Kerala High Court
Jose K.Varghese vs K.K.Mathew on 9 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943
EX.FA NO. 3 OF 2018
AGAINST THE ORDER/JUDGMENT IN OS 56/2007 OF SUB COURT,
MAVELIKKARA, ALAPPUZHA
APPELLANT/PETITIONER:
JOSE K. VARGHESE
AGED 62 YEARS
S/O.PHILIPOSE, KILIYIETHU PUTHEN VEEDU,
KAYAMKULAM P.O., CHERAVALLY MURI,
KAYAMKULAM VILLAGE.
BY ADVS.
SRI.BABU KARUKAPADATH
SRI.E.M.ABDUL KHADER
SMT.AMRIN FATHIMA
SRI.K.M.FAISAL KALAMASSERY
SRI.MITHUN BABY JOHN
SRI.RAHUL ROY
SMT.M.A.VAHEEDA BABU
SRI.P.U.VINOD KUMAR
RESPONDENTS/COUNTER PETITIONERS:
1 K.K.MATHEW
AGED 74 YEARS, S/O.KOSHY, KOCHALUMMOOTTIL HOUSE,
HOUSE NO.CNRA-18, CHEMPAKASSERY NAGAR, PATTAM P.O.,
ULLOOR VILLAGE, THIRUVANANTHAPURAM, PIN-695004.
2 G.GOPALAKRISHNA PILLAI
AGED 76 YEARS, S/O.GOVINDA PANICKER, KOICKAL
KALATHIL, MEENAMPALLY MURI, PATHIYOOR P.O.,
PERINGALA VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA
DISTRICT, PIN-690508.
(DIED)
3 ASHRAFF
PULIMOOTTIL HOUSE, KRISHNAPURAM, OACHIRA, KOLLAM
DISTRICT, PIN-690525.
ADDL.R4 CHANDRIKA,
AGED 70 YEARS
W/O.G.GOPALAKRISHNAN PILLAI, KOICKAL KALATHIL,
Ex.FA Nos.3/2018 & 26/2020
2
MENAMPALLY MURI,
PATHIYOOR.P.O., PERINGALA VILLAGE, MAVELIKARA
TALUK, ALAPUZHA - 690508.
ADDL.R5 ARUN GOPALAKRISHNAN,
AGED 47 YEARS
AGED 47 YEARS, S/O.GOPALAKRISHNAN PILLAI,
KOICKAL KALATHIL, MENAMPALLY MURI,
PATHIYOOR.PO.,
PERINGALA VILLAGE, MAVELIKARA TALUK, ALAPUZHA -
690508.
ADDL.R6 ANJANA RAJESH,
AGED 43 YEARS
AGED 43 YEARS, D/O.GOPALAKRISHNAN PILLAI,
KOICKAL KALATHIL, MENAMPALLY MURI,
PATHIYOOR.P.O., PERINGALA VILLAGE, MAVELIKARA
TALUK, ALAPUZHA- 690508.
ADDITIONAL RESPONDENTS 4 TO 6 ARE IMPLEADED AS
THE LEGAL HEIRS OF THE DECEASED 2ND RESPONDENT
AS PER ORDER DATED 09/09/2021 IN I.A.2443/2018
IN EX.FA 3/2018.
R1 BY ADV.SRI.V.C.JAMES
R3 BY ADV.SMT.J.HARIPRIYA
R3 BY ADV.SRI.K.B.PRADEEP
ADDL.R4 TO R6 BY ADV.SRI.B.MOHANLAL
THIS EXECUTION FIRST APPEAL HAVING COME UP FOR
ADMISSION ON 09.09.2021, ALONG WITH Ex.FA.26/2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Ex.FA Nos.3/2018 & 26/2020
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA,
1943
EX.FA NO. 26 OF 2020
AGAINST THE ORDER/JUDGMENT IN OS 56/2007 OF SUB COURT,
MAVELIKKARA, ALAPPUZHA
APPELLANT/PETITIONER:
JOSE K.VARGHESE
AGED 68 YEARS
S/O.PHILIPOSE,KILIYIETHU PUTHEN VEEDU,
KAYAMKULAM.P.O,CHERAVALLY MURI,
KAYAMKULAM VILLAGE.
