Prajitha vs Chammunni
2021 Latest Caselaw 13163 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
         THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 23RD DAY OF JUNE 2021 / 2ND ASHADHA, 1943
                   EX.FA NO. 6 OF 2018
  AGAINST THE ORDER/JUDGMENT IN OS 77/1992 OF PRINCIPAL
               SUBORDINATE JUDGE, PALAKKAD
APPELLANT/PETITIONER:

         PRAJITHA,
         AGED 42 YEARS
         W/O. SANEESH, THEMBER MADA, KUTTIPPALLAM
         P.O,CHITTUR TALUK, PALAKKAD DISTRICT, 678 101.
         BY ADV SRI.BINOY VASUDEVAN


RESPONDENTS/DECREE HOLDER/JUDGMENT DEBTOR:

    1    CHAMMUNNI
         S/O. CHENDHI, CHITTYAR PADAM, PALLASSANA,
         CHITTUR TALUK,PALAKKAD DISTRICT 678 101.
    2    SUGATHAN
         S/O. LATE G.P SUKUMARAN, ANACHIRA KALAM,
         PANAGATTIRI,ELAVANCHERI, CHITTUR TALUK,PALAKKAD
         DISTRICT 678 101.
         R1 BY ADVS.SRI.C.K.VIDYASAGAR
                    SRI.T.I.ABDUL SALAM
         R2 BY ADVS.SRI.T.C.SURESH MENON
                    SRI.A.R.NIMOD
                    SRI.P.S. APPU

     THIS EXECUTION FIRST APPEAL HAVING COME UP FOR
ADMISSION ON 23.06.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 Ex. F.A. No. 6 of 2018
                                    -:2:-

                            MARY JOSEPH, J.
                   ------------------------
                           Ex. F.A. No. 6 of 2018
                   ------------------------
                   Dated this the 23rd day of June, 2021

                                JUDGMENT

Order passed by the Principal Sub Judge, Palakkad dismissing

E.A. No.715 of 2015 filed under Order XXI Rule 97 of the Code of

Civil Procedure (for short 'CPC') is assailed by the petitioner in the

proceedings on hand.

2. As averred by the petitioner the plaint schedule property

was purchased by her in the year 1997 and ever since then was in

possession of it. Income generated from the said property is

utilised by her for her sustenance. To her utter dismay, on

08.12.2015, the 1st respondent along with five others trespassed

into the property and attempted to fill a portion of it. She

obstructed them from doing so and preferred a suit for injunction

before the Munsiff Court.

3. It was realised later that the 1 st respondent is an auction

purchaser of the plaint schedule property through Court auction.

Plaint schedule property was purchased by the petitioner on

04.01.1997 through sale deed bearing No.38/97 of SRO

Kollengodu. The purchase of the property by the 1 st respondent

was at a later point of time.

Ex. F.A. No. 6 of 2018

4. According to the 1st respondent the delivery of the

property was effected much earlier and therefore, the contention of

the petitioner that she came to know about it only on 08.12.2015 is

totally devoid of basis. According to her, the filing of the

application under Order XXI Rule 97 is only the outcome of the

collusion among the petitioner and the 2nd respondent.

5. Parties did not adduce any evidence before the

execution court to establish their pleadings as above. The court

below found on evaluation of the pleadings that the petitioner failed

in its venture to establish his claim. Accordingly the petition was

dismissed.

6. According to Sri.Binoy Vasudevan, the plaint schedule

property was purchased by the petitioner on 04.01.1997 much

earlier to the auction sale and therefore, the court below ought not

to have held the petitioner as not a bonafide purchaser. According

to him, the execution court failed to advert to the above factum

while passing the impugned order dismissing the application filed

by the petitioner.

7. It is pertinent to note from the materials of the case that

the 1st respondent bid the plaint schedule property in an auction

sale conducted by the Court on 02.11.2007 and the sale was Ex. F.A. No. 6 of 2018

confirmed in his favour on 04.01.2008. The 2 nd respondent, the

judgment debtor, also canvassed for upholding the title of the

petitioner, being the holder of the title of the plaint schedule

property much prior to the auction sale.

8. Suit in which the 1st respondent obtained a decree in his

favour was filed in the year 1992. The suit was decreed on

22.11.1999. The property was admittedly purchased by the

petitioner in the year 1997 and therefore it is convincingly clear

that the property was conveyed to her by the Judgment Debtor/2 nd

respondent during pendency of the Suit. Therefore, the transfer in

favour of the petitioner and without authority of the court is hit by

lis pendens under Section 52 of the Transfer of Property Act, 1882.

9. It is pertinent to note that the Amin, who had gone to

the plaint schedule property to effect delivery of the property in

favour of the 1st respondent, had reported to the Court that the

delivery process was obstructed to by the petitioner. Therefore in

the year 2009 itself the 1st respondent was constrained to file an

application for removal of obstruction. Consequently the

obstruction was removed and delivery of property was effected.

10. Moreover, the application seeking to set aside sale being

filed after the period of limitation of 60 days prescribed under Ex. F.A. No. 6 of 2018

Article 127 of the Limitation Act is also barred. E.A. No.715/2015

being filed after seven years from the day on which the auction

sale was confirmed in favour of the 1 st respondent is barred by law

and therefore is also not maintainable. The execution court has

rightly dismissed the application by the impugned order. The order

being a justifiable one, need no interference.

The appeal fails and is dismissed.

Sd/-

MARY JOSEPH, JUDGE

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