IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 Ex.SA.No. 15 of 2009() ------------------------------ CMA.141/2007 of I ADDL. DISTRICT COURT, PALAKKAD EA. 553/2006, EP. NO.17/2001 IN OS.192/1997 of MUNSIFF COURT, ALATHUR .................... APPELLANT (S): APPELLANT- DECREE HOLDER/IST RESPONDENT ------------------------------------------------------------------------------------------------- M/S. MARY MATHA FINANCIERS, BY MANAGING PARTNER, GEORGE PHILIP, S/O. PHILIP ELANJIKAL, KALLINGAL PADAM, KANNAMBRA AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.N.SUKUMARAN SRI.S.SHYAM RESPONDENT(S): RESPONDENTS/CLAIMANT & RESPONDENT 2 TO 5 ------------------------------------------------ JUDGMENT DEBTORS. 1. K. RADHAKRISHNAN, S/O. SANKARA NARAYANAN, C.V. HOUSE, ANJUMOORTHY MANGALAM.P.O, ALATHUR TALUK, PALAKKAD DISTRICT. 2. SYAMALA, W/O. LATE SASIDHARAN, RESIDING AT ANASWARA, KARAYAMKADU, VADAKKANCHERRY AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 3. DEEPAK, D/O. LATE SASIDHARAN, RESIDING AT -DO- 4. NISSI, D/O. LATE SASIDHARAN, RESIDING AT -DO- 5. PRINCE, S/O. LATE SASIDHARAN, RESIDING AT -DO- THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/07/2010, ALONG WITH WPC NO. 3723 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------------------------------------- Ex.SA No.15 of 2009 & WP(C) No.3723 of 2010 -------------------------------------------------------------------- Dated 21st July 2010 Judgment This proceeding arises from the execution proceedings in OS No.192/97. The appellant instituted a suit for money and they were granted a decree for a sum of Rs.79,500/- with 12% interest. Subsequent to the decree, the judgment debtor died and the execution proceedings were initiated against his legal heirs. EP No.17/01 in OS No.192 of 1997 was filed for execution of the decree. As per the order in the EP, the property measuring 2 cents belonging to the deceased respondent was attached on 28.06.2006. Thereafter, a person by name Radhakrishnan filed EA No.553/06 under Order XXI Rule 58 CPC, seeking to have the attachment lifted. He contended that there was an agreement for sale in respect of the property attached, between late Sasidharan and himself, whereby late Sasidharan had agreed to sell the property for a sale 2 consideration of Rs.1,25,000/-. The said Radhakrishnan claimed that he had paid an amount of Rs.75,000/- to late Sasidharan as advance money on 03.07.1998. After the death of Sasidharan, when his legal heirs refused to honour the agreement for sale, claimed to have been entered into between him and late Sasidharan, Sri.Radhakrishnan instituted the suit as OS No.237/01 against his legal heirs. That was a suit for specific performance, which was decreed and subsequently, a sale deed was got executed by Sri.Radhakrishnan, the claimant, through court on 05.07.2006. He, therefore, pointed out that the property belongs exclusively to him and late Sasidharan had no manner of right over the property at the time of attachment. On the above grounds, he prayed for lifting of the attachment. From the records, it is seen that no objections were filed by the respondents against the application for lifting the attachment. 2. The Trial Court raised necessary issues for consideration. Evidence consists of the testimony of PW1 3 and documents marked as Exts.A1 to A3 from the side of the claimant. The respondents examined no witnesses and no documents were marked from their side. 3. The Trial Court, on an evaluation of the evidence on record, allowed the application. The lower Appellate Court independently considered the materials on record and found that there was no merit in the appeal. The lower Appellate Court also found that the claimant had got title to the property as he had bought the same, by paying the entire sale consideration before the attachment. The lower Appellate Court dismissed the appeals finding that no grounds were made out to interfere with the orders of the Trial Court. 4. Ex.SA No.15/09 is directed against the order in EA No.553/06 in EP No.17 of 2001 in OS No.192/97. However, it is an order, allowing the claim petition. The Writ Petition is filed against the dismissal of EP No.17/01. 5. The learned counsel for the appellant pointed out that they were not given an opportunity to file their 4 objections before the Trial Court and that has caused considerable prejudice to them. It is also pointed out that in fact, the property had already been sold and therefore, the claim petition under Order XXI Rule 58 CPC was not maintainable. They also submitted that the agreement for sale was after the suit was instituted. These aspects have not been considered by the courts below and that has resulted in miscarriage of justice. 6. The above argument may look attractive. But, from a close scrutiny of the records made available before this Court, it can be seen that it is without any basis. The learned counsel for the appellant pointed out that the sale had already been taken place and therefore, the petition under Order XXI Rule 58 was not maintainable. The orders of the courts below do indicate that the sale had taken place before the institution of the suit. There is nothing on record to show that the claim petition under Order XXI Rule 58 was filed after the court sale was conducted. Moreover, no such contention seems 5 to have been taken before the lower Appellate Court. The ground which was focussed before the lower Appellate Court was that the claimant had not obtained a registered sale deed and therefore, the title could not be said to have been passed to him. No other grounds seem to be argued before the lower Appellate Court. 7. There is nothing to show that the court below had denied opportunity to the appellant herein to file their objections in the claim petition. There is also nothing to show that the claim petition was filed after the sale had taken place. It is seen that the claimant had instituted a suit on the basis of the agreement and thereafter obtained a sale deed through the court. 8. It is well settled that when an attachment is effected, if there is already an agreement for sale in existence, the person effecting attachment is entitled to the balance sale consideration in pursuance of a sale agreement. Therefore the contention that unless the sale deed is got registered, no title passes, cannot be accepted. 6 The claimant had clearly pointed out that at the time of attachment, the property no longer belonged to late Sasidharan or his legal heirs and it belonged exclusively to the claimant, namely, Radhakrishnan. The suit instituted by Radhakrishnan against the legal heirs of late Sasidharan was decreed on 11.06.2002. The attachment was only on 28.06.2006. Therefore, it is clear that at the time of attachment, neither Sasidharan nor his legal heirs had subsisting title to suit property. Both the courts below have considered the contentions raised by the appellant in considerable detail and found them to be untenable. This appeal and Writ Petition are without merits and they are accordingly dismissed. P.BHAVADASAN, JUDGE sta 7 8