BY ADVS.
BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SRI.P.U.VINOD KUMAR
SMT.ARYA RAGHUNATH
SMT.VAISAKHI V.
SRI.T.M.MUHAMMED MUSTHAQ
SHRI.UNAIS K.P.
RESPONDENTS/COUNTER PETITIONERS:
1 K.K.MATHEW,
AGED 76 YEARS, S/O.KOSHY,KOCHALUMMOOTTIL HOUSE,
HOUSE NO.CNRA-18,CHEMPAKASSERY NAGAR,
PATTAM.P.O, ULLOOR VILLAGE,THIRUVANANTHAPURAM,
PIN-695004.
Ex.FA Nos.3/2018 & 26/2020
4
2 G.CHANDRIKA,
AGED 70 YEARS,
W/O.LATE G.GOPALAKRISHNA PILLAI,
KOICKAL KALATHIL,MEENAMPALLY MURI,PATHIYOOR.P.O,
PERINGALA VILLAGE, MAVELIKKARA TALUK,
ALAPPUZHA DISTRICT,PIN-690508.
3 ARUN GOPALAKRISHNAN,
AGED 47 YEARS
S/O LATE G.GOPALAKRISHNAN PILLAI,
KOICKAL KALATHIL,MEENAMPALLY MURI,
PATHIYOOR.P.O,PERINGALA VILLAGE,
MAVELLIKKARA TALUK,
ALAPPUZHA DISTRICT, PIN-690508.
4 ANJANA RAJESH,
AGED 43 YEARS,
D/O.LATE G.GOPALAKRISHNA PILLAI,
OICKAL KALATHIL,MEENAMPALLY MURI,
PATHIYOOR.P.O,PERINGALA VILLAGE,
MAVELLIKKARA TALUK,
ALAPPUZHA DISTRICT, PIN-690508.
5 ASHRAFF,
PULIMOOTTIL HOUSE, KRISHNAPURAM,
OACHIRA, KOLLAM DISTRICT,PIN-690525.
R1 BY ADV. SRI.V.C.JAMES
R2 & R4 BY ADV.SRI.B.MOHANLAL
THIS EXECUTION FIRST APPEAL HAVING COME UP FOR
ADMISSION ON 09.09.2021, ALONG WITH Ex.FA.3/2018, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Ex.FA Nos.3/2018 & 26/2020
5
JUDGMENT
A money decree against one
G.Gopalakrishna Pillai sought to be executed
against his widow and children and also
against a stranger, the claimant under Rule 58
of Order XXI C.P.C. (Order XXXVIII Rule 8).
The suit was instituted for recovery of money
almost four years after the sale deed in
favour of the claimant executed by the
defendant (sale deed No.63/2003 dated
7.1.2003) and after the passing of the decree,
the said property sought to be proceeded
against by initiating execution for the sale
of the said property for that purpose and the
property was attached before judgment at the
trial stage. The claim petition filed under
Order XXXVIII Rule 8 C.P.C (to be adjudicated
under Rule 58 of Order XXI), was not pressed
Ex.FA Nos.3/2018 & 26/2020
into service under a mistaken impression.
Consequently it was dismissed as not pressed.
Thereon two other applications were preferred
under Order XXI Rule 97 C.P.C. at the
execution stage. Both the said applications
were dismissed as premature by the execution
court against which the claimant/obstructor
came up in two appeals.
2. The claimant obtained the property
under a valid sale deed of the year 2003 even
four years prior to the institution of the
suit. It is a suit for recovery of money and
there is no charge created over the said
property either prior to or subsequent to the
suit. It seems to be so unfortunate that the
said property owned by a stranger was sought
to be attached for sale in execution of a
money decree against the prior owner of the
property. The fact that the property was sold
Ex.FA Nos.3/2018 & 26/2020
to the claimant four years prior to the suit
was not even taken into consideration by the
execution court but the applications under
Order XXI Rule 97 C.P.C. were dismissed as
premature on the reason that the sale
conducted was so far not confirmed and no
delivery was ordered. It is now settled that
an application under Order XXI Rule 97 C.P.C.
can be maintained even prior to the order of
delivery in furtherance of court sale. As such
the dismissal of the said applications cannot
be sustained and same are liable to be set
aside and I do so.
