Ratheesh Kumar P.K vs Deepa R
2021 Latest Caselaw 19785 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                              &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
                   OP (FC) NO. 245 OF 2017
  IN EP NO.26/2010 NI EP 26/2014 IN OP 180/2009 OF FAMILY
                      COURT, THIRUVALLA
PETITIONER:

         RATHEESH KUMAR P.K., S/O.KARUNAKARAN PILLAI,SANTHI
         BHAVAN,KATTODU.P.O,MEENATHALAKKARA
         MURI,KUTTAPPUZHA VILLAGE,THIRUVALLA
         TALUK,PATHANAMTHITTA DISTRICT.

          BY ADV SMT.BINDU GEORGE



RESPONDENT:

    1    DEEPA R, CHIRAKKAL,AZHIYIDATHUCHIRA MURI,
         KAVUMBHAGOM VILLAGE,THIRUVALLA
         TALUK,PATHANAMTHITTA DIST.689101.

    2    SATHEESH KUMAR.P.K
         S/O KARUNAKARAN PILLAI,SANTHI
         BHAVAN,KATTODU.P.O,MEENAHTLAKKARA MURI,KUTAPPUZHA
         VILLAGE,THIRUVALLA TALUK,PATHANAMTHITTA
         DIST.689101.
 O.P.(FC).No.245/2017 &
Mat.Appeal (Exe) No.2/2017

                             -:2:-

    3       VARGHESE MATHEW
            KANANILKKUMKALAYAIL HOUSE,THEEYADICKAL.P.O,RANNI
            TALUK,PATHANAMTHITTA DISTRICT-689109.

            BY ADVS.
            SRI.C.V.MANUVILSAN
            SRI.PRATHEESH.P
            SRI.PRATHEESH.P
            SMT.C.B.SABEELA
            SRI.UNNI. K.K. EZHUMATTOOR
            SMT.K.VIDYA
            SRI.VINODE V. LUKA




        THIS MAT APPEAL (EXECUTION) HAVING BEEN FINALLY HEARD
ON 23.09.2021, ALONG WITH MA (EXE.).2/2017, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 O.P.(FC).No.245/2017 &
Mat.Appeal (Exe) No.2/2017

                             -:3:-




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                &
          THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
                     MA (EXE.) NO. 2 OF 2017
     AGAINST THE ORDER DATED 30.6.2016 IN EP 49/2015, EP
        26/2010IN OP 180/2009 OF FAMILY COURT, THIRUVALLA
APPELLANT/PETITIONER:

            RATHEESH KUMAR P.K.
            S/O.KARUNAKARAN PILLAI, SANTHI BHAVAN, KATTODU P
            O, MEETHALAKKARA MURI, KUTTAPPUZHA VILLAGE,
            THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.

           BY ADVS.
           SRI.P.K.SREEDHARAN
           SMT.BINDU GEORGE




RESPONDENT/S:

    1       DEEPA R., CHIRAKKAL, AZHIYIDATHUCHIRA MURI,
            KAVUMBHAGOM VILLAGE, THIRUVALLA TALUK,
            PATHAMATHITTA DISTRICT 689101
 O.P.(FC).No.245/2017 &
Mat.Appeal (Exe) No.2/2017

                             -:4:-

    2      SATHEESH KUMAR P K
           S/O.KARUNAKARAN PILLAI, SANTHI BHAVAN, KATTODU P
           O, MEETHALAKKARA MURI, KUTTAPPUZHA VILLAGE,
           THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT 689101

          BY ADVS.
          SRI.C.V.MANUVILSAN
          SRI.PRATHEESH.P
          SMT.C.B.SABEELA
          SMT.K.VIDYA
          SRI.VINODE V. LUKA




     THIS MAT APPEAL (EXECUTION) HAVING BEEN FINALLY HEARD
ON 23.09.2021, ALONG WITH OP (FC).245/2017, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 O.P.(FC).No.245/2017 &
Mat.Appeal (Exe) No.2/2017

                                    -:5:-




                               JUDGMENT

Dated this the 23rd day of September, 2021

Kauser Edappagath, J.

