IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 CMA.No. 136 of 2001() --------------------- AGAINST THE ORDER DATED 13/12/2000 IN EA.63 /1995 IN OS.114/1980 of PRL.SUB COURT, KOZHIKODE .................... APPELLANT: -------------- M.M.SURENDRAN, AGED 50 YEARS S/O.CHOYI, RESIDING AT MAMANTE MEETHEL HOUSE, NEAR BADAGAR RAILWAY STATION (P.O.) BADAGARA, KOZHIKODE DISTRICT. BY ADV. SRI.C.VALSALAN RESPONDENTS: --------------- 1. C.K.DHARMADAS, AGED 52 YEARS, VADAKARA AMSOM DESOM, P.O.VADAKARA. 2. P.P.ABDURAHIMAN S/O.P.K.KOYA, AGED 41 YEARS, KADALUNDY AMSOM, PAZHANCHANNUR DESOM, P.O.KADALUNDY 3. P.P.MUHAMMED KOYA HAJI, AGED 64 YEARS S/O.KUNHIKKOYA HAJI, A.K.HOUSE, (P.O) CHALIYAM, KOZHIKODE TALUK 4. THALANCHERY ABDUL RAZAK S/O. MOIDEENKUTTY AGED 33 YEARS KADALUNDI AMSOM, PAZHANCHANNUR DESOM KOZHIKODE TALUK,. 5. THAIKKANDAPPURATH BASHEER, AGED 36 YEARS S/O. ABDURAHIMAN, KADALUNDI AMSOM DESOM KOZHIKODE TALUK. 6. KUNJEEBI, AGED 29 YEARS D/O.NOT KNOWN MELEVEETTIL KADALUNDI AMSOM DESOM KOZHIKODE TALUK. 7. THALANCHERRY MODIEEN KUTTY S/O. KOMUKUTTY, AGED 70 YEARS. KADALUNDI AMSOM DESOM KOZHIKODE TALUK ADV. SRI.R.SUDHISH FOR R4 TO 7 SMT.MANJU SUDHISH SRI.JACOB ABRAHAM FOR R3 SMT.KOCHUMOL KODUVATH FOR R3 SMT.THUSHARA.V FOR R1 THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 4/1/2010, ALONG WITH CMA NO.135 OF 2002. THE COURT ON SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 1875 OF 2001 ON C.M.A. NO. 136 OF 2001 DISMISSED. SD/- A.K.BASHEER (JUDGE) SD/- M.L.JOSEPH FRANCIS (JUDGE) 4.1.2010 //TRUE COPY// PA TO JUDGE A. K. BASHEER & JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.M.A. Nos: 136 OF 2001 & 135 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of January, 2010. JUDGMENT A. K. Basheer J., These two appeals are being disposed of by this common judgment, since the parties and issues involved in them are common. 2. The appeals are directed against the orders passed by the executing court on some applications filed by obstructionists under Order 21 Rule 90 of Code of Civil Procedure. 3. The common appellant had admittedly purchased the property in question in a court sale in execution of a decree in O.S. No. 114 of 1980. It is beyond controversy that the appeal filed against the said judgment and decree dated September 18, 1982 was confirmed in appeal on March 22, 1990. 4. In E.P. No. 139 of 1992, the above decree was sought to be C.M.A. Nos: 136 OF 2001 & 135 OF 2002 :2: executed by sale of the immovable property which admittedly belonged to respondents no. 2 herein, the judgment debtor. The sale was held by the Execution court on March 29, 1994. The sale was confirmed on June 30, 1994 and sale certificate was issued to the appellant on October 1, 1994. 5. All the execution applications under Order 21 Rule 90 were filed after confirmation of the sale and issuance of sale certificate in favour of the appellant. 6. The common contention raised by the obstructionists in these applications was that they were bonafide purchasers for valid consideration and that they were never put on notice before the property was sold in court auction. It was further contended that the sale was a collusive affair between the decree holder and auction purchaser (appellant). Yet another contention raised by the obstructionists was that the sale effected by the judgment debtor in C.M.A. Nos: 136 OF 2001 & 135 OF 2002 :3: favour of these obstructionists cannot be illegal or invalid, since there was no interdiction from any court against alienation. In other words the contention was that there was no order of attachment of the property during the pendency of the suit or appeal. We do not propose to refer to some other incidental and ancillary contention raised by some of the obstructionists in their respective applications at this stage. In our view, the order passed by the court below is liable to be set aside for reasons more than one. 7. It may be noticed that the court below has accepted the case projected by the obstructionists primarily for the reason that they were not put on notice before the court sale. Curiously the court below took the view that all these obstructionists were bonafide purchasers for valid consideration. Significantly none of the applicants (except one) was examined and only one so called title deed is seen produced. There was absolutely no material to C.M.A. Nos: 136 OF 2001 & 135 OF 2002 :4: substantiate any of the contentions raised by the respondents/ applicants. Nevertheless the court below has proceeded to hold in a casual and mechanical manner that the court sale was vitiated by fraud. It is pertinent to note that the judgment debtor had never resisted or obstructed the sale proceedings. 8. As mentioned earlier, all these applications by the obstructionist were filed after confirmation of the sale. More importantly, the so called assignment deed were admittedly executed after the decree passed by the trial court and during the pendency of the appeal. The Court below has proceeded at a tangent and held that all the applicants are bonafide purchasers without keeping in view the relevant aspects of the issue, particularly the fact that all these alienation in favour of the obstructionist were effected after the decree. 9. In this context, the learned counsel for the appellant has C.M.A. Nos: 136 OF 2001 & 135 OF 2002 :5: invited our attention to a decision of their Lordships of the Supreme Court in Usha Sinha v. Dina Ram and Others (2008 KHC 4505) in which it has been held that purchaser from a judgment debtor is presumed to be aware of the proceeding before a court of law. The court observed further thus “It is thus settled law that a purchaser of suit property during the pendency of litigation has no right to resist or obstruct execution of decree passed by a competent Court. The doctrine of 'lis pendens' prohibits a party from dealing with the property which is the subject matter of suit. 'Lis pendens' itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit”. 10. Having heard learned counsel for the appellant and learned counsel for the contesting respondents, we are of the view that the matter requires further consideration. C.M.A. Nos: 136 OF 2001 & 135 OF 2002 :6: 11. Therefore the impugned orders are set aside. The court below shall pass fresh orders in the matter in accordance with law, after affording sufficient opportunity to the parties to be heard. We make it clear that we have not considered the merit of any of the contentions raised by the parties. It will be open to the parties to further evidence, if so advised, before the executing court to substantiate their rival contentions. The parties shall appear before the court below on November 5, 2010. A. K. BASHEER, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/