3. Yet another relevant fact was also
brought to the notice of this Court which is
illustrative of how things are going on in the
hands of a counsel who was entrusted with the
job of protecting the interests of claimant.
The claim petition under Order XXXVIII Rule 8
Ex.FA Nos.3/2018 & 26/2020
C.P.C. was not pressed into service by the
counsel under a mistaken impression and a
wrong notion based on a decision rendered by a
Division Bench of this Court in Rajan, Alias
Rajan Gopinathan v. Dr.D.Jayashree Nayar &
Another [2010(1)KLT 142]. What is dealt under
the said decision is the jurisdiction of
execution court to adjudicate a claim petition
under Section 53 of Transfer of Property Act.
But under a mistaken impression and wrong
notion, the said application was not pressed
into service on account of the decision
rendered by the Division Bench in Rajan's case
(supra). Further the legal position laid down
in that case was overruled by a Full Bench of
this Court in Verizon Builders and Developers
Ltd. v. Jyothi Susan John [2019(1) KLT 100].
4. The well known principle of
"Ignorantia juris non-excusat" cannot be
Ex.FA Nos.3/2018 & 26/2020
applied when there is a fatal inadvertent
mistake committed by the counsel in not
proceeding with the claim petition. The act of
counsel under an inadvertent mistake cannot be
a ground to deny or to curtail the right,
title and interest acquired over an immovable
property. Hence the action of the counsel
would stand vitiated.
5. Yet another ground also raised whether
it is permissible to agitate a ground
available under Order XXI Rule 97 C.P.C. in
view of the dismissal of earlier application
under Order XXI Rule 58 C.P.C. There is no
adjudication as mandated under Order XXI Rule
58 C.P.C. on the application under Order
XXXIII Rule 8 C.P.C., hence the question of
res judicata would not come into play. The
claimant/the owner of the property can very
well maintain an application Order XXI Rule 97
Ex.FA Nos.3/2018 & 26/2020
C.P.C. since the dismissal of the application
was under an inadvertant mistake on the part
of the counsel, hence vitiated and cannot be
sustained. The claim petition was not
pressed into service due to an inadvertent
mistake by the counsel under a wrong
impression and due to lack of proper
understanding to the extent of making it
unconscionable. Hence by exercising the power
under Rule 33 of Order XLI C.P.C. and to avoid
grave injustice and miscarriage of justice,
the order is hereby set aside by restoring the
claim petition (under Order XXXVIII Rule 8
C.P.C.) to the file of execution court to be
dealt under Order XXI Rule 58 C.P.C. and to
decide the claim. It is also permissible to
consider a claim petition which was preferred
in the trial stage even at the execution stage
before its culmination since it is an
Ex.FA Nos.3/2018 & 26/2020
independent parallel proceedings which would
go along with the suit matter will its
culmination by execution. The legal position
was settled by this Court in Gopalakrishna
Pillai v. Syam Kumar and another [2017(1) KHC
816].
6. The orders in both the applications
under Order XXI Rule 97 C.P.C. are set aside
and the matter is remanded back to the trial
court. The same shall be taken into
consideration only after the disposal of the
claim petition under Order XXXVIII Rule 8
C.P.C. in accordance with the mandate under
Order XXI Rule 58 C.P.C. and for that purpose,
the order dismissing the claim petition (under
Order XXXVIII Rule 8 C.P.C) is hereby set
aside and the claim petition is restored to
the file of execution court with a direction
to proceed with the said application and to
Ex.FA Nos.3/2018 & 26/2020
decide the same on merits, for which the
parties shall appear before the execution
court on 05.10.2021.
Both the appeals are allowed accordingly.
Sd/-
P.SOMARAJAN
JUDGE
SPV