The dispute in the above Original Petition and Matrimonial Appeal

(Execution) pertains to the claim of the appellant/petitioner over the

property attached and sold in execution of a decree in O.P.No.180/2009 on

the files of the Family Court, Thiruvalla (for short 'the court below').

2. The 1st respondent was the wife of the 2 nd respondent. The

appellant/petitioner is the brother of the 2 nd respondent. The 1st respondent

instituted O.P.No.180/2009 at the court below against the 2 nd respondent

and her parents for recovery of gold ornaments and money. The said

original petition was decreed against the 2 nd respondent alone and a decree

for a sum of Rs.3,28,000/-(Rupees Three lakhs twenty eight thousand only) O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

with interest was granted.

3. The decree holder/ 1st respondent filed an execution petition at

the court below as E.P.No.26/2010 to execute the decree by attachment and

sale of property allegedly belongs to the 2 nd respondent. The property

comprises of 8 Ares of land situated in Sy.No.675/22 of Kuttapuzha Village.

The property was initially attached and then sold in court auction to the 3 rd

respondent in O.P.(FC).No.245/2017. The sale was effected on 12.7.2013

and it was confirmed on 24.9.2013. However, the delivery has not been

effected so far in view of the interim order passed by this Court in O.P.

(FC).No.245/2017. Even before the sale, the appellant/petitioner filed

E.A.No. 49/2015. invoking Order XXI Rule 58 of the CPC alleging that he

has got 1/3rd right over the property attached. His case is that the property

attached originally belonged to his father and on the death of his father, the

property devolved on him, the 2nd respondent as well as their mother and O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

as such, he is having 1/3 rd right over the property and the said right ought

not have been attached. A declaration was sought in the claim petition to

declare his 1/3rd right over the property. The claim petition was filed on

23.8.2012. The court below without considering the claim, conducted the

sale on 12.7.2013. The 3rd respondent in OP(FC) purchased the property in

court auction. The sale was confirmed on 24.9.2013. The claim petition

was taken for consideration after the confirmation of sale and it was

disposed of on 30.6.2016 as per impugned order in Mat.A.(Exe) 2/2017.

The court below dismissed the claim petition mainly holding that the

petitioner/appellant failed to prove that he is having 1/3 rd right over the

property attached and sold as contented by him. It is challenging the said

order Mat.A.(Exe) No.2/17 has been filed.

4. Thereafter, the 3rd respondent in O.P.(FC).No.245/2017 who is

the auction purchaser filed E.P.No. 26/2014 at the court below to deliver O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

the property purchased by him through auction. O.P.(FC) No.245/2017

has been filed challenging the sale and to keep in abeyance the proceedings

in E.P.No.26/2010 and E.P.No.26/2014.

5. We have heard the counsel appearing on both sides.

6. The definite case of the appellant/petitioner is that his father

Sri.Karunakaran Pillai was the title holder of 13.17 Ares of land comprised

in Re.Sy.Nos. 675/22 and 675/23 of Kuttappuzha Village and on his death,

the said property devolved on him, the 2 nd respondent and their mother.

The property attached and sold to the 3 rd respondent is situated in Re.Sy.No.

675/22 and its extent is 8 Ares. Sri.Karunakaran Pillai died on 10.7.2010.

The claim petition was adjudicated by the court below giving opportunity

to both parties to adduce evidence. The petitioner/claim petitioner in

support of his case produced Ext.A1 title deed. The schedule of Ext.A1 title

deed would show that it is in respect of 5.70 Ares of land situated in O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

Sy.No.675/23. The court below holding that the survey number shown in

Ext.A1 title deed and the survey number of property sold in court auction

was different, dismissed the claim petition.

7. At this Court, the appellant/petitioner produced four

documents as additional evidence invoking Order XLI Rule 27 of the CPC.

