The Mayyanad Regional Co-Operative ... vs Sumathi
2024 Latest Caselaw 14303 Ker

Kerala High Court

The Mayyanad Regional Co-Operative ... vs Sumathi on 30 May, 2024

Author: Kauser Edappagath

Bench: Kauser Edappagath

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
   THURSDAY, THE 30TH DAY OF MAY 2024 / 9TH JYAISHTA, 1946
                    OP(C) NO. 325 OF 2024
 AGAINST THE ORDER/JUDGMENT DATED 15.09.2023 IN OS NO.34 OF
2016 OF ASSISTANT SESSIONS COURT/ADDITIONAL SUB COURT,KOLLAM
PETITIONERS/PETITIONERS/JUDGMENT DEBTORS/DEFENDANTS:

    1    SUMATHY
         AGED 64 YEARS, D/0 KUTTY,
         RESIDING AT KANICHERIYIL KIZHAKKETHIL,
         THAZHATHUSSERI, KOOTTIKKADA P.0,
         KOLLAM, PIN - 691020
    2    SREEJITH P.S
         AGED 36 YEARS, S/O PEETHAMBARAN,
         RESIDING AT KANICHERIYIL KIZHAKKETHIL,
         THAZHATHUSSERI, KOOTTIKKADA P.0,
         KOLLAM, PIN - 691020

         BY ADV A.B.MOHANAKUMAR


RESPONDENT/RESPONDENT/DECREE HOLDER/PLAINTIFF:

         UDAYAKUMARI
         AGED 56 YEARS, W/O SOMAN,
         RESIDING AT PARANKIMAMMOODU,
         VADAKKEVILA KOLLAM, PIN - 691020

         BY ADV VISHNUDAS. H

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
30.05.2024, ALONG WITH OP(C).342/2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 O.P.(C) Nos. 325 & 342 of 2024


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              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
           THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
    THURSDAY, THE 30TH DAY OF MAY 2024 / 9TH JYAISHTA, 1946
                     OP(C) NO. 342 OF 2024
  AGAINST THE ORDER IN E.P.NO.15/2018 IN OS NO.34 OF 2016 OF
     ASSISTANT SESSIONS COURT/ADDITIONAL SUB COURT,KOLLAM
PETITIONER/CLAIMANT:
          THE MAYYANAD REGIONAL CO-OPERATIVE BANK LTD
          NO: 94, MAYYANAD P.O., KOLLAM,
          REPRESENTED BY ITS CHIEF EXECUTIVE, PIN - 691303
          BY ADVS.
          V.JAYAPRADEEP
          O.A.NURIYA
          ALAN PRIYADARSHI DEV
          D.S.LOKANATHAN
          LILIN LAL
          SAJEENA ABDU T.K.
RESPONDENTS/JUDGMENT DEBTORS AND DECREE HOLDER:
    1     SUMATHI
          AGED 66 YEARS, W/O PEETHAMBARAN,
          KANISEERI KIZHAKKATHIL VEEDU,
          THAZHATHU CHERRY, KOOTTIKKADA P.O.,
          MAYYANADU VILLAGE, KOLLAM TALUK, PIN - 691020
    2     P. S. SREEJITH
          AGED 42 YEARS, S/O PEETHAMBARAN,
          KANISEERI KIZHAKKATHIL VEEDU,
          THAZHATHU CHERRY, KOOTTIKKADA P.O.,
          MAYYANADU VILLAGE, KOLLAM TALUK, PIN - 691020
    3     UDAYAKUMARI
          AGED 50 YEARS, W/O SOMAN,
          PARANKIMAMVILAMOOTTIL VEEDU,
          VADAKKEVILA CHERRY, VADAKKEVILA VILLAGE,
          VADAKKEVILA P.O., KOLLAM TALUK, PIN - 691010
          BY ADVS.
          VISHNUDAS. H
          T.G.LELLULAL(K/45/1981)

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30.05.2024,
ALONG WITH OP(C).325/2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 O.P.(C) Nos. 325 & 342 of 2024


                                     ..3..


                             JUDGMENT

Both these original petitions are connected.

2. The respondent in O.P.(C) No. 325/2024 and the 3rd respondent

in O.P.(C) No.342/2024 obtained a money decree against the petitioners in

O.P.(C) No.325/2024 who are respondents 1 and 2 in O.P.(C) No.342/2024.

