In this execution second appeal, the appellant challenged the delivery of property to a banking decree holder. The single-judge High Court held that there was no substantial question of law and dismissed the appeal in limine, refusing admission.
The Execution Second Appeal is dismissed in limine and admission is refused.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN
TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930
Ex.SA.No.14 of 2008 ( )
--------------------------AS.48/2002 of ADDITIONAL DISTRICT COURT (ADHOC), FAST TRACK COURT NO.1, THRISSUR. OS.232/1978 of PRL.SUB COURT,IRINJALAKUDA (EA 362/1982) ....................
APPELLANT/APPELLANT/PETITIONER --------------------------------------------
JOSE, S/O.THALIYATH ANTHONY, MELADOOR DESAM, ALATHUR VILLAGE, MUKUNDAPURAM TALUK.
BY ADV. SRI.JOSE DAVIS
RESPONDENTS/RESPONDENTS/PLAINTIFF AND RESPONDENTS: ---------------------------------------------------------------------------
1. UNION BANK OF INDIA, MAIN ROAD, MALA, THRISSUR.
2. ELIYA, W/O.THALIYATH ANTHONY, MELADOOR DESOM, ALATHUR VILLAGE, MUKUNDAPURAM TALUK
3. MARY, D/O.THALIYATH ANTHONY, MELADOOR DESOM, ALATHUR VILLAGE, MUKUNDAPURAM TALUK
4. VARGHESE, S/O.THALIYATH ANTHONY MELADOOR DESAM, ALATHUR VILLAGE, MUKUNDAPURAM TALUK.
5. POULOSE, S/O.THALIYATH ANTHONY MELADOOR DESAM, ALATHUR VILLAGE, MUKUNDAPURAM TALUK.
6. ANTU, S/O.THALIYATH ANTHONY MELADOOR DESAM, ALATHUR VILLAGE MUKUNDAPURAM TALUK.
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Ex.SA.No.14 of 2008
7. DEVIS, S/O.THALIYATH ANTHONY, MELADOOR DESAM, ALATHUR VILLAGE, MUKUNDAPURAM TALUK.
8. WILSON, S/O.THALIYATH ANTHONY MELADOOR DESAM, ALATHUR VILLAGE, MUKUNDAPURAM TALUK.
9. OMANA, D/O.THALIYATH ANTHONY, MELADOOR DESAM, ALATHUR VILLAGE MUKUNDAPURAM TALUK.
10. ROSILY, D/O.THALIYATH ANTHONY, DO. DO.
11. LALU, S/O.THALIYATH ANTHONY,
THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.P.BALACHANDRAN, J.
Ex. S. A. No.14 of 2008
Dated this the 2nd day of September, 2008
JUDGMENT
The appellant is the petitioner in
E.A.362/82 filed by him under Order XXI Rule 99 C.P.C for redelivery of the scheduled property delivered over to the first respondent/bank in execution of the decree in O.S.232/78 obtained by it against the second respondent Anthony/father of the petitioner.
The second respondent died and his other legal representatives are impleaded as respondents 3 to 12 in E.A.362/82.
claim to the property which was purchased by the decree holder/first respondent/bank in execution of the decree in O.S.232/78, the decree being one charged on the scheduled property, the property having been equitably
Ex. S. A. No.14 of 2008
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mortgaged by the second respondent in favour
of the first respondent and brought to sale in
execution of the money decree against the second respondent. According to the appellant, it is property obtained by him under Ext.A3 assignment in his favour dt.15/07/1977 from his paternal grandfather/Thomas who was
holding leasehold right over the property; that himself and his father/the second respondent were not on good terms; that there were litigations also between them; that
O.S.704/78 of the Munsiff's Court,
Irinjalakkuda is suit filed by him against his father for a decree of permanent prohibitory injunction and that was decreed vide Ext.A6 decree and that therefore, dispossession
effected in execution of the decree in
O.S.232/78 was illegal and wrongful and that the property has to be delivered over back to
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Ex. S. A. No.14 of 2008
his possession.
the petition filed by the appellant dismissed the petition by a considered order considering the evidence adduced at trial which consisted of only documentary evidence Exts.A1 to A7 and
Ext.B1. The dismissal of E.A.362/82 was assailed before the first appellate court in A.S.48/02. From the first appellate court a commission was issued to inspect the property and to submit a report and plan thereof. Exts.C1 and C2 are the reports submitted by the Commissioner and Ext.C3 is the plan got prepared from the Village Officer, Alathur. After hearing both sides, the said appeal was dismissed by the first appellate court confirming the order of the execution court and hence, this R.S.A by the petitioner in E.A.362/82 in O.S.232/78.
