IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 CRP.No. 150 of 2009() --------------------- OS.210/1982 of PRL.SUB COURT,TRIVANDRUM .................... REVN. PETITIONER(S): --------------------- N.SURENDRAN, DEVI KRIPA, PEROORKADA, N.C.C. ROAD, THIRUVANANTHAPURAM. BY ADV. SRI.R.KRISHNA RAJ RESPONDENT(S): --------------- 1. S.THANKAPPAN J.K. HOUSE, VATTIYOORKAVU, THIRUVANANTHAPURAM. 2. M.S. MUNAVAR FILMS, REP. BY ITS T.P. BAVA, THYCADU, THIRUVANANTHAPURAM. 3. T.P. BAVA, MUNVAR FILMS ASSOCIATES, THYCADU, THIRUVANANTHAPURAM. ADV. SRI.J.HARIKUMAR FOR R1 SRI.M.HARISHARMA FOR R3 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON 06/07/2009 PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * C.R.P. No. 150 of 2009 * * * * * * * * * * * * * * * * * * Dated: 6-7-2009 JUDGMENT The 3 rd party applicant in E.A. No. 417 of 2006 in E.P. No. 26 of 1999 in O.S. 210 of 1982 on the file of the Sub Court, Thiruvananthapuram , is the revision petition. He challenges the order dated 6-6-2007 in E.A. 417 of 2006. 2. The facts of the case leading to the impugned order are as follows:- The aforesaid suit O.S. No. 210 /1982 was filed on 24-5- 1982. by the first respondent herein namely Thankappan and M/s. J.K. Productions a registered partnership firm represented by its managing partner, the said Thankappan against respondents 2 and 3 herein namely M/s. Munavar Films and its managing partner T.P. Saidalikutty @ T.P. Bava for realisation of a sum of Rs. 1,50,000/- with interest at the rate of six percent per annum on the principal amount from the date of suit till realisation and C.R.P. No. 150 of 2009 -:2:- cost from the defendants. 2. After a chequered career spanning over 10 years the said the suit was eventually decreed ex-parte on 13-11-1992. There was an attachment before judgment in the suit with regard to 51 ½ cents of land comprised in survey Nos. 245/5-1 and 245/3 of Chettivilakam Village. The attachment was effected on 4-6-1982. At a time when the order of attachment before judgment was in force T.P. Saidalikutty @ T.P. Bava, the 2 nd defendant sold 17 Ares (about 43 cents) of land comprised in Survey No. 245 /3 to one K.G. Mathevan on 8-8-1988. On 12- 6-1989 the said Bava sold 3.20 Ares (about 8 cents) of land comprised in Survey No. 245/5-1 to the said K.G. Mathevan. One Haneefa purchased 17.59 Ares (43 ½ cents) of land comprised in survey No. 245/3 on 17-2-1989 from the said K.G. Mathevan. On 24-2-1999 the decree holder filed E.P. 26/1999 before the court below for realisation of the decree amount (which had swelled to Rs. 3,23,968/-) by sale of the properties under attachment. Some time in the year 2006 the Amin came to the C.R.P. No. 150 of 2009 -:3:- property. Thereupon, the petitioner herein who is a stranger to the decree filed a petition to set aside the sale. The said petition was dismissed. The property which was proclaimed for sale was 16 cents of land lying on the eastern side of the 43 cents of land comprised in Survey No. 245/3 belonging to the 2 nd defendant/2 nd J.D. namely T.P. Bava. The said 16 cents had been identified as plot ABCDEFGHIJ shown in red ink in the survey report and plan submitted by Smt. V.K. Sandhya, Advocate Commissioner. Aggrieved by the order dismissing the revision petitioner's application to set aside the sale , he filed W.P.C. No. 8056 of 2005 before this Court. As per an interim direction, this Court called upon the revision petitioner to deposit Rs. 75,000/- as a condition for granting a stay of execution. He did not comply with the said condition and the said Writ Petition was dismissed by this Court. Thereafter the petitioner claims that he did not pursue his application to set aside the sale. On 10-3-2006, the petitioner filed the present application, namely, E.A. 417 of 2006 to issue a Commission assisted by the Taluk Surveyor to ascertain whether C.R.P. No. 150 of 2009 -:4:- the property notified for sale was the very same property identified for delivery. During the further progress of the case the learned counsel appearing for the revision petitioner in the Court below had requested the Court below to treat E.A. 417/06 as a claim petition with a request to set aside the sale. On 13-3- 2006, the 16 cents property was delivered over to the decree holder who had been allowed to purchase the same . The petitioner filed W.P. (c ) No. 7351/06 alleging that instead of delivering the property proclaimed for sale the property belonging to the revision petitioner was delivered over. The said Writ Petition was dismissed by this Court on 13-3-2006 holding that the petitioner could raise all his contentions before the Executing Court. The Executing Court, thereafter, dismissed E.A. No. 417 of 2006. The petitioner filed W.P.