IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 Ex.FA.No. 128 of 2009(E) ----------------------- AGAINST THE ORDER DATED 30/11/2009 IN EA.32/07 IN EP.30/06 IN OS.772/1996 of SUB COURT,KATTAPPANA .................... APPELLANTS/PETITIONERS: -------------------- 1. M.V.KRISHNAKUMAR, S/O.VELUKUTTY, THEKKEDATHU HOUSE, VADAKKEVILA POST, KOLLAM-10. 2. ANAND JOY, S/O.M.K.JOY, MUNDUKOTTACKAL HOUSE, CHETHACKAL KARA, CHETHACKAL VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT. 3. HEMA JOY, D/O.M.K.JOY, -DO-. 4. MERRY JOY, W/O.M.K.JOY, -DO-. 5. M.K.JOY, S/O.M.C.KORAH, -D0- APPELLANTS 2-4 REPRESENTED BY POWER OF ATTORNEY HOLDER MR.M.K.JOY. BY ADV. MR. MATHEW JOHN (K) MR. AJEESH K.SASI RESPONDENT(S): --------------- 1. GEORGE THOMAS, S/O.THOMAS KALLATTU, KALLATTU HOUSE, 20/47, MOOZHAYIL BUILDINGS, NEAR TELEPHONE EXCHANGE PALA, MEENACHIL TALUK, KOTTAYAM DISTRICT. 2. THEYYAMMA GEORGE, W/O.GEORGE THOMAS, -DO-. 3. C.BABY GIRIJA, W/O.M.V.KRISHNAKUMAR, THEKKEDATH HOUSE, VADAKKEVILA POST, KOLLAM-10. (..2) lEXFA.128/09 (2) 4. M.MOHAN, S/O.P.N.MADHAVAN NAIR, T.C.3/2589, SULOCHANA VILASAM, MARAPPALAM, THIRUVANANTHAPURAM. *5. ESWARLAND ESTATE (P)LTD., REPRESENTED BY V.SOMANATHA PILLAI, KARTHIKA, XL VIII/595, KEERTHI NAGAR, ELAMAKKARA, KOCHI. 6. V.SOMANATHA PILLAI, KARTHIKA, XL VIII/595, KEERTHI NAGAR, ELAMAKKARA, KOCHI. *7. N.BHASKARAN NAIR, S/O.NARAYANA PILLAI, KARIKKETHIL HOUSE, NEAR K.S.E.B., POWER HOUSE, KOLLAM DISTRICT. (* RESPONDENTS 5 & 7 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DT.10.2.2010 ON I.A.383/09) ADV. MS. M.HEMALATHA FOR R4 MR. C.K.MOHANAN FOR R1,2 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/02/2010, ALONG WITH Ex.FA.NO.129 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.3762/2009 IN Ex.FA.128 /2009 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 19.2.2010 okb /True copy/ P.A. to Judge PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- Ex.F.A.Nos.128 and 129 of 2009 ---------------------------------- Dated this the 19th day of February, 2010 J U D G M E N T ---------------------- Pius C.Kuriakose,J. Raising identical grounds the same appellants have preferred this appeal being aggrieved by the order of the Subordinate Judge's Court, Kattappana rejecting the claim petition under Order XXI Rule 58 in which they got themselves impleaded upon coming to know that the properties which they had purchased had already been sold in execution at the time they purchased. The ground prominently raised in both these appeals is that the appellants are bonafide purchasers for value. According to them, the trial court initially passed an order of attachment before the judgment. However, on entertaining the claim petitions filed by the predecessors in interest of the appellants as well as separate applications filed by them for lifting the attachment, court lifted the attachments and communicated the order of lifting the attachment to the Sub Registry. According to the appellants ,before they purchased the properties they perused all relevant records including the Ex.F.A.128&129/09 2 indices of the Sub Registry and found that the attachment which had been originally passed had been lifted and it were not so they would not have gone into purchase of the property. The respondents preferred A.S.(Misc.)No. 916/1998 and other appeals challenging the order lifting the attachment and allowing petition (A5). The appeal was allowed by a Division Bench of this court by passing Ext.B3 judgment. It is urged that it is only by Ext.B3 judgment that the properties were attached again but the fresh judgment passed under Ext.B3 was never communicated to the Sub Registry. Therefore at the time of purchase of the properties by the appellants there was no valid attachment over the properties and hence the appellants were justified in purchasing the properties. The appellants are bonafide purchasers. 2. Very extensive submissions were addressed before us by Adv.Mr.Mathew John.K., learned counsel in both appeals and all those submissions were stiffly resisted by Smt.M.Hemalatha, learned counsel for respondents/decree holder. Mr. Mathew John drew our attention to Rule 54 of Order XXI and submitted that in order that an attachment passed by the court whether on the original side or on the execution side becomes effective, it is necessary that the Ex.F.A.128&129/09 3 procedure as envisaged by Rule 54 of Order XXI is complied with. In the instant case the attachment order passed by this court in A.S.