Kerala High Court
Chinnappa Abdul Nazar vs Subair C on 13 April, 2023
OP(C) NO. 647 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945
OP(C) NO. 647 OF 2023
AGAINST THE ORDER IN E.P 164/2022 IN FDIA NO.2021/2012 IN OS
436/2007 OF I ADDITIONAL SUB COURT, KOZHIKODE
PETITIONER/DECREE HOLDER/DEFENDANT:
CHINNAPPA ABDUL NAZAR
AGED 57 YEARS,
S/O MUKKALI AHAMMED KUNHI, RESIDING IN THE ADDRESS
KHADHEEJA MANZIL, PANNIYANKARA, KALLAYI P O,
KOZHIKODE DISTRICT, PIN - 673003
BY ADV G.SREEKUMAR (CHELUR)
RESPONDENT/JUDGMENT DEBTOR/PLAINTIFF:
SUBAIR C
AGED 62 YEARS,
S/O MUKKALI AHAMMED KUNHI, RESIDING IN THE ADDRESS
KHADHEEJA MANZIL, PANNIYANKARA, KALLAYI P O,
KOZHIKODE DISTRICT, PIN - 673003
BY ADVS.
K.MOHANAKANNAN
H.PRAVEEN (KOTTARAKARA)(K/736/2011)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
13.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 647 OF 2023
2
JUDGMENT
The original petition is filed to set aside Ext.P6 order
dated 6.3.2023 passed in E.P. No.164/2022 in FDIA
No.2021/2012 in O.S No.436/2007 by the Court of the
Subordinate Judge, Kozhikode. The petitioner is the
decree holder and the respondent is the judgment debtor
in the above Execution Petition.
2. The brief relevant facts leading to Ext.P6 order
are:
(i) O.S.No.436/2007 was instituted by the
respondent against the petitioner for a decree of partition
of the plaint schedule property.
(ii) The suit was decreed on 27.7.2009, ordering the
property has to be divided into one half each between the
parties.
OP(C) NO. 647 OF 2023
(iii) The petitioner filed the final decree application,
which was ultimately allowed by permitting him to
purchase the share of the respondent for an amount of
Rs.1,36,96,817/-.
(iv) Although original petitions were filed before this
Court challenging the sale, the same were dismissed by
Ext.P1 judgment. The review petitions were also
dismissed by Ext.P2 order.
(v) Later, the respondent again challenged the
execution proceedings by way of O.P (C) No.1113/2022,
which was also dismissed by Ext.P4 judgment and
confirmed by the Hon'ble Supreme Court by Ext.P5 order
passed in SLP(C) No.26325/2022. The Hon'ble Supreme
Court directed the respondent to file an affidavit and
vacate the plaint schedule property within five months.
The petitioner has complied with the the condition in
Ext.P5 order by depositing Rs.15,00,000/- (Rupees Fifteen
OP(C) NO. 647 OF 2023
lakh only).
(vi) Nonetheless, the Execution Court, by the
impugned Ext.P6 order, has directed the parties to seek
for a clarification from the Hon'ble Supreme Court with
regard to the interpretation of Ext.P5 order.
(vii) Ext.P6 order is ex-facie erroneous and wrong.
Hence, the original petition.
3. Heard; Sri.G.Sreekumar (Chelur), the learned
counsel appearing for the petitioner and
Sri.K.Mohanakannan, the learned counsel appearing for
the respondent.
4. When the original petition came up for
consideration on 31.3.2023, Sri.G.Sreekumar submitted
that the petitioner has no objection in the respondent
withdrawing the amount of Rs.1,36,96,497/- that is lying in
deposit before the court below, but the respondent may be
directed to give vacant possession of the plaint schedule
property to the petitioner.
OP(C) NO. 647 OF 2023
5. Sri.G.Mohanakannan, on the other hand,
submitted that the respondent was prepared to vacate the
plaint schedule property within a week.
6. In the light of the above submissions, this Court,
by orders dated 31.3.2023 and 5.4.2023, directed the
court below to depute the Amin and see that the vacant
possession of the property is handed over to the petitioner
in the forenoon of 10.4.2023 and the amount of
Rs.1,36,96,497/- to be released to the respondent in the
afternoon of the said day.
7. Pursuant to the above direction, it has been
reported by the court below, that the plaint schedule
property was handed over on 11.4.2023 and the amount
lying in deposit was released to the respondent on the
same day.
8. Today, when the original petition was taken up
for further consideration, Sri.K.Mohanakannan, submitted
that, as there is an ambiguity in Ext.P5 order passed by
OP(C) NO. 647 OF 2023
the Hon'ble Supreme Court with regard to payment of
interest on Rs.15,00,000/-, the respondent has already
moved the Hon'ble Supreme Court for clarification and the
same is pending consideration. Hence, this original
petition can be closed, subject to the right of the
respondent to realise any amount, as ordered by the
Hon'ble Supreme Court.
9. The said submission was not opposed by
Sri.G.Sreekumar.
10. In the light of the pleadings and materials on
record and after recording the submissions made by the
respective counsel appearing on both sides, I am of the
definite view that a quietus can be given to the original
petition by reserving the right of the respondent to realise
any amount from the petitioner as ordered by the Hon'ble
Supreme Court in the clarification petition stated to be
filed in SLP(C) No.26325/2022.
OP(C) NO. 647 OF 2023
Resultantly, the original petition is disposed of,
reserving the right of the respondent to recover the
amount, if any, ordered by the Hon'ble Supreme Court in
SLP (C) No.26325/2022 from the petitioner.
The original petition is ordered accordingly.
Sd/-
C.S.DIAS
ma/17.4.2023 JUDGE
OP(C) NO. 647 OF 2023
APPENDIX OF OP(C) 647/2023
PETITIONER EXHIBITS
ExhibitP1 A TRUE COPY OF THE COMMON JUDGMENT
DELIVERED IN O P(CIVIL) NOS. 763 AND 2822
OF 2017 DATED 13.08.2021 BY THIS HON'BLE
COURT.
ExhibitP2 A TRUE COPY OF THE ORDER IN REVIEW
PETITION NOS. 459 AND 462 OF 2022 IN O
P(CIVIL) NOS. 763 AND 2822 OF 2017
RESPECTIVELY DATED 11.08.2022 BY THIS
HON'BLE COURT.
ExhibitP3 EXT-P3: A TRUE COPY OF THE ORDER PASSED IN
I A NO. 2 OF 2022 IN R F A NO. 639 OF 2015
DATED 15.07.2022 ON THE FILE OF THIS
HON'BLE COURT AND CONNECTED CASE.
ExhibitP4 A TRUE COPY OF THE JUDGMENT IN O P © NO
1113 OF 22 DATED 14.9.22 BY THIS HON'BLE
COURT.
ExhibitP5 A TRUE COPY OF THE JUDGMENT DELIVERED BY
THE HON'BLE SUPREME COURT OF INDIA IN
SPECIAL LEAVE PETITION NO 26325 OF 22
DATED 26.9.22.
ExhibitP6 A TRUE COPY OF THE ORDER PASSED IN
EXECUTION PETITION NO 164 OF 22 IN FDIA NO
2021 OF 12 IN O S NO 436 OF 07 DATED
6.3.23 BY THE 1ST ADDITIONAL SUB COURT,
KOZHIKODE.
