K. Krishnan vs Dr. Anantha Kamath
2025 Latest Caselaw 6217 Ker

Kerala High Court

K. Krishnan vs Dr. Anantha Kamath on 23 May, 2025

OP(C) NO. 2918 OF 2024

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               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                THE HONOURABLE MR. JUSTICE K. NATARAJAN

       FRIDAY, THE 23RD DAY OF MAY 2025 / 2ND JYAISHTA, 1947

                         OP(C) NO. 2918 OF 2024

       AGAINST THE ORDER/JUDGMENT DATED 09.12.2024 IN OS NO.54

OF 2012 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL COURT,

KASARAGOD

PETITIONER:

             K. KRISHNAN
             AGED 81 YEARS
             S/O. PANANKARNAVAR, KADAPURAM, KASARAGODKASBA
             VILLAGE, POST KASARAGOD, PIN - 671121


             BY ADVS.
             SRI.PUSHPARAJAN KODOTH
             SHRI.K.JAYESH MOHANKUMAR
             SMT.VANDANA MENON
             SRI.VIMAL VIJAY
             SHRI.VINAYAK MANOHARAN P.




RESPONDENT:

             DR. ANANTHA KAMATH
             AGED 70 YEARS
             S/O. HARIRAYA KAMATH, R/AT NANDA GOKULA, NEAR S.V.V.
             TEMPLE, KASARAGODTALUK AND DISTRICT, P.O.
             KASARAGOD ., PIN - 671121


             BY ADVS.
             SMT.R.RANJANIE
             SMT.SELVA JYOTHY A.
 OP(C) NO. 2918 OF 2024

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OTHER PRESENT:

             SRI. KRISHNANUNNI(SR)
             SRI.LEKSHMY NARAYANAN(SR)


      THIS     OP    (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
23.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 2918 OF 2024

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                                JUDGMENT

(Dated this the 23rd day of May, 2025)

This original petition is filed by the petitioner

challenging the impugned order dated 09.12.2024 passed in

E.A.3 of 2024 in E.A.No.1 of 2024 in EP.No.76 of 2015 arising

out of O.S.No.54 of 2012 and also Ext.P49 order dated

09.12.2024, appointing the Taluk surveyor for visiting the

property.

2. Heard the arguments of the learned counsel for the

petitioner as well as the respondent.

3. The learned counsel for the petitioner contented that

though the respondent obtained the decree and also obtained a

sale certificate, as per the auction sale for the purchase of block

No.1 and 3, but the trial court/ Execution court passed an order

stating that the property 'block No.1 and 3' along with the way

to access the property, has been delivered to the respondent,

which is not correct. Therefore, it is contented that the order

suffers illegality, even though, it was not shown to the

respondent that in the sale certificate, delivering the access way OP(C) NO. 2918 OF 2024

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to the property is not correct. Hence prayed for setting aside

the same.

4. The learned counsel for the respondent submitted

that the sale proclamation has been published and the copy

was served to the petitioner, which was not challenged. There is

a clear mention of the right arising the access to the property

i.e., block No.1 and 3 given in the very same certificate. But

the petitioner obstructed the entry to block 1 and 3 by locking

the gate. Therefore, he has filed an application before the

Execution Court seeking a way to access his property.

Considering the same, the trial court passed the order that

there is no illegality committed by the trial court in the

impugned order. Hence, prayed for dismissing the petition.

5. Having heard the arguments and perusal of records,

it is not in dispute that a sale proclamation was issued and the

property has been purchased by the respondent and the sale

certificate also issued as per Ext.R1(b), wherein the description

of the property is referred to as under.