( C) 11260 of 2006 contending inter alia that E.A. 417/06 was dismissed without hearing him. As per Annexure A1 judgment dated 20-6-2006, this Court set aside the order dismissing E.A. No. 417 of 2006 and directed the Executing Court to re-consider the said application C.R.P. No. 150 of 2009 -:5:- observing that if it is proved that the property sold and taken delivery of are different properties then the consequences should follow. Thereafter, the Executing Court issued a fresh Advocate Commission assisted by the Taluk Surveyor. The new Commissioner filed Annexure A2 report dated 29-11-2006 along with a plan. Thereafter the learned Sub Judge, after hearing both sides, as per the impugned order dated 6-6-2007 dismissed E.A. No. 417 of 2006. It is the said order which is assailed int his Revision. 3. Advocate Sri. Krishna Raj, the learned counsel appearing for the revision petitioner made the following submissions before me in support of this Revision:- As per agreement for sale dated 29-4-1993 the revision petitioner agreed to purchase 43 ½ cents of land comprised in Survey No. 245/3 from K.G. Mathevan. As per the report dated 29-11-2006 submitted by Adv. Sri. V. Suresh Kumar, the last Commissioner appointed by the Executing Court, the property proclaimed for sale is comprised in re-survey No. 614/18, if . if C.R.P. No. 150 of 2009 -:6:- we go by the boundaries. But as per the original sale proclamation the property identified for sale is 43 cents comprised in re-survey No. 614/30. The total extent of the said R.S. 614 /30 as per revenue records and possession is only 30 cents. Going by the said report of the Advocate Commissioner the property which was actually delivered over to the decree holder is 5.350 cents in Survey No. 614/19 and 10.650 cents in R.S. 614/30. When R.S. No. R.S. 614/30 has only a total extent of 30 cents, the sale proclamation showing that the judgment debtor had 43 cents in R.S. 614 /30 was patently erroneous. The Executing court was not justified in discarding the report and survey plan submitted by Sri. V. Suresh Kumar, the Advocate Commissioner. The court below was not right in holding that E.A. 417 of 2006 was a claim petition. No submission to that effect was made by the revision petitioner's counsel appearing in the court below. E.A. 417/06 was only an application to issue a commission. The court below should have accepted the petitioner's contention that the property which was delivered C.R.P. No. 150 of 2009 -:7:- over to the decree holder was not the property proclaimed for sale and that the property delivered over is the property in the possession of the revision petitioner pursuant to the agreement dated 29-4-1993 for sale executed in favour of the revision petitioner. In fact, the revision petitioner has instituted a suit for specific performance of the said agreement against Haneefa to whom the revision petitioner had paid Rs. 10 lakhs as evidenced by various receipts produced by him before the court below. 4. I am afraid that I find myself unable to agree with the above submissions made on behalf of the claimant. The facts already adverted to in paragraphs 2 above will clearly show that at a time when attachment before judgment was in force in the money suit, the defendant T.P. Bava had on 8-8-1988 sold 17 Ares (approximately 43 cents) of land comprised in Sy. No. 245/3 of Chettivlakam Village to one K.G. Mathevan. The defendant made a further sale of 2.30 Ares (approximately 8 cents) of land comprised in Sy. No. 245/ 5-1 to the very same K.G. Mathevan. C.R.P. No. 150 of 2009 -:8:- On 17-2-1989 one Haneefa purchased 17.59 Ares (approximately 44 cents) of land comprised in Sy. No. 245/3 from K.G. Mathevan referred to above. It was from the said Haneefa that the revision petitioner claims to have agreed to purchase 43 ½ cents of land comprised in Sy. No. 245/3 on 29- 4-1993. Except producing a photocopy of the alleged agreement dated 29-4-1993 and certain self serving receipts allegedly issued by Haneefa for having received Rs. 10,0000 lakhs (Rupees ten laksh only) from the revision petitioner, he did not produce the original agreement nor did he mount the witness box to speak in terms of his case. The revision petitioner has no case that he has other properties in the vicinity of the property proclaimed for sale and delivered over other than the 43 ½ cents of land allegedly forming the subject matter of the agreement for sale. It is pertinent to note that the sale of 43 cents of land comprised in Sy. No. 245/3 by T.P. Bava (the defendant/judgment debtor) was on 8-8-1988 which is six years after the institution of the suit and at a time when the order C.R.P. No. 150 of 2009 -:9:- of attachment before judgment over the property was in force. If so, the sale of the property