IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 OP(C).No. 3434 of 2011(O) ------------------------------------- [IN THE MATTER OF E.A. NO.1686/2011 IN E.P. NO. 217/2009 IN OS.780/2008 OF II ADDL.SUB COURT, THRISSUR] .................... PETITIONER: ------------------- WILSON, S/O.CHIRIYAKKU, CHERUVATHOOR, KAVANAM CHITTOOR DESOM, CHOVANNOOR VILLAGE, THRISSUR TALUK. BY ADVS. SRI.JIJO PAUL, SMT.T.RESMI DAMODARAN. RESPONDENTS: ----------------------- 1. M.SHAHEED, S/O.A.R.MOIDEEN SHAH, BISMI FANCY STORES, OPPOSITE POTHUVAL BROTHERS, P.O.ROAD, THRISSUR. 2. M.M.HANEEFA, S/O.A.R.MOIDEEN SHAH, BISMI FANCY STORES, OPPOSITE POTHUVAL BROTHERS, P.O.ROAD, THRISSUR. 3. M.SHAJAHAN, S/O.A.R.MOIDEEN SHAH, BISMI FANCY STORES, OPPOSITE POTHUVAL BROTHERS, P.O.ROAD, THRISSUR. 4. M.RAJIH, S/O.A.R.MOIDEEN SHAH, BISMI FANCY STORES, OPPOSITE POTHUVAL BROTHERS, P.O.ROAD, THIRSSUR. 5. THAZNI, D/O.M.SHAHEED, BISMI FANCY STORES, OPPOSITE POTHUVAL BROTHERS, P.O.ROAD, THRISSUR. 6. NAHAN, D/O.M.SHAHEED, BISMI FANCY STORES, OPPOSITE POTHUVAL BROTHERS, P.O.ROAD, THRISSUR. O.P.(C).NO.3434/2011-O: 7. FATHIMA, W/O.KINARUMKAL MOIDEEN, PANANGATTUKARA P.O., THEKKUMKARA VILLAGE, TALAPPILLY TALUK. 8. MOHAMMED ABDUL KABEER, S/O. MAMMU HAJI, REPRESENTED BY POWER OF ATTORNEY HOLDER MOHAMMED SHERIFF,S/O. MOIDEEN, ARAKKAL HOUSE, PALAYUR DESOM, GURUVAYOOR AMSOM, THRISSUR DISTRICT. R8 BY ADV. SRI.ZAKEER HUSSAIN. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21/11/2011, ALONG WITH O.P.(C). NO. 3456 OF 2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.3434/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1: TRUE COPY OF THE DOCUMENT NO.4731/08 DATED 9/7/2008 OF THE THRISSUR SUB REGISTRY. EXHIBIT P2: TRUE COPY OF THE JUDGMENT DATED 16/6/2011 IN OPC.NOS.770/2011 775/2011,776/2011,1764/2011,1770/2011 AND 1772/2011 IN OS.2180/2010 IN THE COURT OF MUNSIFF THRISSUR. EXHIBIT P3: TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DTD.17/4/2008 PERTAINING TO THE PROPERTY COVERED BY EXT.P1 PERTAINING TO THE PERIOD FROM 1/1/94 TO 10/4/2008 ISSUED BY THE SUB REGISTRAR OFFICE, THRISSUR. EXHIBIT P4: TRUE COPY OF THE ENCUMBRANCE CERTIFICATE REGARDING THE AFORESAID PROPERTY FOR THE PERIOD FROM 1/1/2008 TO 2/7/2008 ISSUED BY THE SUB REGISTRAR OFFICE , THIRSSUR DATED 4/7/2008. EXHIBIT P5: TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 27/4/2011 ISSUED BY THE SUB REGISTRAR OFFICE, THIRSSUR IN RELATION TO PROPERTY COVERED BY EXT.P1. EXHIBIT P6: TRUE COPY OF EA.NO.1686/2011 IN E.P.217/2009 IN OS.780/2008 DATED 18/10/2011 FILED BY THE PETITIONER. RESPONDENTS' EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).Nos.3434, 3456, 3457, 3461, 3462 and 3463 of 2011 --------------------------------------- Dated this 21st day of November, 2011 JUDGMENT The decree holder/respondent in all the cases appear through counsel. Other respondents being judgment debtors are not necessary parties for disposal of these original petitions. 2. The prayer in these original petitions is for a direction to the learned second Additional Sub Judge, Thrissur to adjudicate and dispose of the claim petitions preferred by petitioner under Rule 58 of Order XXI of the Code of Civil Procedure (for short, "the Code”) in accordance with law and in the meantime, not to sell the property covered by the said claim petitions until its disposal. The contesting respondent/decree holder respondent has obtained decrees for recovery of money against the other respondents in the original petitions. Two items of properties allegedly belonging to the judgment debtors were attached and the contesting respondent/decree holder took steps to bring those items for sale. Petitioner filed claim petitions in the respective execution petitions under Rule 58 of Order XXI of the Code claiming that he purchased the said property item No.1 (which is subject matter of the claim petitions) from the O.P(C).Nos.3434, 3456, 3457, 3461, 3462 and 3463 of 2011 -: 2 :- judgment debtor concerned on 09.07.2008 as per Ext.P1, assignment deed. In the meantime this Court by Ext.P2, judgment dated 16.06.2011 issued certain directions including consolidation of the various execution petitions, in the matter of further proceedings in execution. It included a direction that item No.1 (which I am told is subject matter of the claim petitions preferred by petitioner) shall be sold as the first lot and if the amount fetched in auction sale did not satisfy the decree debts in all the cases, then item No.5 referred to in the judgment could be sold. Certain other directions also were issued. Executing court proceeded in the way directed by this Court in Ext.P2, judgment. At that stage, petitioner has approached this Court with these original petitions seeking reliefs as first above stated. 