" This is to certify that the above named Auction Purchaser has been declared as the purchaser of the immovable property described in the schedule below for Rs.5,50,00,100/- (Rupees OP(C) NO. 2918 OF 2024

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Five Crore Fifty Lakh and one Hundred only) at a sale by public auction on 26th day of September, 2023 held at the Court premises the execution of decree dated 14/11/2014 in O.S.No.54 of 2012 and the said sale has been duly confirmed by this court on 05.04.2024 in favour of the Auction purchaser/Decree holder"

6. On perusal of the sale certificate and the schedule

mentioned therein, it is categorically mentioned in the

certificate that the decree holder has obtained right over flat

No.1 and 3. If the right to access to the road marked as

R.S.No.121/2C4 in the commissioner plan dated 13.06.2016.

The commissioner's report, which reveals the access to the flat

No.1 and 3 has described it as 121/2C4 at entry No.4 it was

shown in the Ext.P8 produced by the learned counsel for the

petitioner.

7. The learned counsel for the respondent also

submitted before the court that he has not claimed any

ownership right over the pathway for the ingress and egress

which was sought in the sale certificate. Only right to use the

121/2C4 as ingress and egress to approach his property from

the main road. The learned counsel for the petitioner also

submitted that the trial court order is little confusing that it

says the delivery of the right of way to the decree holder. But OP(C) NO. 2918 OF 2024

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on perusal of the order, though it is a combined sentence, but it

does not give right to the decree holder for delivery of the

possession of the property described in '4' of the commissioner

report i.e.121/2C4, but it is only the right to access the main

road from his property. The learned counsel for the petitioner

also submitted there is no objection in using the way described

item 121/2C4. He has no objection for entering through the

said way, but he should not be claim the ownership over the

said way. The respondent counsel also fairly accepts that he is

only required for right of ingress and egress to his property,

flat No.1 and 3 through the item 121/2C4.

8. The submissions of both counsels were placed on

record.

9. Considering the facts and circumstances of the case,

the order of the execution court do not call for interference. It

requires some clarifications in this matter. Therefore, it is

clarified that, the delivery of the property in respect of flat No.1

and 3 to the respondent/ decree holder, but in respect of the

right to access that property 121/2C4 described in serial No.4 is OP(C) NO. 2918 OF 2024

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only to the decree holder who can use it for ingress and egress

from the property to approach the main road. It is listed in the

R1(b) as the path way/ road as R.S.No.121/2C4.

Accordingly this Original Petition is disposed of.

Sd/-

K. NATARAJAN JUDGE saap OP(C) NO. 2918 OF 2024

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APPENDIX OF OP(C) 2918/2024

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE COMPROMISE AGREEMENT EXECUTED BY THE PETITIONER AND RESPONDENT DATED 10.11.2014.

Exhibit P2 TRUE COPY OF THE EXECUTION PETITION NO.76/2015 IN O.S. 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 18.11.2015. Exhibit P3 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN E.P. 76/2015 SUB COURT, KASARAGOD DATED 29.01.2016.

Exhibit P4 TRUE COPY OF THE APPLICATION E.A. NO.

189/2015 IN EP 76/2015 IN O.S. 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD SEEKING FOR PROCLAMATION OF SALE DATED 18.11.2015.

Exhibit P5 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN E.A. 189/2015 IN E.P. 76/2015ON THE FILE OF THE SUB COURT, KASARAGOD DATED 29.01.2016.

Exhibit P6 TRUE COPY OF THE APPLICATION AND THE SALE DEED FILED BY THE PETITIONER AS E.A. 46/2016 IN E.P. 76/2015 IN O.S. 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 03.03.2016.

Exhibit P7 TRUE COPY OF THE ORDER IN E.A. 189/2015 IN E.P. 76/2015 IN O.S. 54/2012 DATED 31.3.2016 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 31.03.2016.

Exhibit P8 TRUE COPY OF THE REPORT AND 1ST AND 2ND PLAN FILED BY THE ADVOCATE COMMISSIONER IN E.P. NO. 76/2015 IN O.S. NO. 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 13.06.2016.

Exhibit P9 TRUE COPY OF THE APPLICATION E.A. 92/2016 IN E.P. 76/2015 IN O.S. 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 29.06.2016.

