IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
OP(C) NO. 1016 OF 2022
IN EP 310/2012 OF II ADDITIONAL SUB COURT,THRISSUR
PETITIONER:
1 REETHA
AGED 68 YEARS
W/O THOMAS, CHIRAMEL HOUSE, MULAYAM VILLAGE, AYYAPPAN
KAVU DESAM , THRISSUR, PIN - 680751
2 THOMAS
AGED 46 YEARS
S/O. CHIRAMAL PAULSON, MULAYAM VILLAGE, AYYAPPANKAVU
DESOM, THRISSUR TALUK AND DISTRICT., PIN - 680751
3 ANNA
AGED 43 YEARS
D/O. CHIRAMAL PAULSON, MULAYAM VILLAGE, AYYAPPANKAVU
DESOM, THRISSUR TALUK AND DISTRICT., PIN - 680751
4 ANTHONY
AGED 42 YEARS
S/O. CHIARMAL PAULSON, MULAYAM VILLAGE, AYYAPPANKAVU
DESOM, THRISSUR TALUK AND DISTRICT, PIN - 680751
BY ADVS.
K.A.SREEJITH
K.DEEPA (KURIYAKKOTE)
M.V.ANANDAN
RESPONDENT:
NEW MILLENIUM KURIES PVT
MANNADIAR LANE, THRISSUR-680 001 REP. BY EXECUTIVE
DIRECTOR, T.J.CHARLY, AGED 61 YEARS, S/O. THOLATH JOB,
CHEMBUKAVUVILLAGE, NELLIKUNNU DESOM, SASTHRI ROAD IIND
STREET, THRISSUR, PIN - 680005
SRI. ROCKSON PAUL
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.06.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P (C) NO. 1016 OF 2022 2
Dated this the 14th day of June, 2022
JUDGMENT
The original petition is filed to set aside Exhibit P5 sale certificate issued in favour of the respondent and for other ancillary reliefs.
2. The petitioners' case in brief, in the memorandum of the original petition, is that, they were the defendants in O.S. No.702/2005 on the file of the II Additional Subordinate Judge's Court, Thrissur, which was filed by the respondent, seeking a decree for recovery of money. The suit was decreed as per Exhibit P1, permitting the respondent to realise from the petitioners an amount of Rs.1,38,800/- with interest and cost. Subsequent to the decree, the original defendant died and the petitioners were impleaded as the legal representatives of the original defendant. The petitioners had failed to pay the decree debt. The respondent had filed E.P No.310/2012 O.P (C) NO. 1016 OF 2022 3 and proceeded against the immovable property of the petitioners. Pursuant to the application filed by the respondent, the execution court by Exhibit P2 order, ordered the delivery of the properties of the petitioners. The petitioners challenged the said order before this Court by filing OP(C) No.1774/2017. This Court, by Exhibit P3 judgment, allowed the original petition by permitting the petitioners to pay off the decree debt in installments. The petitioners have paid the entire amount to the respondent as evidenced by Exhibit P4 letter issued by the respondent. However, during the interregnum, the execution court had issued Exhibit P5 sale certificate in favour of the respondent, which is reflected in the encumbrance certificate of the petitioners property. As the time period to set aside the sale is over, the petitioners are left remediless. Hence, the original petition.
3. Heard, Sri.Sreejith, the learned counsel appearing for the petitioners and Sri. Rockson Paul, the learned O.P (C) NO. 1016 OF 2022 4 counsel appearing for the respondent.
4. The respondent has by Exhibit P4 certificate admitted the receipt of the entire decree debt in the execution proceeding. Nonetheless, before the passing of Exhibit P3 judgment by this Court, the Execution Court had issued the sale certificate in favour of the respondent. Now, as the time period prescribed to set aside the sale has lapsed, the petitioners have no other efficacious remedy in law to set aside Exhibit P5.
5. On an overall consideration of the pleadings and materials on record and the submissions made across the bar, I am satisfied that the original petition is to be allowed by setting aside Exhibit P5.
In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I allow the original petition by setting aside Exhibit P5 sale certificate issued in favour of the respondent. The Execution Court shall duly communicate this judgment to the Sub Registry Office, Kuttanalloor and O.P (C) NO. 1016 OF 2022 5 order the cancellation of the encumbrance reflected over the execution schedule property.
The original petition is ordered accordingly.
SD/-
C.S.DIAS, JUDGE rmm14/06/2022 O.P (C) NO. 1016 OF 2022 6 APPENDIX OF OP(C) 1016/2022 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE DECREE DATED 5-06-
2006 IN OS: 702/2005 OF II ND ADDITIONAL SUB COURT THRISSUR Exhibit P2 THE TRUE COPY OF THE ORDER IN EA6/2017 IN OS: 702/2005 IN EP: 310/2012 SUB COURT THRISSUR Exhibit P3 THE TRUE COPY OF THE JUDGMENT OP( C) 1774/17 OF HIGH COURT OF KERALA Exhibit P4 THE TRUE COPY OF THE LETTER BY THE RESPONDENT DATED: 20 2 2021 Exhibit P5 THE TRUE COPY OF THE SALE CERTIFICATE DATED: 26-10-2016 Exhibit P6 THE TRUE COPY OF THE ENCUMBRANCE CERTIFICATE