An execution petition has been filed as E.P.No.15/2018 before the Additional

Sub Court, Kollam to execute the decree. The property allegedly belongs to

the judgment debtors were attached. A draft sale proclamation was produced

by the decree holder. It was accepted and the upset price was fixed. The

property was ordered to be sold as per the order dated 20/01/2024, which has

been produced as Ext.P11 in O.P.(C) No.342/2024 and Ext.P6 in O.P.(C)

No.325/2024. In the meanwhile, the Mayyanad Regional Co-operative Bank

Ltd. filed Ext.P12 claim petition (produced in O.P.(C) No. 342/2024) before

the execution court. In spite of the pendency of the said claim petition, the

execution court ordered sale of the property. It is in these circumstances, the

claim petitioner has approached this Court by filing O.P.No.342/2024. The

judgment debtors took up a contention that the property attached is an

agricultural land and hence cannot be sold in execution of the decree. The

said contention was overruled by the execution court and sale was ordered. It O.P.(C) Nos. 325 & 342 of 2024

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is challenging the order, ordering sale of the property; judgment debtors

preferred O.P.(C) No.325/2024.

3. I have heard both sides.

4. It is not in dispute that Ext.P12 claim petition has been filed by

the claim petitioner before the property was ordered to be sold. Order XXI

Rule 58 and 59 of the CPC deals with the adjudication of claims and

objections in the execution court. Rule 58 says that:- "Where any claims

preferred to, or any objection is made to the attachment of, any property

attached in execution of a decree on the ground that such property is not

liable to such attachment, the Court shall proceed to adjudicate upon the

claim or objection in accordance with the provisions contained therein."

Rule 59 (b) says that:- "Where before the claim was preferred or the

objection was made, the property attached had already been advertised for

sale, the Court may- if the property is immovable, make an order that,

pending the adjudication of the claim or objection, the property shall not be

sold, or, that pending such adjudication, the property may be sold but the sale

shall not be confirmed." Hence, the execution court is bound to adjudicate

the claim petition preferred by the claim petitioner before selling the property

attached.

O.P.(C) Nos. 325 & 342 of 2024

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5. For these reasons, these original petitions are disposed of with a

direction to the execution court to adjudicate the claim petition preferred by

the claim petitioner. The execution court shall proceed further, in accordance

with law, subject to the outcome of the claim petition. Till the adjudication of

the claim petition, the attached property shall not be sold.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE APA O.P.(C) Nos. 325 & 342 of 2024

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APPENDIX OF OP(C) 325/2024

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 17- 06-2016 ALONG WITH PLAINT SCHEDULE IN OS 34/2016, SUB COURT, KOLLAM EXHIBIT P2 TRUE COPY OF THE JUDGEMENT DATED 31-10-2016 IN O.S 34/2016 BEFORE THE COURT OF ADDL. SUB JUDGE, KOLLAM EXHIBIT P3 TRUE COPY OF EP NO 15/2018 DATED 17-01-2018 IN OS NO 34/2016 BEFORE ADDITIONAL SUB COURT, KOLLAM EXHIBIT P4 TRUE COPY OF THE OBJECTION DATED 17-06-2021

BEFORE FIRST ADDITIONAL SUB COURT, KOLLAM EXHIBIT P5 TRUE COPY THE ORDER DATED 15-09-2023 IN EA NO

PENDING BEFORE THE ADDITIONAL SUB COURT, KOLLAM EXHIBIT P6 CERTIFIED COPY OF THE ORDER DATED 20-01-2024 IN EP NO 15/2018 IN O.S. NO 34/2016 AT ADDL. SUB COURT, KOLLAM

RESPONDENT EXHIBITS EXHIBIT R(1) A TRUE COPY OF GAZETTE NOTIFICATION NO.A3- 5261/2014 OF MAYYANAD GRAMA PANCHAYAT DATED 23- 03-2016 EXHIBIT R(2) A TRUE COPY OF THE CERTIFICATE OF ENCUMBRANCE ON PROPERTY DATED 21-08-2017 ISSUED BY REGISTRATION DEPARTMERNT EXHIBIT R(3) A TRUE COPY OF THE ORDER IN I.A NO.1081/2016 IN O.S NO.34/2016 DATED 30-08-2016 OF THE HON'BLE SUB COURT, KOLLAM EXHIBIT R(4) A TRUE COPY OF THE AMENDED COPY OF PLAINT SCHEDULE PROPERTY CARRIED OUT IN O.S NO.34/2016 ON 30-08-2016 EXHIBIT R(5) A TRUE COPY OF THE OBJECTION FILED IN E.A 246/2021 IN E.P 15/2018 BEFORE THE HON'BLE ADDL.SUB-COURT,KOLLAM O.P.(C) Nos. 325 & 342 of 2024

