Reetha vs New Millenium Kuries Pvt
2022 Latest Caselaw 6875 Ker

               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

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

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

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

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