3. Learned counsel for petitioner contends that item No.1 in the execution petitions (which is subject matter of the claim petitions) was purchased by petitioner on 09.07.2008 and except in O.S.Nos.680 and 681 of 2008 (which are the subject matter of O.P.Nos.3461 and 3462 of 2011), attachment of the said property was after petitioner purchased the same on 09.07.2008 and hence the attachment cannot affect the right of petitioner in the said property. So far as O.S.Nos.680 and 681 of 2008 are concerned, it is contended that though the order of attachment was made in those cases on 21.05.2008 the O.P(C).Nos.3434, 3456, 3457, 3461, 3462 and 3463 of 2011 -: 3 :- attachment was effected and intimated to the Sub Registrar only after 09.07.2008 as is revealed from the certificate of encumbrance petitioner has obtained and hence the attachment in O.S.Nos.680 and 681 of 2008 cannot bind or affect the purchase made by petitioner on 09.07.2008. It is contended by learned counsel that under Rule 59 of Order XXI of the Code the executing court is empowered to grant stay until the claim petitions are adjudicated as provided under Rule 58 of Order XXI of the Code. Learned counsel submits that as ordered by this Court on 25.10.2011 petitioner has deposited `.3,00,000/- in the executing court in each case to show his bonafides in the claim made in the respective claim petitions. 4. Learned counsel for contesting respondent/decree holder contended that purchase effected by petitioner is nothing but the result of collusion with the respective judgment debtors intended to defeat the claim of the contesting respondent/decree holder. It is submitted that in O.S.Nos.680 and 681 of 2008, attachment was ordered and effected even prior to the petitioner purchased the property on 09.07.2008 and hence the properties are subject to the claim of the contesting respondent arising out of the attachment, under Sec.64 of the Code. It is also contended by the learned counsel that at any rate even as Rule 59 of Order XXI of the Code provides, it is within the power of the executing O.P(C).Nos.3434, 3456, 3457, 3461, 3462 and 3463 of 2011 -: 4 :- court to conduct sale - what is required is only to keep confirmation of sale in abeyance until disposal of the claim petitions. 5. It is not disputed that claim petitions have not been rejected by the executing court as provided under the proviso to sub rule (1) of Rule 58 of Order XXI of the Code. Learned counsel for the contesting respondent would submit that except in one case, notice of the claim petitions has not been served on the contesting respondent and that he is yet to file his objections to the claim petitions. True, Rule 59 of Order XXI of the Code states that if the property with respect to the claim under Rule 58 is made is immovable, the Court may order that the property shall not be sold pending adjudication of the claim or objection, or that pending such adjudication the property may be sold but the sale shall not be confirmed. 6. But, the difficulty if the property is allowed to be sold but, not confirmed until the claim petitions are adjudicated is that claim and interest of third party/auction purchasers might come in and make the situation more complicated. 7. The executing court may be placed in a difficult situation if it is directed to consider the request of petitioner for stay. For, in Ext.P2, judgment this Court in clause 4 directed that item No.1 (which is the subject matter of the claim petitions) O.P(C).Nos.3434, 3456, 3457, 3461, 3462 and 3463 of 2011 -: 5 :- shall be sold as the first lot. So far as Ext.P2, judgment is concerned, it is not disputed before me that petitioner was not a party in the said original petition. Nor does Ext.P2, judgment show that pendency of the claim petition in any case was brought to the notice of this Court while Ext.P2, judgment was delivered. In that view of the matter, I am inclined to think that the claim made by petitioner shall not be affected or prejudiced by the direction contained in Ext.P2, judgment of this Court. Petitioner is entitled to make a claim under Rule 58 of Order XXI of the Code. Whether the claim is to be entertained or allowed or not are matters to be decided by the executing court. 8. Learned counsel for the contesting respondent pointed out that if sale of the property is stayed, it may take more than one months' time for disposal of the claim petitions in which case contesting respondent may have to take fresh proceedings for proclamation. But, that cannot mean that I must direct the executing court to dispose of the proceedings within a period of one month as that appears to be quite impracticable. 9. Having regard to the various circumstances I am inclined to think that it is appropriate that this Court directs that sale of item No.1 (which is subject matter of the claim petitions) will stand in abeyance until disposal of the claim petitions. Resultantly these original petitions are disposed of as O.P(C).Nos.3434, 3456, 3457, 3461, 3462 and 3463 of 2011 -: 6 :- follows: (i) It is directed that sale of item No.1 property in E.P.Nos.217, 219, 220, 288 and 289 of 2009, respectively in O.S.Nos.780, 779, 778, 680 and 681 of 2008 of the Court of learned Additional Sub Judge, Thrissur will stand stayed until disposal of the claim petitions. (ii) If notice of the claim petitions in any execution petitions has not so far been given to the contesting respondent/decree holder, petitioner shall at the earliest ensure that a copy of such claim petition is served on him. (iii) The executing court shall consider the matter as provided in Rule 58 of Order XXI of the Code and pass necessary orders as early as possible. (iv) It is directed that the amount deposited by the petitioner in the respective execution petitions shall be transmitted to the treasury or a Nationalised Bank of petitioner's choice, if request in that regard is made by petitioner to remain in deposit for a reasonable time as the executing court directs, so that the amount will generate interest. (THOMAS P. JOSEPH, JUDGE) Sbna/-