IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 OP(C).No. 783 of 2010(O) ------------------------------------- OS.446/1989 of MUNSIFF COURT,CHAVAKKAD .................... PETITIONER: ------------------ INDIRA, AGED 56, W/O.BALASUBRAMANIAM, PALLUTHUVALAPPIL HOUSE, PADINJAKARA VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR), SRI.K.RAVI (PARIYARATH). RESPONDENT(S): -------------------------- KOCHANNAM, W/O.CHERUVATHUR BENNY, D/O.LATE CHEERAN KAKKAPPAN, COUNTER PALAYAM, 2/42, SANTHI NAGAR, COIMBATORE, TAMIL NADU-30. BY ADV. SRI.MILLU DANDAPANI. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 783 of 2010(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMON ORDER PASSED IN CRP NO.1638/2000 AND CONNECTED CASES DATED 07/12/2005 ON THE FILE OF THIS HONOURABLE COURT. EXT.P2: COPY OF THE E.A.NO.772/2006 IN E.A.NO.430/1992 IN E.P.NO.117 OF 1991 IN O.S.NO.446/1989 ON THE FILE OF THE MUNSIFF COURT, CHAVAKAD DATED 28/08/2006. EXT.P3: COPY OF THE E.A.NO.359/2009 IN E.P.NO.117/1991 IN O.S.NO.446/1989 ON THE FILE OF THE MUNSIFF COURT, CHAVAKKAD DATED 28/03/2009. EXT.P4: COPY OF THE E.A.NO.290/2009 IN E.A.NO.772/2006, DATED 18/03/2009. EXT.P5: COPY OF THE COMMON ORDER PASSED IN E.A.NO.290/2009 AND CONNECTED CASES IN E.P.NO.117/1991 IN O.S. NO.446/1980 DATED 04/08/2010 ON THE FILE OF THE MUNSIFF COURT, CHAVAKKAD. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE ORDER DATED 25/08/1993 IN EA NO.430/1992 IN EP.NO.117/1991 IN O.S. NO.446/1990 OF THE MUNSIFF COURT, CHAVAKKAD. EXT.R1(b): COPY OF THE JUDGMENT IN AS.NO.306/1993 OF THE DISTRICT JUDGE, THRISSUR. EXT.R1(c): COPY OF THE JUDGMENT DATED 07/01/2008 IN ESA NO.5/2000 ON THIS HONOURABLE COURT. EXT.R1(d): COPY OF THE OBJECTION IN EA NO.772/2006 IN EP.117/1991 SUBMITTED BY THE 4TH RESPONDENT. EXT.R1(e): COPY OF THE ORDER DATED 19/06/2008 IN EA.772/2006 IN EA.430/1992 IN EP.117/1991 IN O.S.446/1989 OF THE MUNSIFF COURT, CHAVAKKAD. EXT.R1(f): COPY OF THE JUDGMENT DATED 2ND SEPTEMBER, 2008 IN WP(C) NO. 26509/2008 OF THIS HONOURABLE COURT. //TRUE COPY// P.S. TO JUDGE rs HARUN-UL-RASHID,J. ------------------------------- O.P.(C)NO.783 OF 2010 ------------------------------- DATED THIS THE 3RD DAY OF FEBRUARY, 2011 JUDGMENT This original petition is filed challenging Ext.P5 common order dated 4/8/2010 passed by the Munsiff's Court, Chavakkad in E.A.Nos.290, 291 and 292/09 in E.P.No.117/91 in O.S.No.446/80. 2. Petitioner is the wife of Balasubramaniam, who claimed title to the property sold in court auction. Balasubramaniam, his wife (petitioner herein) and their daughter jointly obstructed delivery of the property sold in court auction. 3. The brief facts of the case are as follows: O.S.No.446/80 is a suit filed by one Sacharia against Kochukunjan for realisation of money. The property having an extent of 12 cents, which belonged to the defendant had been attached before judgment by the plaintiff on 1/9/1989. Subsequently, the Munsiff's Court, Chavakkad passed a money -2- O.P(C).No.783/2010 decree in favour of the plaintiff. Since the decree amount was not paid, E.P.No.117/91 was filed by the decree holder. He applied for sale of the aforesaid 12 cents of land. One Sri Kakkappan purchased the property in court auction on 22/1/1992. The sale was confirmed by the court on 30/3/1992. Kakkappan is the father of the respondent-Kochanna Benny. The auction purchaser- Kakkappan filed E.A.No.430/1992 requesting the court to deliver the property covered by the sale certificate. The execution court on 26/11/1992 ordered delivery of the property to the auction purchaser. 4. The judgment debtor in his counter statement stated that he had already sold the property to Balasubramaniam, that the person who purchased the property, is in possession of the property sought to be delivered, that the auction purchaser has no right to request for delivery and therefore he sought for dismissal of E.A.No.430/92. 5. When the Amin went to the spot, Balasubramaniam, -3- O.P(C).No.783/2010 his wife and daughter obstructed the delivery proceedings. The court issued notice to the obstructors. The obstructors appeared before the court and filed counter statement. According to them, the judgment debtor had no saleable interest over the plaint schedule property and that as per the sale deed dated 3/1/1991, Balasubramaniam, one of the obstructors, purchased the property from the judgment debtor and that ever since the date of purchase he is in possession of the property. The obstructors requested the court to dismiss the application (E.A.No.430/92) for removal of obstruction. 6. The court below considered the rights of the parties. Ext.B1 document was executed long after the attachment of the property in the suit. The execution court held that the obstructors' claim of title is not sustainable in law and that the auction purchaser is entitled to get delivery of possession of the property purchased by him in court auction sale. The execution court allowed the said EA and ordered delivery of the property. On 5/10/1993 the -4- O.P(C).No.783/2010 obstructors 3 in number preferred A.S.No.306/93 before the District Court, Thrissur. The Appellate Court considered the question and held that the contention of the obstructors that they are bona fide purchasers, cannot stand and that the appellants are claiming title created subsequent to the attachment of the property and therefore the obstructors are bound by the attachment and court sale and hence liable to be removed from possession. The Appellate Court dismissed the appeal. One of the obstructors namely, Balasubramaniam, preferred second appeal challenging the judgment and decree passed by the Lower Appellate Court. This Court reiterated the stand of the courts below that the appellants are not entitled to cause any obstruction to the delivery and dismissed the second appeal. 