Exhibit P10 TRUE COPY OF THE ORDER IN E.A. NO.

ON THE FILE OF THE SUB COURT, KASARAGOD DATED 26.10.2016.

Exhibit P11 TRUE COPY OF THE ORDER IN E.P. 76/2015 IN OP(C) NO. 2918 OF 2024

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O.S. 54/2012 DATED 26.10.2016 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 26.10.2016.

Exhibit P12 TRUE COPY OF THE JUDGMENT IN OP(C) NO.

3256/2016 ON THE FILE OF THIS HON'BLE COURT DATED 07.03.2017.

Exhibit P13 TRUE COPY OF THE ORDER IN R.P. NO.

1118/2017 IN OP(C) NO. 3256/2016 ON THE FILE OF THIS HON'BLE COURT DATED 06.06.2018.

Exhibit P14 TRUE COPY OF EA NO. 2/2020 IN EP 76/2015 ON THE FILE OF THE SUB COURT KASARAGOD DATED 06.03.2020.

Exhibit P15 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN EA 2/2020 IN EP 76/2015ON THE FILE OF THE SUB COURT, KASARAGOD DATED 09.07.2020.

Exhibit P16 TRUE COPY OF E.A. NO. 1/2021 IN EP 76/2015 IN OS 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 26.02.2021. Exhibit P17 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN E.A. NO. 1/2021 IN EP 76/2015 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 02.03.2021.

Exhibit P18 TRUE COPY OF THE MEMO FILED BY THE RESPONDENT HEREIN IN EP 76/2015 IN OS 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 22.03.2021.

Exhibit P19 TRUE COPY OF THE ORDER IN EP 76/2015 IN OS 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 22.03.2021.

Exhibit P20 TRUE COPY OF THE PETITION IN EA 4/2021 IN EP 76/2015 IN OS 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 26.03.2021. Exhibit P21 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN EA 4/2021 IN EP 76/2015 IN OS 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 07.04.2021. Exhibit P22 TRUE COPY OF THE ORDER IN EA 4/2021 IN EP 76/2015 IN OS 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 09.04.2021. Exhibit P23 TRUE COPY OF THE JUDGMENT IN OP(C) 1011/2021 ON THE FILE OF THIS HON'BLE COURT DATED 12.10.2021.

Exhibit P24 TRUE COPY OF THE REPORT OF THE ADVOCATE OP(C) NO. 2918 OF 2024

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COMMISSIONER IN EP 76/2015ON THE FILE OF THE SUB COURT, KASARAGOD DATED 14.03.2022. Exhibit P25 TRUE COPY OF EA 2/2022 IN EP 76/2015 IN 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 25.03.2022.

Exhibit P26 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN EA 2/2022 IN EP 76/2015 IN OS 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 27.05.2022. Exhibit P27 TRUE COPY OF THE MEMO FILED IN EA 2/2022 IN EP 76/2015 IN OS 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD AND THE SKETCH PRODUCED ALONG WITH THE MEMO DATED 16.06.2022.

Exhibit P28 TRUE COPY OF THE ORDER IN EA 2/2022 IN EP 76/2015 IN OS 54/2012 DATED 18.09.2023 ON THE FILE OF THE SUB COURT, KASARAGOD. Exhibit P29 TRUE COPY OF THE ORDER IN EP 76/2015 IN OS 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 18.09.2023.

Exhibit P30 TRUE COPY OF THE ORDER DATED 30.09.2023 IN EA NO. 1/2023 IN EP NO. 76/2015 IN OS 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD.

Exhibit P31 TRUE COPY OF THE ORDER DATED 30.09.2023 IN EA NO. 2/2023 IN EP NO. 76/2015 IN OS 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD.

Exhibit P32 TRUE COPY OF THE ORDER DATED 30.09.2023 IN EP NO. 76/2015 IN OS 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD.

