IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 WP(C).No. 16908 of 2010(O) -------------------------- AGAINST THE ORDER IN EP 554/05 IN OS.314/1996 of PRL.SUB COURT,IRINJALAKUDA .................... PETITIONERS: --------------- 1. RAJESWARY,W/O.RAJENDRAN, EDATHAPARAMBUVEETTIL,ASHTAMICHIRA DESOM, VADAKKUMBHAGAM VILLAGE,MUKUNDAPURAM TALUK. 2. GOPAKUMAR,S/O.RAJENDRAN,DO. DO. BY ADV. SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) SRI.MAHESH MENON RESPONDENTS: --------------- 1. N.S.S.KARAYOGAM NO.3302,ASTAMICHIRA DESOM,VADAKKUMBHGAM VILLAGE,MUKUNDAPURAM TALUK, REP.BY ITS PRESENT PRESIDENT MUKUNDAN MASTER. 2. GEETHA,W/O.ELEDATHVEETTIL VIJAYAKUMAR, ASTAMICHIRA DESOM,VADAKKUMBHGAM VILLAGE, MUKUNDAPURAM TALUK. 3. RAJENDRAN,S/O.EDATHAPARAMBUVEETTIL KARTHIAYANI AMMA,ASTAMICHIRA DESOM,VADAKKUMBHGAM VILLAGE,MUKUNDAPURAM TALUK. ADV. SRI.K.G.BALASUBRAMANIAN FOR R1 SMT.AMBILY (PREMKUMAR) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16908 of 2010(O) APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : ORDER DTD. 20.03.2010 IN E.P.554 OF 2005 IN O.S.NO.314 OF 1996 , SUB COURT, IRINJALAKUDA EXHIBIT P2 : REGISTERED DOCUMENT NO 945 OF 1996, MALA S R O EXHIBIT P3 : JUDGMENT DTD. 03.07.2006 IN RSA.NO.493 OF 2006 HIGH COURT OF KERALA EXHIBIT P4 : DRAFT SALE PROCLAMATION DTD. 24.04.2010 SUBMITTED BY THE DECREE HOLDERS IN E.P.554 OF 2005 IN O.S.NO.314 OF 1996 , SUB COURT, IRINJALAKUDA EXHIBIT P5 : OBJECTION DTD. 05.10.2006 IN E.P.554 OF 2005 IN O.S.NO.314 OF 1996 , SUB COURT, IRINJALAKUDA RESPONDENTS' EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.16908 of 2010 --------------------------------------- Dated this 08th day of July, 2010 JUDGMENT Defendant Nos.3 and 4 in O.S.No.314 of 1996 of the court of learned Principal Sub Judge, Irinjalakuda are the petitioners before me. They challenged Ext.P5, order which held that the entire decree schedule property is subject to the charge created by the decree, approving the draft sale proclamation accordingly and fixing upset price at Rs.Three Lakhs. Contention of defendant Nos.3 and 4 in short is that in the light of the decision of this court in R.S.A.No.493 of 2006 right of defendant Nos.3 and 4 in the decree schedule property cannot be affected and hence that property is not liable to be proceeded against for realisation of the amount due from defendant No.2. It is contended by learned counsel for petitioners/defendant Nos.3 and 4 that executing court has misread judgment of this court in R.S.A.No.493 of 2006 and the observations contained therein. It is also pointed out by learned counsel that apart from impleading defendant Nos.3 and 4 as parties to the suit, there was no prayer to set aside the settlement deed in their favour executed by defendant No.2, nor for any declaration regarding the validity of the said document. W.P.C.No.16908 of 2010 : 2 : So much so, and particularly in the light of judgment of this court in R.S.A.No.493 of 2006 executing court was not justified in allowing decree holder to proceed against the entire decree schedule property. In response, it is contended by learned counsel for respondent No.1/plaintiff that first appellate court has granted a decree in favour of plaintiff charged on the decree schedule property but that was not challenged by defendant No.2. It is also pointed out by learned counsel that when a charge is created by the decree, parties are bound by it so far as tha decree stands. Learned counsel referred me to the averments in the plaint. 2. Case of plaintiff is that defendant No.2 misappropriated certain funds of the plaintiff and to defeat the decree that may be passed against him. Defendant No.2 executed a settlement deed in favour of defendant Nos.3 and 4. I have gone through the copy of plaint given to me by learned counsel for plaintiff. In paragraph 9 of plaint it is stated that after plaintiff served lawyer notice on defendant No.2 demanding payment of the amount he created some documents in the name of defendant Nos.3 and 4 with the sole object of defeating plaintiff, the said documents have not been acted upon and that possession of property had not been handed over to defendant W.P.C.No.16908 of 2010 : 3 : Nos.3 and 4. It is stated in paragraph 10 of the plaint that the said documents are fraudulently created in the name of defendant Nos.3 and 4, are void ab initio and in the circumstances defendant Nos.3 and 4 are made parties to the suit. Plaintiff, paying court fee under section 33 of the Court Fees Act prayed for decree against defendant Nos.1 and 2 for the amount allegedly due to it. Learned Sub Judge dismissed the suit which plaintiff challenged in A.S.No.286 of 2002. First appellate court vide judgment dated 03-09-2004 allowed the appeal reversing judgment and decree of the trial court and granted a decree in favour of plaintiff. First appellate court granted a decree for recovery of Rs.90,000/- with interest at the rate of 6% per annum from 09-04-1996 on the principal amount till recovery creating a charge over the decree schedule property. Defendant Nos.3 and 4 in whose favour the impugned settlement deed was executed did not challenge the judgment and decree of the first appellate court. Instead, challenge to that judgment and decree was made by defendant No.2 in R.S.A.No.493 of 2006. This court did not interfere with the finding of first appellate court that plaintiff is entitled to recover the amount from defendant Nos.1 and 2. In paragraph 10, this court observed, “I do not find any material irregularity or W.P.C.No.16908 of 2010 : 4 : any perversity in the said finding and it does not call for any interference. So the charge