7. The auction purchaser Kakkappan died during the pendency of A.S.No.306/93. The appellants/obstructors impleaded all the legal hers of the deceased Kakkappan in the appeal except the respondent herein. Admittedly, the respondent is one of the -5- O.P(C).No.783/2010 legal heirs of the auction purchaser. Before the death of the auction purchaser, he executed a Will in favour of the respondent herein bequeathing the property. In fact, the actual person interested in contesting the appeal preferred by the obstructors is the respondent herein. It is not known why she was not impleded as one of the legal heirs in A.S.No.306/93. The petitioner in the original petition is not the purchaser; but his wife, who has not claimed any independent right over the property. Her husband Balasubramaniam is the purchaser of the property. The obstructors, namely Balasubramaniam, the present petitioner and his daughter claimed title to the property. The same was considered by the execution court, Lower Appellate Court and this Court in Second Appeal. All the courts held that the obstructors have no right or interest in the property. Copy of the order and judgments passed by the execution court, Lower Appellate Court and this Court are produced as Exts.R1(a), R1(b) and R1(c) respectively. I have already stated that the lst obstructor died and the present -6- O.P(C).No.783/2010 respondent, who is the legatee was not impleaded. But all the other legal heirs are impleaded in A.S.No.306/93. It is submitted by the respondent that since she was not a party to the appeal and second appeal, she had no idea about the proceedings pending before the execution court. In fact the proceedings before the execution court remain dormant during the pendency of the appeal and second appeal preferred by the obstructors. E.A.No.430/92 filed by the deceased Kakappan for delivery of the property was dismissed for default. During the pendency of A.S.No.306/93, the respondent on enquiry came to know about the dismissal of E.A.No.430/92 and then she filed E.A.No.772/06 to restore E.A.No.430/92. She also filed E.A.No.773/06 to amend the cause title of E.A.No.430/92 and E.A.No.774/06 to implead her as the petitioner in the place of deceased Kakkappan. Originally, the learned Munsiff allowed the applications. Obstructors filed writ petition as W.P.(C). No.26509/08 challenging the said orders. Ext.R1(f) is the copy of the judgment passed by this Court in the said writ petition. In the -7- O.P(C).No.783/2010 first line of the judgment it is stated that the petitioners are the decree holders. In fact the writ petition was filed by the obstructors Balasubramaniam and his wife Indira, who is the petitioner in the present original petition. Ext.R1(f) judgment shows that this Court disposed of the writ petition as if the same was filed by the decree holders. This Court disposed of the writ petition with a direction to the learned Munsiff to re-consider the EAs. afresh and pass orders. Pursuant to the direction, the execution court again considered the EAs filed by the lst respondent, who is none other than the legal representatives of the auction purchaser and allowed the same. Ext.P5 is the order passed in the said EAs. Ext.P5 is challenged by the petitioner, who is none other than the wife of the obstructor- Balasubramaniam. I have already stated that her rights are adjudicated by the execution court, Lower Appellate Court and this Court. Exts.R1(a), R1(b) and R1(c) are the order and judgments. Now the wife of the obstructor challenged Ext.P5 order. She has no locus standi to challenge Ext.P5 order. She is not the decree -8- O.P(C).No.783/2010 holder or the judgment debtor; but none other than the wife of the obstructor-Balasubramaniam, who purchased the property when there is attachment before judgment. All the courts consistently held in Exts.R1(a), R1(b) and R1(c) that the obstructors including the present petitioner, who claimed title subsequent to the attachment of the property, are persons bound by the attachment for sale and liable to be removed from possession. Such persons again appeared before the execution court and contested the applications submitted by the auction purchaser. The learned Munsiff in Ext.P5 order repelled the contentions raised by the obstructors including the petitioner in the original petition. Taking into account the above-said facts and circumstances, the execution court held that in the interest of justice, it is necessary to permit the petitioner in EAs.290/09, 291/09 and 292/09 in E.P.No.117/91, who is the respondent herein to prosecute the petition for delivery and connected EAs. on merits. The said E.As. are filed for restoration of E.A.Nos.772/06, 773/06 and 774/06. After considering the -9- O.P(C).No.783/2010 materials on record, I find that the contention raised by one of the obstructors, who is none other than the wife of the purchaser, does not merit consideration. The execution court rightly permitted the respondent to prosecute E.A.No.430/92, which is the application for delivery of possession of the property. I find that no valid grounds are made out by the petitioner for interference in the original petition filed under Article 227 of the Constitution of India. Original Petition fails and accordingly dismissed. HARUN-UL-RASHID, Judge. kcv. -10- O.P(C).No.783/2010