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APPENDIX OF OP(C) 342/2024

PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE LOAN APPLICATION DATED 04/04/2012 OF SUMATHI EXHIBIT P2 THE TRUE COPY OF THE LOAN APPLICATION DATED 04/04/2012 OF PEETHAMBARAN EXHIBIT P3 THE TRUE COPY OF THE LOAN APPLICATION DATED 04/04/2012 OF PRADEEP EXHIBIT P4 THE TRUE COPY OF THE LOAN APPLICATION DATED 04/04/2012 OF SUNITHA EXHIBIT P5 THE TRUE COPY OF THE TITLE DEED NO.4663 DATED 31.12.1971 EXHIBIT P6 THE COPY OF THE ARBITRATION AWARD DATED

EXHIBIT P7 THE COPY OF THE ARBITRATION AWARD DATED

EXHIBIT.P8 THE COPY OF THE ARBITRATION AWARD DATED

EXHIBIT.P9 THE COPY OF THE ARBITRATION AWARD DATED

EXHIBIT.P10 THE TRUE COPY OF THE JUDGMENT DATED 31/10/2016 IN O. S. NO. 34/2016 OF ADDITIONAL SUB COURT, KOLLAM EXHIBIT.P11 TRUE COPY OF THE ORDER DATED 20.01.2024 IN EP.15/2018 IN OS. 34/2016 OF ADDITIONAL SUB COURT, KOLLAM EXHIBIT.P12 THE COPY OF THE CLAIM PETITION DATED 08.02.2024 IN EP.15/2018 IN OS.34/2016 OF ADDITIONAL SUB COURT, KOLLAM EXHIBIT.P13 TRUE COPY OF THE TAX RECEIPT DATED.4.4.2012 ISSUED BY THE VILLAGE OFFICER, MAYYANAD EXHIBIT.P14 TRUE COPY OF THE POSSESSION CERTIFICATE DATED.16.4.2010 ISSUED BY THE VILLAGE OFFICER, MAYYANAD EXHIBIT.P15 TRUE COPY OF THE LOCATION CERTIFICATE DATED.22.4.2010 ISSUED BY THE VILLAGE OFFICER, MAYYANAD EXHIBIT.P16 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED.9.4.2012 ISSUED BY THE SUB REGISTRAR, KOTTIYAM O.P.(C) Nos. 325 & 342 of 2024

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EXHIBIT.P17 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED.26.4.2012 ISSUED BY THE SUB REGISTRAR, KOTTIYAM

RESPONDENT EXHIBITS EXHIBIT R3(A) A TRUE COPY OF THE EXECUTION PETITION BEFORE THE HON'BLE SUB COURT, KOLLAM IN E.P NO.15/2018 IN O.S NO.34/2016 FILED BY THE 3RD RESPONDENT EXHIBIT R3(B) . A TRUE COPY OF THE OBJECTION FILED BY THE 3RD RESPONDENT IN E.P 15/2018 IN O.S NO.34/2016 BEFORE THE HON'BLE SUB COURT, KOLLAM EXHIBIT R3(C) A TRUE COPY OF THE REPORT OF VILLAGE OFFICER VO NO.342/16 DATED 27/06/2016 EXHIBIT R3(D) A TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A NO.1081/2016 IN O.S NO.34/2016 BEFORE THE HON'BLE SUB COURT, KOLLAM EXHIBIT R3(E) . A TRUE COPY OF THE ORDER IN I.A NO.1081/2016 IN O.S 34/2016 DATED 30-08-2016 OF THE HON'BLE SUB COURT, KOLLAM EXHIBIT R3(F) A TRUE COPY OF THE AMENDED COPY OF PLAINT SCHEDULE PROPERTY CARRIED OUT IN O.S NO.34/2016 ON 30-08-2016