IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 WA.No. 781 of 2003(D) --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.32210/2002 Dated 21/02/2003 .................... APPELLANT(S): -------------- TOM JOSE, ALIAS THOMAS, AGED 41 YEARS, S/O. JOSEPH, KUMBALANGGAL HOUSE, VELLIYAMATTOM VILLAGE, THODUPUZHA. BY ADV. SRI.DINESH R.SHENOY SRI.V.VIJULAL RESPONDENT(S): PETITIONERS AND RESPONDENTS ------------------------------------------ 1. ANEESH S/O. LATE DEVASIA, PERUMBARAYIL HOUSE, PANNIMATTOM, THODUPUZHA. 2. SIMI D/O. LATE DEVASSIA, PERUMBARAYIL HOUSE, PANNIMATTOM, THODUPUZHA. 3. MARY W/O. LATE DEVASSIA, PERUMBARAYIL HOUSE, PANNIMATTOM, THODUPUZHA. 4. THE SPECIAL SALE OFFICER, KUMARAMANGALAM SCB GROUP, ASSISTANT REGISTRAR (G) OFFICER, THODUPUZHA. 5. THE SECRETARY, VELLIYAMATTOM, SERVICE CO-OPERATIVE BANK, THODUPUZHA. 6. P.D.KURIAN, PULINKUZHAKKAL HOUSE, MANAKKADU P.O., THODUPUZHA. ADV. SRI.P.V.BABY SRI.SHAJI P.CHALY SRI.SHAJI P.CHALY FOR R1-3 SRI.RENJITH B.MARAR FOR R6 SRI.L.RAJESH NARAYAN FOR R6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & K SURENDRA MOHAN, JJ ........................................... WA.NO. 781 OF 2003 ............................................ DATED THIS THE 5TH DAY OF JANUARY, 2009 JUDGMENT Appellant herein was not a party to WP(C) 32210 of 2002. But he submits that he was aggrieved by the judgment passed by this court in that case. So he sought leave of this court and filed this writ appeal. 2. Respondents 1 to 3 herein are the legal heirs of late Devassia. Sixth respondent herein availed a loan from Velliyamattam Service Co-operative Bank, Thodupuzha mortgaging certain properties belonging to Devassia and also some properties of his brother in law, the 6th respondent, P.D.Kurian. The principal loanee was P.D.Kurian and late Devassia was his surety. The Sale Officer of the bank took steps to sell the properties of Devassia mortgaged to the Bank. Therefore his legal heirs filed the writ petition contending inter alia, that proceedings should be initiated against the property of 6th respondent, P.D.Kurian and if his properties are found insufficient to meet the claim of the Bank, the properties of Devassia, who is the surety could be brought to sale. When the writ petition came up for hearing, the counsel for Co-operative WA 781/2003 2 Bank submitted that they are proceeding against the properties of the 6th respondent, P.D.Kurian. In view of the said submission, learned Single Judge disposed the writ petition directing that if only the amount due to the Bank cannot be recovered from the properties of P.D.Kurian, action could be taken against the properties of the writ petitioners. 3. But P.D.Kurian had already sold the mortgaged properties to one Mr. John. Appellant herein purchased it bonafide, without being aware of the encumbrances. Appellant submits that third respondent was the uncle of writ petitioners. Suppressing the said relationship, they have moved this court and obtained the aforementioned direction. It is also submitted that in fact the petitioners have sold the entire property concerned in this case, even before they approached this court. So they have played a fraud to defeat the rights of the appellant, in the property purchased by him from Mr. John. Therefore appellant prays to set aside the judgment. 4. We heard the learned counsel for the Bank and also learned counsel appearing for other respondents. It is for the Bank to decide whether to proceed against the property of the principal loanee or that of the surety. But it is clarified that the WA 781/2003 3 contention of appellant before the competent authority to save his property from attachment and sale by the Bank will not be affected by the direction of the learned Single Judge. In other words, statutory authorities will be free to take a decision in accordance with law, on the claim petition or objection, if any filed by appellant. With the above direction, appeal is disposed of. K.BALAKRISHNAN NAIR, JUDGE K SURENDRA MOHAN, JUDGE lgk/- WA 781/2003 4 K.BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ W.A.781/2003 JUDGMENT 5TH JANUARY, 2009