The document Nos. 1 and 2 are the judgment and decree in O.S.No.8/2014.

It was a suit for partition between the appellant/petitioner, the 2 nd

respondent and their mother. The auction purchaser was also impleaded

as additional 3rd defendant in the said suit. Two items of properties are

shown in the schedule of the said suit. A perusal of the property described

in the decree schedule No.1 would show that it is the same property now

attached and sold in E.P.No. 26/2010. The description of the property is

one and the same. The title deed of the said property has also been

produced before us. It is document No.2019/1973. The said title deed O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

would show that Sri.Karunakara Pillai had title over the property covered

by it. O.S.No.8/14 was decreed holding that on the death of

Sri.Karunakaran Pillai, the appellant, the 2 nd respondent as well as their

mother would get 1/3rd right over the property and a preliminary decree

for partition was passed. It is pertinent to note that the auction purchaser

contested the said suit and put forward all his contentions. The court found

that the auction purchaser would get only 1/3 rd right of the 2nd respondent.

The documents produced before us would prima facie show that the

appellant/petitioner has acquired 1/3rd right over the property attached and

sold and the 2nd respondent has only 1/3rd right in the said property. The

auction purchaser cannot acquire better title than the 2 nd respondent had

over the property.

8. As stated already, the claim petition was filed on 23.8.2012.

During the pendency of the said claim petition, the sale was ordered and it O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

was confirmed on 12.7.2013 and 24.9.2013 respectively. Order XXI Rule

59(b) provides that where a claim was preferred under Rule 58, the court

shall postpone the sale pending the investigation of the claim. It specifically

says that at any rate, even if the property is sold, the sale shall not be

confirmed pending adjudication of the claim. Thus, the action on the part

of the court below in conducting and confirming the sale while the claim

petition was pending is patently wrong and contrary to the provisions of

Order XXI Rule 59 of the CPC.

9. What has been produced before us are the photocopies of the

decree, judgment and title deeds. The petition under Order XXI Rule 58

has to be adjudicated as suit. These documents were not produced at the

court below. The decree holder did not get an opportunity to counter those

documents as those documents were not tendered in evidence. Hence we

are of the view that the appellant/petitioner shall be given an opportunity O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

to produce the original of those documents at the court below to

substantiate his claim that he is having 1/3rd right over the property.

10. In the light of the above findings, we set aside the impugned

order in Mat.Appeal (Exe) No.2/17. E.A.No.49/15 is remanded to the court

below for fresh disposal. The court below shall give opportunity to the

appellant/petitioner as well as the respondents to adduce additional

evidence. Thereafter, the court below shall dispose of the claim petition in

accordance with law on merits. In the event the court below allows the

claim petition, the sale effected and confirmed by the court below shall be

confined to 1/3rd right of the 2nd respondent. The court below shall recall

the sale certificate and make necessary corrections therein to that extent.

The court below shall also refund 2/3 rd of the sale price already deposited

by the auction purchaser/3rd respondent to him. The decree holder/1 st

respondent is entitled only to 1/3 rd of the sale price. For the balance O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

amount, if any, the decree holder/1 st respondent is free to execute the

decree in accordance with law. All further proceedings in EP No.26/2014

shall be kept in abeyance till the disposal of EA No.49/2015. The parties

shall appear before the court below on 1/10/2021 and the entire

proceedings shall be concluded by the court below within a period of three

months therefrom.

Mat.Appeal and OP(FC) are disposed of as above.

ASd/-

A.MUHAMED MUSTAQUE JUDGE Sd/-

                                          DR. KAUSER EDAPPAGATH
                                                    JUDGE
kp                       True copy
                             P.A. To Judge
 O.P.(FC).No.245/2017 &
Mat.Appeal (Exe) No.2/2017



                  APPENDIX OF OP (FC) 245/2017

PETITIONER EXHIBITS

EXHIBIT P1            A TRUE COPY OF THE JUDGMENT AND DECREE
                      DATED 24/11/2009 IN OP(HMA)180/2009 OF
                      THE FAMILY COURT,THIRUVALLA.