Exhibit P33 TRUE COPY OF THE APPLICATION FILED BY THE

IN OS 54/2012 FOR ADJOURNING THE SALE FOR ONE MONTH DATED 25.10.2023.

Exhibit P34 TRUE COPY OF THE E.A. NO. 3/2023 IN EP 76/2015 IN OS 54/2012 DATED 26.10.2023. Exhibit P35 TRUE COPY OF THE ORDER IN E.A. NO. 3/2023 IN EP NO. 76/2015 IN O.S. NO. 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 26.10.2023.

Exhibit P36 TRUE COPY OF THE ORDER IN E.A. NO. 4/2023 IN EP NO. 76/2015 IN OS NO. 54/20212 ON THE FILE OF THE SUB COURT, KASARGOD DATED 26.10.2023.

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Exhibit P37 TRUE COPY OF THE ORDER IN EP NO. 76/2015 IN OS NO. 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 27.10.2023. Exhibit P38 TRUE COPY OF THE JUDGMENT DATED 18.12.2023 IN OPC NO. 2212/2023 ON THE FILE OF THIS HON'BLE COURT.

Exhibit P39 TRUE COPY OF THE ORDER DATED 15.03.2024 IN IA NO. 1/2024 IN OPC NO. 2212/2023 ON THE FILE OF THIS HON'BLE COURT.

Exhibit P40 TRUE COPY OF THE ORDER DATED 04.04.2024 IN IA NO. 1/2024 IN OPC NO. 2212/2023 ON THE FILE OF THIS HON'BLE COURT.

Exhibit P41 TRUE COPY OF EA NO. 1/2024 IN EP NO.

76/2015 IN O.S. NO. 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 23.08.2024. Exhibit P42 TRUE COPY OF EA NO. 2/2024 IN EA 1/2024 IN EP 76/2015 IN OS NO. 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 07.10.2024.

Exhibit P43 TRUE COPY OF THE COUNTER DATED 22.10.2024 FILED BY THE PETITIONER HEREIN TO EX.P41

IN O.S. NO. 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD.

Exhibit P44 TRUE COPY OF EA NO. 3/2024 IN EA 1/2024 IN EP 76/2015 IN OS NO. 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 03.12.2024.

Exhibit P45 TRUE COPY OF EA NO. 4/2024 IN EA 1/2024 IN EP 76/2015 IN OS NO. 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD DATED 03.12.2024.

Exhibit P46 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 05.12.2024 FILED BY THE PETITIONER HEREIN IN EA NO.3/2024 IN EA NO. 1/2024 IN EP NO. 76/2015 IN O.S. NO. 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD.

Exhibit P47 TRUE COPY OF THE COUNTER DATED 05.12.2024 FILED BY THE PETITIONER HEREIN IN EX.P45 - EA NO.4/2024 IN EA NO. 1/2024 IN EP NO. 76/2015 IN O.S. NO. 54/2012 ON THE FILE OF THE SUB COURT, KASARAGOD.

Exhibit P48 TRUE COPY OF THE ORDER IN EA NO. 3/2024 IN

DATED 09.12.2024 ON THE FILE OF THE SUB OP(C) NO. 2918 OF 2024

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COURT, KASARAGOD.

Exhibit P49 TRUE COPY OF THE ORDER IN EA NO.4/2024 IN EA NO. 1/2024 IN EP NO. 76/2015 IN O.S. NO. 54/2012 DATED 09.12.2024 ON THE FILE OF THE SUB COURT, KASARAGOD.

RESPONDENT EXHIBITS

Exhibit R1(a) THE TRUE COPY OF THE PROCLAMATION FOR SALE DATED 20/09/2023 Exhibit R1(b) TRUE COPY OF THE CERTIFICATE OF SALE OF LAND ISSUED BY THE SUB COURT, KASARAGODE IN E.P. NO. 76/2015 IN O.S.NO. 54/2012 DATED 8.08.2024 //True copy //PA to Judge