Kerala High Court

Pappachan vs Thankappan on 22 September, 2025

Author: Sathish Ninan

Bench: Sathish Ninan

                                                           2025:KER:70230

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

               THE HONOURABLE MR. JUSTICE SATHISH NINAN

                                     &

              THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR

    MONDAY, THE 22ND DAY OF SEPTEMBER 2025 / 31ST BHADRA, 1947

                           RFA NO. 57 OF 2015

        AGAINST THE JUDGMENT DATED 23.07.2014 IN OS NO.148 OF 2009 OF

                       SUB COURT, SULTHANBATHERY

                                  ------

APPELLANT/1ST DEFENDANT:

            PULEECKAN P.M.SUDHAKARAN
            S/O.MADHAVAN, AGED 56 YEARS, PULEECKAL HOUSE,
            POOTHADI VILLAGE, KENICHIRA P.O., SULTHANBATHERY TALUK,
            WAYANAD DISTRICT


            BY ADVS.
            SRI.M.P.ASHOK KUMAR
            SMT.BINDU SREEDHAR
            SRI.P.C.GOPINATH
            SMT.R.S.MANJULA




RESPONDENTS/PLAINTIFFS/2ND DEFENDANT:

    1       THANKAPPAN
            S/O.NARAYANAN, AGED 60 YEARS, THANIKUZHIYIL HOUSE,
            KENICHIRA P.O., PULPALLY ROAD, SULTHANBATHERY TALUK,
            WAYANAD DISTRICT, REPRESENTED BY POWER OF ATTORNEY
            HOLDER SIBI T.T., AGED 40 YEARS, S/O.THANKAPPAN,
            THANIKUZHIYIL HOUSE, KENICHIRA P.O., PULPALLY ROAD,
            S.BATHERY TALUK, WAYANAD DISTRICT - 673 596.
                                                                   2025:KER:70230

RFA NO. 57 OF 2015


    2       SINDHU
            AGED 34 YEARS
            D/O.THANKAPPAN, THANIKUZHIYIL HOUSE, KENICHIRA P.O.,
            PULPALLY ROAD, SULTHANBATHERY TALUK,
            WAYANAD DISTRICT - 673 596.

    3       PAPPACHAN, AGED ABOUT 48 YEARS,
            S/O.SKARIA, PALAKKAPARAMBIL HOUSE,
            MANAVAYAL P.O., SULTHANBATHERY TALUK,
            WAYANAD DISTRICT - 673 579.


            BY ADVS.
            SRI.ALIAS M.CHERIAN
            SMT.CELINE JOSEPH
            SHRI.JINU JOSEPH
            SHRI.N.RAGHUNATH



     THIS   REGULAR   FIRST   APPEAL   HAVING   COME   UP   FOR    HEARING   ON
22.09.2025 A/W FAO 61/2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                                           2025:KER:70230



              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE SATHISH NINAN

                                   &

             THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR

    MONDAY, THE 22ND DAY OF SEPTEMBER 2025 / 31ST BHADRA, 1947

                           FAO NO. 61 OF 2016

        AGAINST THE ORDER DATED 13.11.2015 IN OS NO.148 OF 2009 OF

                     SUB COURT, SULTHANBATHERY

                                 -----

APPELLANT/2ND DEFENDANT:

           PAPPACHAN
           AGED 59 YEARS
           S/O.SKARIA, PALAKKAPARAMBIL HOUSE, MANALVAYAL PO,
           SULATHAN BATHERY TALUK, WAYANAD DISTRICT.


           BY ADV SMT.CELINE JOSEPH


RESPONDENTS/PLAINTIFFS & 1ST DEFENDANT:

    1      THANKAPPAN
           S/O.NARAYANAN, THANIKUZHIYIL HOUSE, KENCHIRA POST,
           PULPALLY ROAD, SULTHAN BATHERY TALUK, WAYANAD DISTRICT,
           REP. BY POWER OF ATTORNEY HOLDER SIBI T.T.
           S/O.THANKAPPAN, THANIKUZHIYIL HOUSE, KENICHIRA POST,
           PULPALLY ROAD, SULTHAN BATHERY TALUK, WAYANAD DISTRICT.

    2      SINDHU
           D/O.THANKAPPAN, THANIKUZHIYIL HOUSE, KECHICHIRA POST,
           PULPALLY ROAD, SULATHAN BATHERY TALUK, WAYANAD
           DISTRICT.
                                                       2025:KER:70230

FAO NO. 61 OF 2016              -2-


    3     PULEECKAL P.M.SUDHAKARAN
          S/O.MADHAVAN, PULEECKAL HOUSE, POOTHADI VILLAGE,
          KENICHIRA POST, SULTHAN BATHERY TALUK, WAYANAD
          DISTRICT.


