Kerala High Court
Hussain vs Ummar on 14 October, 2025
RFA (Misc.)463/2017
1
2025:KER:76241
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 14TH DAY OF OCTOBER 2025 / 22ND ASWINA, 1947
RFA (MISC.) NO.463 OF 2017
OS NO.240 OF 2012 OF SUB COURT, OTTAPPALAM
APPELLANT/1ST RESPONDENT/PLAINTIFF
HUSSAIN, AGED 48 YEARS
S/O. AMBALATHINKAL MAMMUTTY, KALPAKANCHERY AMSOM
DESOM, TIRUR TALUK, MALAPPURAM DISTRICT
REPRESENTED BY THE POWER OF ATTORNEY HOLDER
KUNNEKKAT IBRAHIMKUTTY, S/O. ALAVI, 44 YEARS,
KALPAKANCHERY AMSOM DESOM, TIRUR TALUK,
MALAPPURAM DIST.
BY ADVS.
SRI.R.SREEHARI
SRI.SACHIN VYAS
RESPONDENTS/APPLICANT & 2ND RESPONDENT/3RD
PARTY/DEFENDANT
1 UMMAR, S/O. CHENGANAKATTIL MUHAMMED HAJI, 43
YEARS, KURUMBATHUR AMSOM DESOM AND POST, TIRUR
TALUK, MALAPPURAM DISTRICT 676301.
2 HUSSAIN, S/O. PUTHULLI MUHAMMED @ KUNJHAPPA,
NADUVATTOM AMSOM, KEEZHMURI DESOM, POST
NADUVATTOM, PATTAMBI TALUK 679308.
SRI.M.MUHAMMED SHAFI (CAVEATOR)
THIS REGULAR FIRST APPEAL (MISCELLANEOUS) HAVING
BEEN FINALLY HEARD ON 8.10.2025, THE COURT ON
14.10.2025 DELIVERED THE FOLLOWING:
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2025:KER:76241
JUDGMENT
Dated : 14th October, 2025
This is an appeal filed by the 1st respondent in I.A.Nos.2083/2014 and
2873/2014 in OS 240/2012 on the file of the Sub Court, Ottappalam against the
order allowing the above IAs. The appellant was the plaintiff in the above suit
and the petitioner in the above IAs was a third party claiming interest in the
property scheduled in those IAs. (For the purpose of convenience, the appellant
is hereafter referred to as the plaintiff and the petitioner in the above IAs who is
the 1st respondent in this appeal, is hereafter referred to as the claim petitioner.)
2. The plaintiff filed the above suit for money against the defendant
who is the 2nd respondent in this appeal. An extent of 13.94 cents of property
comprised in Re-Survey No.264/4 scheduled in the claim petition was attached
before judgment on 17.7.2012 as per order in IA 2071/2012. Aggrieved by the
order of attachment, the claim petitioner filed I.A.Nos.2083/2014 and
2873/2014 praying for lifting the order of attachment and for declaration that
the said property belongs to him. According to the claim petitioner, he
purchased the scheduled property as per Ext.A1 assignment deed dated
16.6.2012, more than one month before the date of attachment and ever since
thereafter he has been in possession and enjoyment of the said property. He
purchased the property after verifying the encumbrance certificate and getting
him convinced that the said property is free from all encumbrances. Therefore,
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according to him, the scheduled property is not liable to be attached for
realising the amount claimed by the plaintiff in the suit.
3. The plaintiff filed counter affidavit contending that the defendant
borrowed a sum of Rs.13,00,000/- from him on 27.2.2012 and thereafter
executed Ext.A1 sale deed in favour of the claim petitioner, who is a friend of
the defendant, without any consideration, only to defeat the claim of the
plaintiff. Therefore, the plaintiff prayed for dismissing the above IAs. However,
the trial court on the basis of Exts.A1 to A5 documents produced by the claim
petitioner allowed those IAs.
4. Now the point that arise for consideration is the following :-
Whether the order dated 28.3.2017 passed by the trial court allowing
IAs 2083/2014 and 2873/2014 is liable to be interfered with, in the light
of the grounds raised in the appeal ?
5. Heard Sri.R.Sreehari, the learned counsel for the appellants. At
the time of arguments there was no representation for the claim
petitioner/respondent.
6. The point:- Admittedly the property scheduled in the IAs
originally belonged to the defendant in the suit. The plaintiff filed the suit for
money alleging that on 27.2.2012, the defendant borrowed a sum of
Rs.13,00,000/- from him for his business. From Ext.A1 sale deed it can be seen
that on 16.6.2012, the claim petitioner purchased the said property from the
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defendant for a consideration of Rs.8,85,000/-. Ext.A2 is the encumbrance
certificate dated 11.6.2014. Ext.A3 is the basic tax receipt issued from Koppam
village office in the name of the claim petitioner. Ext.A4 is the ownership
certificate issued by the Secretary, Koppam grama panchayat in favour of the
claim petitioner. Ext.A5 is the encumbrance certificate issued from SRO,
Vilayur. The above encumbrance certificate does not show any encumbrance
over the scheduled property.
7. The plaintiff has not adduced any evidence to substantiate the
contention that Ext.A1 was executed with the intention to defeat the decree that
may be passed in his favour. There is no evidence to show any collusion
between the claim petitioner and the defendant or to suspect the bona fides of
the claim petitioner. There is also no evidence to show that the claim petitioner
is in any way related to the defendant. On a perusal of Exts.A1 to A5 it can be
seen that the claim petitioner purchased the scheduled property from the
defendant for a consideration of Rs.8,85,000/- on 16.6.2012, while the said
property was attached by the trial court as per order in I.A.2071/2012 only on
17.7.2012, more than one month after the execution of Ext.A1 sale deed.
8. Though the leaned counsel for the appellant has relied upon the
decision of a Division Bench of this Court in Abdul Jalal v. Mariya
Financiers, 2002 (2) KLT 107, the said decision relates to the rights of an
attached creditor over the contractual obligation arising from an antecedent
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agreement for sale of the attached property and as such, the same has no
relevance in the facts of the present case.
9. In the absence of any evidence to the contrary, it is to be held that
the claim petitioner purchased the scheduled property from the defendant for
valid consideration after ensuring that there was no encumbrance over it.
Therefore, his claim that he is a bonafide purchaser for valid consideration can
only be accepted. In the above circumstance, the trial court was justified in
allowing the above IAs filed by the claim petitioner. I do not find any
irregularity or illegality in the impugned order passed by the trial court so as to
call for any interference. Point answered accordingly.
In the result, this appeal stands dismissed. Considering the facts, I order
no costs.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/9.10.25
