Kerala High Court
Thankapa Rawther vs M/S.Ghatgepattil Industries Ltd on 24 October, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
2024:KER:79383
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
EX.FA NO. 48 OF 2010
ORDER DATED 08.07.2010 IN EA NO.169/2000 IN EP NO.32/1992 OF SUB
COURT, KOTTARAKKARA
O.S. NO.180/1982 OF CIVIL JUDGE, SENIOR DIVISION, KOLHAPUR
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APPELLANTS/CLAIMANTS (ADDL. JUDGMENT DEBTORS 2 & 4 TO 6):
1 THANKAPA RAWTHER, VAZHIYARIKATHU PURIYIDAM,
NEDUMPARAMBU MURI,PATHANAPURAM.P.O.
(2ND ADDL. JD REPRESENTED BY PAH THE 4TH APPELLANT)
2 SHAREENA.T.T,D/O.HAMEEDA BEEVI,
VAZIYARIKATHU PURAYIDOM, NEDUMPARAMBU MURI,
PATHANAPURAM.P.O.
3 FEMINA.T.T., D/O.HAMEEDA BEEVI,
VAZHIYARIKATHU PURIYADOM,NEDUMPARAMBA MURI,
PATHANAPURAM.P.O.
4 SHAMEENA.T.T., D/O.HAMEEDA BEEVI,
VAZHIYARIKATHU PURIYIDOM,NEDUMPARAMBU MURI,
PATHANAPURAM.P.O.
BY ADV SRI.S.ABDUL RAZZAK
RESPONDENTS/RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTOR:
1 M/S GHATGE PATIL INDUSTRIES LTD.
KOLHAPUR,KARVIR TALUK,KOLHAPUR DISTRICT,
UCHAGAON.P.O,MAHARASHTRA.(REPRESENTED BY ITS MANAGING
DIRECTOR-JAYA KUMAR BHARMA GONDA PATIL), PIN CODE-
591128.
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EX.FA NO. 48 OF 2010 -2-
2 M/S CALCUTTA COMMERCIAL CORPORATION,
VARGHESE GEORGE,63/1-2 SARAD BOSE ROAD,
CALCUTTA-700025, WEST BENGAL.
BY ADVS.
SRI.V.ABRAHAM MARKOS
SRI.B.J.JOHN PRAKASH
SRI.MATHEWS K.UTHUPPACHAN
SRI.TERRY V.JAMES
SRI.TOM THOMAS KAKKUZHIYIL
THIS EXECUTION FIRST APPEAL HAVING COME UP FOR HEARING ON
24.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN, J.
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Ex.F.A. No.48 of 2010
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Dated this the 24th day of October, 2024
J U D G M E N T
Order of the execution court, overruling the
objection of the appellants against the proceedings for
sale of the immovable property, is under challenge in
this appeal.
2. O.S. 180/1982 before the court of Civil Judge
(Senior Division), Kolhapur, Maharashtra, was a suit for
money. Therein, a decree charged on the immovable
property, which is the subject matter of the present
proceedings, was passed. The decree was passed on
23.11.1982. On 02.07.1990 as per Ext.A3 Sale Deed, the
judgment debtor conveyed the property to his brother,
James George. Subsequently, on 04.03.1993, the said
James George conveyed the property to the appellants
under Ext.A1 Sale Deed. The decree-holder is proceeding
against the property for sale, in execution of the
decree.
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3. The appellants objected to the proceedings on
the ground that, when Ext.A3 and A1 Sale Deeds were
executed, there was no attachment over the property.
They claimed that they were bona fide purchasers for
value and that the property could not be proceeded
against in execution of the decree.
4. The execution court overruled the objections of
the appellant.
5. I have heard learned counsel on either side.
6. The claim petition filed by the appellants under
Order XXI Rule 58 of the Code of Civil Procedure as E.A.
169/2000, was dismissed by the execution court on
25.01.2003. Though they sought for review of the order,
it was also dismissed. The order was challenged before
this Court in C.R.P. No.1652/2003. This Court as per
order dated 17.02.2005, negatived the contention of the
present appellants that they are bona fide purchasers
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for value and without notice of the charge. The C.R.P.
was dismissed. However, the appellants were permitted to
take part in the execution proceedings. The order
dismissing the claim petition under Order XXI Rule 58
has become final. It is not open for the appellants to
rake up the very same plea.
7. The learned counsel for the appellants argued
that the compromise charge decree was in respect of a
property which was not the subject matter of the suit,
and hence, in terms of Section 17(2)(vi) of the
Registration Act, such decree requires registration. The
decree having not been registered, is void and cannot be
executed. The execution petition is thus liable to be
dismissed, it is contended.
8. In terms of Section 17(2)(vi) of the
Registration Act, a compromise decree comprising of
immovable property which is not the subject-matter of
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the suit requires registration. However, I am afraid
that the contention of the learned counsel relying on
the provision, is liable to be repelled for reasons more
than one. To substantiate that the property involved was
not a subject matter of the suit, not even a copy of the
plaint is produced. In the earlier round of proceeding,
they never had such a case. That apart, taking it to be
that registration was necessary, the consequence that
would follow is only that, the decree does not create
charge over the property. The decree operates as a
simple money decree. The decree is liable to be executed
in all the modes provided for under the Code of Civil
Procedure. The present proceeding for sale in execution
of the decree is thus maintainable.
9. The learned counsel would then urge that Exts.A3
and A1 Sale Deeds are vitiated by fraud. The conveyances
were made during the subsistence of the charge over the
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property, which was not disclosed by the assignors, it
is contended. The above has nothing to do with the
present execution proceedings. The remedy of the
appellants is against their assignor. As noticed by the
execution court, Ext.A1 Sale Deed mentions about the
charge created over the property under the decree.
Ext.A1 also mentions that the charge has been released.
It was for the appellants to have ascertained and
convinced themselves of the same before purchasing the
property. Not having done so, they can only blame
themselves.
There is no merit in the appeal.
The Appeal fails and is dismissed. No costs.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. To Judge