          BY ADVS.
          SRI.ALIAS M.CHERIAN
          SHRI.N.RAGHUNATH
          SRI.P.C.GOPINATH



     THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON
22.09.2025, ALONG WITH RFA.57/2015, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
                                                             2025:KER:70230
                           SATHISH NINAN &
                       P. KRISHNA KUMAR, JJ.
                = = = = = = = = = = = = = = = = = =
                       R.F.A. No.57 of 2015 &
                        F.A.O. No.61 of 2016
                = = = = = = = = = = = = = = = = = =
             Dated this the 22nd day of September, 2025

                           J U D G M E N T

Sathish Ninan, J.

The suit for money, was decreed by the trial court. RFA

57/2015 is by the first defendant challenging the decree. The

second defendant had remained ex parte. The applications filed by

him seeking to set aside the ex parte decree on condonation of

delay, were dismissed, against which he is in appeal in FAO

61/2016.

2. An extent of 37 cents of property belonged to the first

defendant. As per Ext.A2 sale deed dated 28.09.2000 he conveyed

20 cents therefrom, to the plaintiff. Thereafter, he conveyed 15

cents of property to the second defendant. According to the

plaintiff, though there was a subsisting mortgage over the entire

property, the assignments were made by the first defendant

without disclosing the same. The Bank initiated proceedings under

the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act (for short "the SARFAESI R.F.A. No.57 of 2015 &

2025:KER:70230

Act") against the mortgaged property. Thereupon the plaintiffs

approached this Court in W.P.(C) No.72/2009. Therein the

plaintiffs sought permission to wipe off the liability. As per

Ext.A13 judgment this Court granted permission to the plaintiff.

Accordingly the liability was settled. The remaining two cents of

property out of the 37 cents was also purchased by the

plaintiffs. The suit is filed for realisation of the amount paid

to the redeemed mortgage.

3. The first defendant contended that the subsistence of the

mortgage was not suppressed by him. It was contended that the

payment made by the plaintiffs was on their own volition. The

fact that the plaintiffs had settled the liability with the Bank

was admitted. The plaint claim was denied.

4. The trial court held that the defendants are jointly and

severally liable for the plaint claim.

5. We have heard learned counsel Sri.M.P.Ashok Kumar and

Smt.Celine Joseph on behalf of the respective appellants, and

Sri.Alias M. Cherian on behalf of the respondent.

6. The points that arise for determination in these appeals

are:-

R.F.A. No.57 of 2015 &

2025:KER:70230

(i) Is the plaintiff entitled to realise the mortgage liability that existed over the property, from the first defendant ?

(ii) Is the second defendant liable for any part of the mortgage liability ?

(iii) Is the application to set aside the ex parte decree filed by the second defendant liable to be allowed ?

7. The following aspects are not in dispute :-

(a) 37 cents of property belonged to first defendant.

(b) 20 cents therefrom was conveyed to the plaintiffs.

(c) 15 cents was conveyed to the second defendant.

(d) That there was a subsisting mortgage over the entire property.

(e) The Bank had initiated SARFAESI proceedings.

(f) Plaintiffs filed W.P.(C) No.72/2009 and this Court

permitted the plaintiffs to clear the liability.

(g) The plaintiffs wiped off the liability and

redeemed mortgage.

Ext.A13 judgment of this Court in W.P.(C) No.72/2009 indicates

that the plaintiffs were unaware of the subsisting mortgage over

the property. There is no material to come to a different

finding. As is evident from Ext.A13 judgment in the writ

petition, the liability of the first defendant, who was the third R.F.A. No.57 of 2015 &

2025:KER:70230

respondent in the writ petition, to pay the liability to the

Bank, was not disputed. Further, the liability of the first

defendant to reimburse the plaintiffs was also not disputed. In

Ext.A13 judgment it has been stated thus :-

"The counsel for the third respondent/principal debtor also submits before this Court that the petitioner can very well claim the due amount from the third respondent after satisfying the loan transaction as above."

Thereafter the liability was satisfied by the plaintiffs and the

present suit was for realisation of such amount. Thus, the

contention of the first defendant that he has no liability to

reimburse the plaintiff, is without any basis and was rightly

negatived by the trial court.

8. The first defendant has a contention that under Ext.B1

agreement the plaintiffs had agreed that the sale consideration

for Ext.A2 sale was not as mentioned in Ext.A2 but that a further

amount of Rs.1,50,000/- was payable, which was reserved to be

paid towards the Bank's liability. Therefore the plaintiffs were

liable to pay such amount to the Bank, it is claimed. In the

light of Section 92 of the Evidence Act such a contention is not

open for the first defendant. That apart, there is no evidence to

substantiate the claim.

R.F.A. No.57 of 2015 &

2025:KER:70230

9. With regard to the claim as against the second defendant,

he remained ex parte before the trial court. Seeking to set aside

the ex parte decree, he filed an application along with a

petition to condone the delay of 230 days. The contention was

that he had entrusted the first defendant to prosecute the case,

which the first defendant failed to do effectively. The trial

court noticed that earlier also an ex parte decree was passed in

the suit which was later set aside. According to the second

defendant, he had faith in the first defendant and hence he did

not personally follow it up. If that is his case, then his remedy

is as against the first defendant. There is no justification for

him having not enquired with the counsel with regard to the fate

of the case especially when, even on a prior occasion he had

suffered an ex parte decree which was later set aside. He should

have been vigilant in prosecuting his case especially in the

light of the earlier ex parte decree. There is no proper

explanation for the condonation of delay of 230 days in seeking

to set aside the ex parte decree. We concur with the trial court

in having declined to condone the delay and to set aside the ex

parte decree against him.

R.F.A. No.57 of 2015 &

2025:KER:70230

10. Now coming to the claim as against the second defendant,

the trial court has made him jointly and severally liable for the

entire claim. As was noticed earlier, from out of the total

extent of 37 cents the second defendant had purchased only an

extent of 15 cents. The plaintiffs having redeemed the mortgage

over the entire 37 cents, the liability of the second defendant

is only with regard to the proportionate share of the mortgage

money reckoning with the extent belonging to him. This is in

accordance with Section 82 of the Transfer of Property Act which

provides for rateable contribution by the holders of different

shares of the mortgaged property. The liability of the second

defendant for the proportionate liability is beyond challenge.

11. Though the second defendant had a case that the

plaintiff did not have the obligation to settle the liability

with the Bank and redeem the property, the said argument hardly

has any force. It is undisputed that in enforcement of the

mortgaged liability the Bank had initiated SARFAESI proceedings

and it is on the teeth of such proceedings that the plaintiffs

were compelled to redeem the mortgage over the property. There

could not be any partial redemption of his share alone [See: R.F.A. No.57 of 2015 &

2025:KER:70230

Chhaganlal Keshavlal Mehta v Patel Narandas Haribhai ( AIR 1982 SC 121), Madhavan Nair

v. Ramankutty Menon (AIR 1994 Ker 75)]. The payment made by the plaintiffs

cannot be said to be a voluntary and gratuitous payment. It was

under the threat of sale of the property and enforcement of the

mortgage liability that the plaintiffs were compelled to wipe off

the liability. Further, as was noticed earlier such payment was

with due sanction by this Court as per Ext.A13 judgment. Suffice

to hold that the second defendant is liable for the proportionate

liability over the property.

12. Though as per the impugned judgment a joint and several

decree has been passed as against both the defendants, the

liability of the second defendant can only be for the

proportionate mortgage money, with reference to the extent of

property held by him. The decree and judgment of the trial court

is liable to be modified to the above extent in favour of the

second defendant.

13. Though the learned counsel for the second defendant

would argue that there cannot be a charge over his property for

the liability, the said argument is without any merit. Section 82

of the TP Act specifically attaches the liability over the R.F.A. No.57 of 2015 &

2025:KER:70230

property. Therefore, the portion of the property purchased by him

from the first defendant will be liable for its proportionate

share of the liability.

14. Now coming to the issue of apportionment, we deem it

appropriate to apportion the liability in the following manner:

(a) The value of 20 cents of land has been shown as

₹ 2,00,000/-.

(b) Since the title deed for the remaining 2 cents was

created subsequent to the dispute, it would be appropriate to

adopt the same rate of valuation, i.e., ₹ 10,000/- per cent,

rather than relying on the consideration mentioned in the later

deed.

(c) Accordingly, the value of 22 cents is assessed at

₹ 2,20,000/-.

(d) The value of the building situated therein is

₹ 2,90,000/-.

(e) Thus, the total value of the holding of the first party

(22 cents with building) is ₹ 5,10,000/-.

(f) As regards the other holding (15 cents), though the deed

of sale has not been produced, since the mortgage was created R.F.A. No.57 of 2015 &

2025:KER:70230

over the entirety, the same centage rate of ₹ 10,000/- is to be

adopted. Hence, the value of 15 cents is taken as ₹ 1,50,000/-.

(g) The ratio of valuation, therefore, between the two

holdings is ₹ 5,10,000/- : ₹ 1,50,000/-, i.e., 51 : 15.

(h) Apportioning the total liability of ₹ 9,49,216/- in the

above ratio, the liability of the holder of 22 cents with

building is ₹ 7,33,485/-, and the liability of the holder of 15

cents is ₹ 2,15,731/-. The liability of the latter shall thus be

₹ 2,15,731/-, together with interest.