(Misc.)No.916/1998 and connected appeals were not proclaimed on the property under attachment or on any property adjacent to that property. The above order was never affixed on any part of the property under attachment and much less on a conspicuous part of the court house. Counsel submitted that the order of attachment was not affixed in the office of the Collector of the Revenue District (Idukki District) or in the office of the Kumali Panchayat which is having jurisdiction over the village where the property is situated. According to the learned counsel, the attachment passed by this court in A.S.(Misc.)No.916/1998 was thus never became effective and therefore the appellants could have ignored that attachment and purchased the property. When the attention of the learned counsel was drawn to the settled position that in order that claim petitions under Rule 58 is maintainable, it is necessary that subsistence of a valid attachment is conceded, Mr. Mathew would submit that when the respondent is asserting that there is a valid attachment subsisting and the Court also is in acceptance of that position taking steps for sale, on the basis of that attachment, the appellant has no remedy other Ex.F.A.128&129/09 4 than to invoke the remedy under Order XXI of Rule 58. When we drew attention of the learned counsel to the fact as reported to this court by the Registrar on 14.12.2009, that the property is already sold on 24.1.2007 and to the terms of clause(a) to the proviso to Sub Rule (1) of Rule 58 of Order XXI, the learned counsel would submit that even before the sale took place, the claim petitions in which the appellants got themselves impleaded were all on the files of court and the very pendency of the claim petition amounted to statutory restraint on the court from proceeding with the sale including confirmation of the sale if already conducted. 3. Smt.Hemalatha, learned counsel for the 4th respondent would refer to the last paragraph of Ext.B3 judgment and submit that a Division Bench of this court has actually revived the order of attachment originally passed by the trial court. Therefore by virtue of Ext.B3 it is the original attachment that has been revived. Therefore since there is no dispute with the original attachment was effected in terms of Order XXI of Rule 54, the question whether the so-called subsequent attachment has become effective does not arise. She would read over us certain portions of PW2, the 5th appellant, which would certainly show that at the time of purchase of the properties he was aware of the pendency of Ex.F.A.128&129/09 5 the proceedings including the subsistence of the liability and passage of the decree. The appellants cannot be claim to be bonafide purchasers for value as they claimed. In reply, Mr. Mathew John would submit that Ext.B3 only provides that “the ad interim attachment ordered” will continue to be in force. Any ad interim attachment will stand dissolved once the appeals are finally decided by the court. The attachment which is ordered to be continued under Ext.B3 can only be the interim attachment which was passed by this court on entertaining the miscellaneous appeals. In view of the controversy as to what was the 'ad interim attachment' that was ordered to be continued, we called for judges papers pertaining to A.S(Misc.)No.916/98 and we found that though along with appeal C.M.Appl.No.7341/98 had been filed seeking attachment of the properties which was subject matter of the claim petitions, it was not an order of interim attachment that was issued by this court. This court, after hearing both sides, (since the respondent had also lodged a caveat in anticipation of the appeal) stayed the operation of the impugned orders. Thus the order impugned in the appeal by which the attachment originally passed by the trial court had been lifted stood stayed by this court. The fact being so, it is clear to our mind that the “ad interim Ex.F.A.128&129/09 6 attachment” ordered to be continued by this court under Ext.B3 judgment was the ad interim attachment originally passed by the trial court. This means that the above attachment naturally relates back to the date of the original order passed by the trial court. The purchase by the appellants was thus during the subsistence of the attachment and with notice of the attachment. 4. Both these appeals are liable to fail. However considering the last request of Mr. Mathew John, that at least 9 months time be granted to the appellants for paying off the debt we are inclined to grant 6 months despite stiff opposition from the side of Smt.Hemalatha. 5. Hence the upshot of the above discussion is that the appeals are dismissed, however, without any order as to costs. Interim order of stay granted on 14.12.2009 will continue till 20.8.2010 subject to the condition that the post decree interest from this date will stand enhanced to 12%. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb