONDENTS 1 & 3 TO 8/ DECREE HOLDER AND JUDGMENT DEBTORS 2 TO 7: -------------------------- 1. THE MANAGER,DHANALAKSHMI BANK LIMITED, CHITTUR BRANCH,CHITTUR,PALAKKAD. 2. NANI,W/O.LATE VELU,PANNIPERUNTHALA, THEKKEDESOM VILLAGE,CHITTUR TALUK,PALAKKAD DIST. 3. KANNADASAN,S/O.VELU,-DO- -DO- 4. KRISHNANKUTTY,S/O.NARAYANAN, PANNIPERUMTHALA,THEKKEDESOM, VILLAGE,CHITTUR TALUK PALAKKAD DISTRICT. 5. JAYAMANI,D/O.LATE LAKSHMI AND KRISHNANKUTTY,W/O.CHANDRAN,PAZHANIYAIPALAYAM, KOZHINJAMPARA VILLAGE,CHITTUR TALUK, PALAKKAD DISTRICT. 6. JAYACHANDRAN,S/O. -DO- -DO- 7. INDIRA,D/O.OF LATE LAKSHMI, W/O.BALAKRISHNAN,KUPPAYYANCHALLA,KANAKKANPARA, CHITTUR TALUK,PALAKKAD DISTRICT. ADV. M/S.VARGHESE & JACOB FOR R1 SRI.VIVEK VARGHESE P.J. FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.851 of 2009B --------------------------------------- Dated this 11th day of December, 2009 JUDGMENT Heard counsel on both sides. It is submitted by learned counsel that appellant has not complied with the interim order passed by this court on 21-08-2009. 2. On the strength of an equitable mortgage created by respondent No.2 in favour of respondent No.1, the latter instituted O.S.No.132 of 1998 for realisation of the amount due and obtained a favourable decree against respondent No.2 for realisation of the amount by sale of the property. The decree was put into execution and the property mortgaged was brought for sale and sold in court auction on 03-07-2004. The sale was confirmed on 13-09-2004. While so, appellant who is son of respondent No.2 came with E.A.No.310 of 2005 in E.P.No.374 of 2001 claiming that the property sold and attempted to be delivered over to respondent No.1 belonged to him, he having purchased the same from respondent No.2 as per document No.558/2003. The executing court found that appellant is a transferee pendente lite, is not seeking to enforce any independent right over the property, his claim is only under respondent No.2, the judgment debtor, application is not sustainable and dismissed the same. Learned District Judge before whom appellant prepared A.S.No.240 of 2006 after referring to the relevant provisions of law and binding R.S.A.No.851 of 2009 2 decisions on the point held that appellant could not invoke Order 21 Rule 97 of the Code of Civil Procedure (for short, “the Code”) in so far as he is claiming under the judgment debtor and hence the application is not maintainable. Accordingly the appeal was dismissed. That is challenged in the second appeal urging by way of substantial questions of law whether appellant is entitled to redemption of mortgage and whether finding of the courts below that application is not maintainable are correct. When the matter came up for admission appellant offered to discharge the liability of respondent No.1 on payment of a total sum of Rs.120000/- which respondent No.1 agreed and accordingly two months' time was granted to the appellant to do so. It is submitted by learned counsel for appellant that the undertaking has not been complied. 4. On the merits of contentions raised in the second appeal, it is not disputed that it is to enforce an equitable mortgage that respondent No.1 instituted O.S.No.132 of 1998. It is also not disputed that it is after decree was passed allowing realisation of the amount by sale of mortgaged property and respondent No.1 launched execution as per E.P.No.374 of 2001 that respondent No.2 transferred the same property to her son, the appellant as per document No.558/03. Since the suit is for enforcement of right under the mortgage, interest in immovable property is involved and hence section 52 of the Transfer of R.S.A.No.851 of 2009 3 Property Act(for short, “the Act”) would apply (see M/s. Chitalia Bros Vs. South Indian Bank, Trichur (AIR 1988 Kart 59)). Appellant is a transferee pendente lite and is bound by the decree against his assignor who is none other than his own mother (respondent No.2). 5. It has been held by the Supreme Court in Ittiyachan Vs. Tomy (2001(3) KLT 117) that when the obstructer is not claiming any independent right, or, independent possession and he is claiming under the judgment debtor he cannot come under either Rule 97 or 98 of Order 21 of the Code. (see Usha Sinha Vs. Dinaram (2008 (3) KLT 848). The same view was taken by this court in Ittiyachan Vs. Tomy (2001(3) KLT 117) and Padmaja Vs. Sajeev (2006(1) KLT 265). Therefore, E.A.No.310 of 2005 is not maintainable as rightly found by the courts below. 6. The second appeal suffers from another infirmity. Courts below found and, I agreed that appellant is not claiming any independent right or possession of the property and that the claim he sets up is under respondent No.2, judgment debtor and that too, under a title he claimed to have obtained during pendency of the suit and hence hit by section 52 of the Act. Order 21 Rule 102 of the Code states that nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of the decree for possession of immovable properties by a person to whom judgment debtor has transferred the R.S.A.No.851 of 2009 4 property after the institution of the suit in which the decree was passed or, to the dispossession of any such person. Under Rule 103 of the Code it is only where any application has been adjudicated under rules 98 or 100 that the order made thereon shall have the force and be subject to the conditions as to a regular appeal or otherwise as if it were a decree. In other words since adjudication of the claim made by the appellant does not come under rules 98 or 100 of the Code as he is a transferee pendente lite, order passed after such adjudication will not have the force or effect of a decree as provided under Rule 103. If the order is not a deemed decree, there is no question of preferring a regular appeal. The appeal was therefore not maintainable, not a say about this second appeal. There is no substantial question of law involved in the second appeal. The second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/