decree is granted. It is hereby clarified that the charge will only relate to the right of the 2nd defendant over the property over which the charge is created and it will not in any way affect the right of the other parties who are having otherwise right over the same”. In the operative portion of the judgment this court directed, “it is also made clear that the charge created would only relate to the right of second defendant over the property and it will not affect the right of other persons if any who are otherwise entitled to right in the property”. Both sides give their own interpretation for the said finding and decreetal portion of judgment in R.S.A.No.493 of 2006. Learned counsel for defendant Nos.3 and 4 contend that apart from defendant Nos.3 and 4 none of other defendants had any right over the decree schedule property and hence the expression “other persons” referred to in paragraph 10 of the judgment and decreetal portion could relate to none other than defendant Nos.3 and 4 and hence it is evident that right of defendant Nos.3 and 4 in the decree schedule property has been protected by this court. Learned counsel for plaintiff would contend that what was purported to be conveyed by the impugned settlement deed is the W.P.C.No.16908 of 2010 : 5 : right of defendant No.2 in the decree schedule property and hence charge over the decree schedule property granted by the first appellate court would stand. 3. The first appellate court has accepted the case of plaintiff that impugned settlement deed was created in the name of defendant Nos.3 and 4 after lawyer's notice demanding payment of the amount was served on defendant No.2 and that on the facts and circumstances of the case, plaintiff is entitled to recover the amount charged on the entire decree schedule property. Ext.P3, judgment of this court does not show that the said finding of first appellate court was disturbed. What is contained in Ext.P3, judgment of this court is only the observation which I have extracted above from paragraph 10 as well as decreetal portion of the judgment. This court made only a clarification that charge will relate only to the right of defendant No.2 over the property, which charge was created by the first appellate court and that it will not in any way affect the right of other parties who are having “otherwise right over the same”. There is no case that defendant Nos.3 and 4, otherwise than by the impugned settlement deed have got any right over the decree schedule property. It is nobody's case that while the settlement deed was executed, defendant No.2 retained any right over the W.P.C.No.16908 of 2010 : 6 : decree schedule property for himself. Instead the entire property was stated to be settled in favour of defendant Nos.3 and 4. Therefore when this court observed that charge will only relate to the right of defendant No.2 over the property and observed that it will not affect right of other parties who are having “otherwise right over the same” and particularly as this court did not interfere with any of the findings of the first appellate court, it is evident that this court was not interfering with judgment and decree of the first appellate court creating charge over the decree schedule property. In so far as defendant No.2 had not retained any right over the decree schedule property while executing settlement deed, there is also no point in saying that only the right of defendant No.2 in the suit property is subject to charge and, whatever he has purported to convey to defendant Nos.3 and 4 is not covered by the charge. 4. No doubt, judgment of the first appellate court stand merged in the judgment of this court in second appeal. But, to understand the scope and real purport of observations made by this court, reference can be made to the judgment and decree of first appellate court. Having gone through the observations of this court referred to above as well as direction in the decreetal portion of judgment, I find myself unable to accept contention of W.P.C.No.16908 of 2010 : 7 : defendant Nos.3 and 4 that their right over the decree schedule property is not subjected to any charge and hence cannot be proceeded against. Executing court has rightly held that entire decree schedule property is liable to be proceeded against and accordingly proclaimed the said property for sale. No interference in the matter is required. 5. Learned counsel for petitioners/defendant Nos.3 and 4 at this stage requested that petitioners may be granted some time to pay off the decree amount so that, the property need not be sold. Learned counsel requested that petitioners may be grant a months' time for the said purpose. It is also pointed out that property is scheduled for sale on 09-07-2010. I have heard learned counsel for respondent No.1/plaintiff also in this regard. Having regard to the facts and circumstances stated by learned counsel for petitioners I am inclined to grant one months' time to the petitioners to discharge liability due under the decree. Resultantly the writ petition is dismissed. But petitioners are granted a months' time from this day to pay off the amount due under the decree subject to the following conditions: (i) Respondent No.3/judgment debtor shall on or before 09-07-2010 file affidavit in the executing court waiving fresh proclamation for sale. W.P.C.No.16908 of 2010 : 8 : (ii)On such affidavit being filed executing court shall adjourn the sale to a date after one month from this day. (iii)In case the above condition is not complied it will be open to the executing court to proceed with the sale as scheduled. (THOMAS P JOSEPH, JUDGE) Sbna/-