by the defendant in favour of K.G. Mathevan on 8-8-1988 was not only hit by lis pendence but was also void and inoperative by virtue of Sec. 64 C.P.C. Resultantly, no title could validly pass in favour of K.G. Mathevan. Consequently, Haneefa who purchased the property on 19-2- 1989 from K.G. Mathevan also did not derive any title over the property. It is from the said Haneefa that the Revision Petitioner claims to have agreed to purchase the property on 29-4-1993. The revision petitioner cannot have any semblance of title over the property . Even assuming that he has managed to create documents to the effect that he is in possession of the property, it is well settled that mere possession of the property by the claimant will not be sufficient and the claimant will have to show that he has a right to possession independent of the judgment debtor. (See Ittiyachan v. Tomy - 2001 (3) KLT 117). Here his claim is, first of all not independent of the judgment debtor. Secondly, the genesis of his title itself is under an invalid private C.R.P. No. 150 of 2009 -:10:- sale by T.P. Bava the defendant at a time when the order of attachment over the property was in force. Besides, it was hit by lis pendens. The argument that the learned counsel appearing for the revision petitioner in the court below did not request the court to treat E.A. 417/06 as a claim petition with a request for setting aside the sale, is ill-founded. The order sought to be revised specifically says that the counsel appearing for the revision petitioner did request the court below to treat E.A. 417/06 as a claim petition. The said statement in the order is the last word and it is not open to the revision petitioner to take exception to the said statement in the order. If E.A. No. 417 of 2006 was not liable to be treated as a claim petition, but merely as an application to issue a fresh commission as it purported to be, then E.A. 417/06 stood allowed on 20-9-2006 with the issue of a fresh commission. The proceeding could thereafter continue only if what is recorded in the impugned order is true. 5. The property which was identified by the Advocate Commissioner Smt. V.K. Sandhya with the assistance of a retired C.R.P. No. 150 of 2009 -:11:- Head Surveyor is the plot shown as ABCDEFGHIJ admeasuring 6.47 Ares corresponding to 16 cents comprised in Sy. No. 245/3 of Chettivilakom Village and marked in red ink with clear measurements as per the Survey Plan dated 6-3-2006 filed along with the report dated 10-3-2006. The said property is shown as lying north-south towards the eastern portion of the 43 cents of land comprised in Sy.No. 245/3. The very same property has been identified by the Advocate Commissioner V. Suresh Kumar in the plan dated 27-11-2006 submitted along with his report dated 29-11-2006. The only change is that instead of showing the old Sy. No. 245/3 the 2 nd Commissioner has shown the corresponding re-survey Nos. as 614/19 and 614/30. Merely because the sale proclamation has shown only re-survey No. 614/30, and has not shown re-survey No. 614/19, which takes in only 5.350 cents out of the 16 cents delivered, it does not follow that the sale proclamation was defective or that the consequent delivery is illegal. This is because the old Survey No. 245/3 which takes in the entire property proclaimed for sale and C.R.P. No. 150 of 2009 -:12:- delivered over has been specifically mentioned in the sale proclamation. When the only claim of the revision petitioner is that he agreed to purchase 43 cents including the 16 cents proclaimed for sale in Sy. No. 245/3, and he has admittedly not obtained any sale deed from Haneefa who himself got the property from K.G. Mathevan, who in turn obtained the property from the defendant/judgment debtor pendente lite and in breach of Sec. 64 C.P.C., the revision petitioner had absolutely no locus standi to object to the sale or delivery of the said 16 cents of land. His only claim was over 43 cents of land comprised in Sy. No. 245/3 which originally belonged to the judgment debtor. The petitioner does not claim any other property under any other independent title. Hence his claim, that too without any semblance of title was under the judgment debtor. The court below was therefore fully justified in dismissing E.A. 417/06. The very fact that the learned counsel for the judgment debtors were also supporting the revision petitioner indicates that the transfers pendente lite were collusive and fraudulent transfers brought C.R.P. No. 150 of 2009 -:13:- into existence with a view to frustrate the decree holder. I do not find any merit at all in this Revision which is accordingly dismissed with costs. Dated this the 6th day of July 2009. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ ani.