IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 Ex.SA.No. 12 of 2011() ---------------------- E.A.NO.725/2001 & 606/2001 IN E.P.NO.202/1998 IN OS.393/1993 of PRINCIPAL SUB COURT, PALAKKAD AS.334/2007 of II ADDL. DISTRICT COURT, PALAKKAD .................... APPELLANT/APPELLANT/PETITIONER ---------------------------------------------------------- J.JOSEPH S/O.ITTY JOSEPH, 14/171, AMBATTUPALAYAM, CHITTUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): RESPONDENTS/RESPONDENTS -------------------------------------------------------------------- 1. T.V.RAMANI, S/O.T.R.VISWANATHA IYER, RESIDING AT 7/603, EASWARAKRIPA, COLLEGE ROAD, PUTHUR AMSOM, PALAKKAD-636010. 2. P.E.SWARNAM, W/O.C.RAMACHANDRAN, RESIDING AT NO.38, SECOND STREET, TATABAD, COIMBATORE-635140. 3. P.E.SANTHA, W/O.T.V.RAMANI, RESIDING 7/603, EASWARAKRIPAR, COLLEGE ROAD, PUTHUR AMSOM, PALAKKAD-636010. 4. M/S.SREE MEENAKSHI TILE WORKS, CHITTUR, PALAKKAD-517001. 5. M.R.S.SHANMUGHAM, S/O.MURUGAPA CHETTIAR, 223, SHNMUGHA NILAYAM, SAMBANDHAM ROAD, R.S.PURAM, COIMBATORE- 627756. 6. M.R.DAIVANA AACHI,W/O.MURUGAPPA CHETTIAR SREE MEENAKSHI TILE WORKS, CHITTUR, PALAKKAD-517001. 7. S.VALLIYAMMA, W/O.M.R.S.SHANMUGHAM, NO.2233 SHANMUGHA NILAYAM EAST SAMBANDHAM ROAD, R.S.PURAM COIMBATORE-627756. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 SRI.T.C.SURESH MENON FOR R1 SRI.JIBU P THOMAS FOR R1 SRI.P.S.APPU FOR R1 SRI.C.A.ANOOP FOR R1 SRI.MATHEWS RAJU FOR R1 THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Ex.S.A. No. 12 OF 2011 =========================== Dated this the 28th day of July,2011 JUDGMENT First respondent is the the auction purchaser of the properties sold in court auction in E.P.202/1998 in O.S.393/1993 of Sub Court, Palakkad. Appellant is the third party who filed E.A.725/2001 before the executing court under Rule 97 and 99 of Order XXI of the Code of Civil Procedure contending that the property shown in E.A.725/2001 namely 3 and 3/4 cent belonged to him under Ext.A1 sale deed executed by the judgment debtor on 2.6.1998 and he has title to that property and the auction purchaser first respondent is not entitled to take delivery of the property. First respondent resisted the petition contending that the property claimed by the appellant forms part of the property put up for sale in Ext.S.A.12/2011 2 E.P.202/1998 and purchased by him covered under Ext.B1 sale certificate and appellant who is claiming right under a sale deed executed by the judgment debtor subsequent to the date of the decree is not entitled to cause any obstruction to the delivery of the property. Executing court as per order dated 17.11.2007, finding that the property claimed by the appellant forms part of the property sold in execution of the decree and purchased by the first respondent auction purchaser under Ext.B1 dismissed the petition. Appellant challenged the judgment before District Court, Palakkad in A.S.334/2007. Additional District Judge on reappreciation of the evidence confirmed the findings of the learned Sub Judge and dismissed the appeal. It is challenged in the second appeal. 2. Learned senior counsel appearing for the appellant and learned counsel appearing for the first respondent, who appeared on his own, were heard. 3. The argument of the learned senior counsel Ext.S.A.12/2011 3 is that though the property covered by Ext.B1 sale certificate was attached before judgment in O.S.393/1993 and the property was sold on 9.4.2002 and was purchased by the first respondent, the property covered under Ext.A1 will not form part of the property covered under Ext.B1 and therefore the courts below were not justified in rejecting the claim of the appellant. Learned counsel pointed out that as per Ext.B2 and B3 the judgment debtor obtained 15 cents of property, though the document shows only 12 cents and under Ext.B1 sale certificate first respondent obtained right over 12 cents alone and he had already taken delivery of that extent of the property which was subsequently alienated under Ext.A7 in favour of Lillikutty and under Ext.A8 in favour of Prabhavathy and therefore first respondent has no right over any extent of land in addition to the said property and courts below were not justified in holding that the property covered under Ext.A1 forms part of the property covered under Ext.B1 Ext.S.A.12/2011 4 sale certificate. Learned counsel argued that as seen from Ext.B1 sale certificate the property purchased by the first respondent lies only in survey No.2810 and the property claimed by the appellant under Ext.A1 sale deed is in survey No.2761 and Ext.C1 report and C2 plan submitted by the Commissioner shows that the major portion of the disputed building lies in survey No.2761 and not a microscopic minor portion as found by the executing court. Learned senior counsel also argued that the report and plan submitted by the Commissioner show that building No.171 covered under Ext.A1 sale deed stands separately and there is a demarcating wall between the remaining two buildings and on a proper appreciation of the evidence it is absolutely clear that the property obtained by the first respondent under Ext.B1 sale certificate is only the property which lies to the east of the property covered under Ext.A1 sale deed and therefore courts below were not justified in dismissing the petition filed by the appellant. Ext.S.A.12/2011 5 Learned counsel also argued that in any case the courts below should have found that to decide the claim raised by the appellant the properties are to be properly surveyed and identified and based on the materials available, it cannot be found that the property claimed by the appellant under Ext.A1 sale deed forms part of the property covered under Ext.B1 sale certificate. 