EXHIBIT P2            A TRUE COPY OF THE CLAIM PETITION EA
                      NO:49/2012 IN E.P.26/2010 IN
                      O.P.NO.180/2009 OF THE FAMILY COURT,
                      THIRUVALLA.

EXHIBIT P3            A TRUE COPY OF THE PROOF AFFIDAVIT IN
                      E.A.49/2012 IN E.P.26/2010 IN OP
                      NO.180/2009 BEFORE THE HON'BLE FAMILY
                      COURT THIRUVALLA

EXHIBIT P4            A TRUE COPY OF THE PETITION FOR
                      REOPENING EVIDENC IN E.P.26/201O IN OP
                      NO.180/2009 BEFORE THE HON'BLE FAMILY
                      COURT THIRUVALLA

EXHIBIT P5            A TRUE COPY OF OBJECTION FILED BY THE
                      FIRST RESPONDENT IN E.A.49/2012 IN

E.P.NO.26/2010 IN O.P.NO.180/2009 BEFORE THE HON'BLE FAMILY COURT,THIRUVALLA

EXHIBIT P6 A TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE FIRST RESPONDENT IN E.A.49/2012 IN E.P.26/2010 ION OP.NO180/2009 BEFORE THE HON'BE FAMILY COURT,THIRUVALLA

EXHIBIT P7 A TRUE COPY OF THE CLAIM PETITION E.A.NO.103/2013 IN E..P.26/2010 IN O.P.NO.180/2009 BEFORE THE HON'BLE FAMILY COURT,THIRUVALLA O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

EXHIBIT P8 A TRUE COPY OF THE PROOF AFFIDAVIT IN E.A.103/2013 IN E.P.26/2010 IN O.P.180/2009 BEFORE THE HON'BLE FAMILY COURT,THIRUVALLA

EXHIBIT P9 A TRUE COPY OF THE RESTORATION PETITION IN E.A.103/2013 IN E.P.NO.26/2010 IN OP.NO.180/2009 BEFORE THE HON'BLE FAMILY COURT,THIRUVALLA

EXHIBIT P10 A TRUE COPY OF THE EP.NO.26/2014 IN O..P.180/2009 BEFORE THE HON'BLE FAMILY COURT,THIRUVALLA

EXHIBIT P11 A TRUE COPY OF THE IMPLEADING PETITION E.A.118/2014,IN E.P.26/2014 IN O.P.NO.180/2009 BEFORE THE HON'BLE FAMILY COIURT,THIRUVALLA

EXHIBIT P12 A TRUE COPY OF THE ORDER DATED 30.06.2016 IN E.A.49/2015 IN E.P.NO.26/2010 IN OP.NO.180/2009 BEFORE THE HON'BLE FAMILY COURT,THIRUVALLA.

Exhibit P13 TRUE COPY OF THE JUDGMENT DATED 29.06.2021.

Exhibit P14           TRUE COPY OF THE DECREE.

Exhibit P15           TRUE COPY OF THE DEED NO.2019/1973 DATED
                      25.07.1973 WITH TRANSLATION.

Exhibit P16           TRUE COPY OF THE DEED NO.3760/1996 DATED
                      11.12.1996 WITH TRANSLATION.
 O.P.(FC).No.245/2017 &
Mat.Appeal (Exe) No.2/2017



APPENDIX IN MAT.(EXE) 2/2017



ANNEXURE 1            CERTIFIED COPY OF THE JUDGMENT DATED
                      29.06.2021.

ANNEXURE 2            CERTIFIED COPY OF THE DECREE.

ANNEXURE 3            NOTARISED COPY OF THE DEED NO.2019/1973
                      DATED 25.07.1973 WITH TRANSLATION.

ANNEXUE 4             NOTARISED COPY OF THE DEED NO.3760/1996
                      DATED 11.12.1996 WITH TRANSLATION.