Kerala High Court
F.M.Shamier Marickar vs Anitha Kuply on 7 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
OP(C) NO. 826 OF 2020
AGAINST THE ORDER/JUDGMENT IN OS 130/2016 OF ADDITIONAL SUB
COURT,KOTTAYAM, KOTTAYAM
PETITIONERS:
1 F.M.SHAMIER MARICKAR
AGED 43 YEARS
S/O DR. FAZAL MARICKAR,A-6,
KENT NALUKETTU,CHAKKARAPARAMBU ROAD,
VENNALA P.O., ERNAKULAM,
ERNAKULAM DISTRICT-682 028
2 M/S.MARICKAR PLANTATIONS PVT LTD,
REGISTERED OFFICE,41/3611 OLD RAILWAY STATION ROAD,
KOCHI-682 018 REP BY ITS DIRECTOR F.M.SHAMIER MARICKAR,
S/O DR. FAZAL MARICKAR,A-6,
KENT NALUKETTU,CHAKKARAPARAMBU VENNALA KARA,
VENNALA P.O., EDAPPALLY SOUTH P.O.,
EDAPPALLY SOUTH VILLAGE,PIN-682 028
3 M/S. NEST REALTIES INDIA PVT LTD.,
CORPORATE OFFICE, COMPASS 5TH FLOOR, N.H.47 BY-PASS,
CHAKKARAPARAMBU , NEAR VYSALI BUS STOP, COCHIN,
KERALA-682 0232, REP BY ITS DIRECTOR F.M.SHAMIER
MARICKAR, S/O DR. FAZAL MARICKAR,A-6,
KENT NALUKETTU,CHAKKARAPARAMBU VENNALA KARA,
VENNALA P.O.,EDAPPALLY SOUTH P.O.,
EDAPALLY SOUTH VILLAGE, PIN-682 028
BY ADVS.
KRISHNA PRASAD. S
SMT.SINDHU S KAMATH
SMT.ROHINI NAIR
SMT.SNEHA MANJOORAN
OP(C) NO. 826 OF 2020
2
RESPONDENTS:
1 ANITHA KUPLY,
AGED 51 YEARS
W/O. KURIEN KUPLY, HAVING PERMANENT RESIDENCE AT
KOLAKOZHICHIRA HOUSE, KAYPURAM, MUHAMMA P.O.,
THANNEERMUKKAM SOUTH VILLAGE, CHERTHALA TALUK,
ALAPPUZHA DISTRICT,PIN-682 585, KERALA AND NOW
RESIDING AT 1413 HUNTINGTON DRIVE, GLENVIEW,
ILLINOIS-60025,UNITED STATES OF AMERIA,
REPRESENTED BY HER POWER OF ATTORNEY HOLDER,LUKE
STEPHEN, AGED 61,S/O. JOSEPH STEPHEN, RESIDING
AT AT PULIMOOTTIL HOUSE, THODUPUZHA TALUK,
IDUKKI DISTRICT-685 584,KERALA
ADDL.2 KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION
LTD (KTDFC). REPRESENTED BY ITS AUTHORIZED OFFICER
PRAVEEN K. BRANCH MANAGER (ERNAKULAM)
KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION
LTD, LEVEL 8 (6TH FLOOR),
TRANS TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM -14
ADDL. 2ND RESPONDENT IS IMPLEADED AS PER ORDER
DATED 07.09.2021 IN I.A.NO.1 OF 2021.
BY ADVS.
SRI.P.THOMAS GEEVERGHESE
SHRI.T.P.SAJAN, SC, KTDFC
SRI.CHACKO SIMON
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 826 OF 2020
3
JUDGMENT
The petitioners are the judgment debtors in
O.S.No.130 of 2016 on the files of the Additional Sub
Court, Kottayam. The suit was settled in mediation and
Ext.P1 compromise decree passed. The entire property
is scheduled in the decree. The petitioners failed to abide
by the terms of the settlement and the respondent
initiated execution proceedings. The decree schedule
property was brought to sale on 04.03.2020 and
purchased by the respondent/decree holder. The sale is
yet to be confirmed. In the meanwhile, this Original
Petition was filed, challenging the manner in which the
sale is conducted. Pending the original petition, the
petitioners have moved the execution court with an
application under Order XXI Rule 90, seeking to set
aside the sale alleging material irregularity and fraud.
2. Learned counsel for the respondent submitted
that, the petitioners having resorted to the appropriate
remedy under the Code, the Original Petition is liable to
OP(C) NO. 826 OF 2020
be dismissed. Learned counsel for the petitioners
submitted that the petitioners have raised valid
objections against the manner in which the sale was
conducted and the property purchased by the decree
holder. Learned counsel for the additional 2 nd
respondent pointed out that the petitioners have
mortgaged the decree schedule property and availed
loan from the 2nd respondent and therefore, sale of the
property would prejudice the 2nd respondent.
3. The petitioners having filed the application
under Order XXI Rule 90 of CPC, cannot simultaneously
challenge the sale before this Court. Similarly, the
additional 2nd respondent cannot collaterally attack the
execution proceedings and should resort to the proper
remedies available.
In the result, the Original Petition is dismissed,
leaving open the petitioners liberty to raise all
contentions before the execution court in their pending
application. The additional respondent will also be at
OP(C) NO. 826 OF 2020
liberty to move the appropriate court/forum for
ventilation of its grievance. The execution court shall
endeavour to dispose the application under Order XXI
Rule 90 filed by the petitioners, as expeditiously as
possible and at any rate, within one month of receipt of a
copy of this judgment.
Sd/-
V.G.ARUN
JUDGE
scs
OP(C) NO. 826 OF 2020
APPENDIX OF OP(C) 826/2020
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE DECREE DATED
28.10.2017
EXHIBIT P2 A TRUE COPY OF THE EXECUTION PETITION
FILED AS E.P.NO.30 F 2018 BEFORE THE
ADDITIONAL SUB COURT, KOTTAYAM ON
17.03.2018
EXHIBIT P3 A TRUE PHOTOCOPY SHOWING THE SCHEDULE OF
THE PROPERTY DATED 17.09.2018
EXHIBIT P4 A TRUE COPY OF THE ORDER MADE IN
E.P.NO.130 OF 2018 IN OS NO.130 OF 2016
DATED 04.02.2020
EXHIBIT P5 A TRUE COPY OF THE VALUATION CERTIFICATE
ISSUED BY RAJESHG.C.G., CHARTED ENGINEER,
ALUVA DATED 16.12.2019