4. Learned counsel appearing for the first respondent pointed out that both the executing court and the first appellate court considered the evidence in detail and found that Ext.B1 sale certificate takes in three buildings 11/144, 11/143 and 11/145 and Ext.B4 to B6 property tax demand register extracts would establish that building No.14/171 claimed by the appellant under Ext.A1 was originally building No.11/145, a building covered under Ext.B1 sale certificate and in such circumstances there is no reason to interfere with the factual findings of the courts below. 5. The fact that the property belonging to the Ext.S.A.12/2011 6 judgment debtor, who obtained it under Ext.B2 and B3 sale deeds were attached before judgment under Rule 5 of Order XXXVIII of Code of Civil Procedure, in O.S.393/1993 as per order in I.A.2727/1993 is not disputed. A decree was passed against the judgment debtor on 29.9.1997. E.P.202/1998 was filed for execution of the decree. The property was sold in court auction on 9.4.2001. The court sale in favour of the first respondent auction purchaser was confirmed on 20.8.2001. Ext.B1 sale certificate was also issued. It is true that a portion of the property covered under Ext.B1 sale certificate was already taken delivery by the first respondent and subsequently under Ext.A7 assignment deed 3.10 cents was sold to Lillikutty and under Ext.A8 sale deed the remaining property taken delivery was sold in favour of Prabhavathy. Ext.B1 sale certificate shows that the property which was sold in execution of the decree in O.S.393/1993 consists of three buildings with door No.11/143, 11/144 and 11/145. True, the Ext.S.A.12/2011 7 survey number shown is only 2810 and the extent shown is 12 cents. It is the admitted case that though extent of the property obtained by the judgment debtor under Ext.B2 and B3 is shown as 12 cents, the actual extent is about 15 cents. The property which was sold in execution of the decree and purchased by the first respondent definitely include building No.11/145. In the light of Ext.B1 sale certificate this fact cannot be disputed. Ext.B6 the property tax demand register for the period from 1993-94 to 1997 to 1998 establishes that the previous door number of building No.14/171 was 14/152. The name of the owner is shown as the appellant. It was entered as per proceedings 28-7-1998 evidently after Ext.A1. It also shows that the building No.14/170 with old building No.14/151 is owned by Lillikutty the assignee under Ext.A7 and the owner of the building No.14/169 with old building No.14/150 is Prabhavathy the assignee under Ext.A8. They were entered as per proceedings No.4164/98 and 4965/03 Ext.S.A.12/2011 8 based on Exts.A7 and A8 sale deeds. Ext.B5 property tax demand register for the period 1988 to 31.3.1993 shows that the building No.14/171 with previous No. 14/152 was in the occupation of Nandakumar a Lecuturer in the College. It establishes that the old building number was 11/145. It also shows that old number of building No.14/170 was 14/151 and its previous number was 11/144. It also shows that old number of building No.14/150 was 11/143. It also establishes that the judgment debtor was the owner of both building Nos.14/151 and 153. Ext.B4 the property tax demand register extract for the period from 1983 to 1998 establishes that during 1983 the door numbers of those buildings were respectively 143, 144 and 145 of Ward No.11 and the judgment debtor was the owner of the building. The door No.143 was in the occupation of the Post Office Quarters and building No.144 was in the occupation of R.B.Sudha and building No.145 was in the occupation of Nandakumar. Even Ext.B5 shows that building No.145 Ext.S.A.12/2011 9 was in the occupation of Nandakumar at that time also. Ext.B4 to B6 therefore establishes that building bearing No.14/171 at the time when the appellant filed the petition before executing court, was the same building which was having the door No.11/145 in 1983. When the property was put up for sale and sold in court auction, the buildings were having the number 11/145. Ext.B1 sale certificate conclusively establishes that what was sold in execution of the sale in E.P.202/1998 are three buildings bearing No.11/143, 11/144 and 11/145. It is thus clear that the building 14/171 claimed by the appellant under Ext.A1 sale deed is definitely the subject matter of the court auction sale which was purchased by the first respondent under Ext.B4 sale deed. Appellant is not entitled to raise any claim based on the fact that the survey number shown in Ext.B1 sale certificate is only survey number 2810, based on the fact that a portion of the building is in survey No.2761. As rightly found by the courts below Ext.A1 assignment Ext.S.A.12/2011 10 deed was executed subsequent to the date of the decree. Ext.A1 also does not show that the property which was assigned under Ext.A1 was the property excluding the property attached in O.S.393/1993. When appellant is claiming under Ext.A1 sale deed executed by the judgment debtor, subsequent to order of attachment and the decree, as provided under Rule 102 of Order XXI of Code of Civil Procedure the petition filed by the assignee of the judgment debtor can only be dismissed. As I find no substantial question of law involved in the appeal, it is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006