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Ex. S. A. No.14 of 2008
by the learned counsel for the appellant that the appellant obtained the property under Ext.A3 assignment deed from his paternal grandfather; that there is difference in boundary described in Ext.A3 and in Ext.B1; that the properties are different and that the property in his possession should not have been delivered over to the first respondent as if it is property covered by Ext.B1 purchase certificate.
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Ex. S. A. No.14 of 2008
advanced on the basis of Ext.A3 is also 69
cents comprised in Sy. No.1411/2 of Alathur village in Mukundapuram Thaluk in Thrissur
district. The counsel for the appellant has placed before me for perusal survey plan of property comprised in Sy.1411/1 1411/2 and 1412/1 as also Sy. No.1409/2 of Alathur
village which is photostat copy of Survey plan prepared by Village Officer, Alathur marked as
Ext.A3 before the first appellate court. It shows that the total extent of property comprised in Sy. No.1411/2 of Alathur village is only 69 cents. The appellant has no case
that the property delivered over to the first respondent is not property comprised in Sy. No.1411/2. He has not adduced any evidence to establish that Ext.B1 purchase certificate is not in relation to the property comprised in Sy. No.1411/2. Apart from the documentary
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Ex. S. A. No.14 of 2008
evidence, no other evidence was adduced before the execution court to substantiate the contentions so advanced. It is also worthy to note that Ext.A3 assignment deed is executed in favour of the appellant by his paternal grandfather and that was on 15/07/1977. For more than seven years after the amendment of Land Reforms Act, the executant under Ext.A3 had not applied for purchase of jenm right over the property covered by Ext.A3. Further Ext.A3 is executed almost after two years of the father of the appellant namely the second respondent effecting purchase under Ext.B1 purchase certificate. The purchase certificate issued in favour of the second respondent is not assailed either by the appellant who obtains Ext.A3 after two years of Ext.B1 or by the executant of Ext.A3 who is the father of the second respondent. In the circumstances,
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Ex. S. A. No.14 of 2008
it can only be considered that after the second respondent obtaining Ext.B1 certificate of purchase, Ext.A3 assignment was being obtained by the appellant from his paternal grandfather so as to advance rival claim against his own father who has obtained Ext.B1 purchase certificate and that is what is evidenced by production of Exts.A1, A4, A5 and A6 if at all those records in O.S.704/78 does not evidence a collusive suit and a shadow fight between the appellant and his father/the second respondent. What has been delivered over to the first respondent/decree holder is only the property of 69 cents comprised in Sy. No.1411/2 covered by Ext.B1 purchase certificate dt.25/08/1975 which property was equitably mortgaged to the first respondent/ bank and purchased by them finally in court sale in execution of the decree in O.S.232/78.
Ex. S. A. No.14 of 2008 -8-
In the circumstances, there is absolutely no merit in this Execution Second Appeal and there is no question of law and much less any substantial question of law arising for consideration by this Court in this Execution Second Appeal. This Execution Second Appeal is hence, dismissed in limine refusing admission.
K.P.BALACHANDRAN, JUDGE
kns/-
2 issues framed by the court
Whether the Execution Second Appeal is maintainable and requires admission for hearing.
Whether the appellant successfully demonstrated that the property delivered to the first respondent differed from the property covered by the assignment deed.
1 provisions across 1 enactments
JOSE, S/O.THALIYATH ANTHONY
UNION BANK OF INDIA
ELIYA, W/O.THALIYATH ANTHONY
MARY, D/O.THALIYATH ANTHONY
VARGHESE, S/O.THALIYATH ANTHONY MELADOOR DESAM
POULOSE, S/O.THALIYATH ANTHONY MELADOOR DESAM
K.P.BALACHANDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
