Petition challenging execution sale of property which petitioner claimed was transferred to her. Court held petitioner must approach executing court under Order 21 Rule 97 CPC. Original petition dismissed as not maintainable.
Original Petition No. 415 of 2011 dismissed as it is not maintainable; directions to pursue remedies before the executing court.
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.T.SANKARAN
WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932
OP(C).No. 415 of 2011(O)
-----------------------OS.29/2003 OF PRL.SUB COURT,KOTTAYAM
PETITIONER :
GRACY XAVIER, 43 YEARS, W/O.XAVIER ZAKARIAH, MAMPRA HOUSE, KUMARA NELLOOR, PERUMPAIKAD VILLAGE, KOTTAYAM.
BY ADV. SRI.V.N.SASIDHARAN
RESPONDENT(S):
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.T.SANKARAN, J.
O.P.(C) No.415 of 2011 O
Dated this the 2nd day of February, 2011
JUDGMENT
The first respondent filed O.S.No.29 of 2003 on the
file of the Principal Sub Court, Kottayam, against the second respondent for realisation of money. A decree was passed on 19.1.2004 for a sum of Rs.19,05,237.50 together with interest. The first respondent filed Execution Petition. It is stated that an item of immovable property was sold in court auction on 7.8.2008 and it was purchased by the decree holder. The decree holder filed E.A.No.181 of 2009 for delivery. The court below passed Exhibit P5 order dated 21st December, 2010 directing to issue delivery warrant for effecting delivery of the property. Exhibit P5 order as well as Exhibit P2 sale certificate are challenged by the petitioner, who is the wife of the judgment debtor.
O.P.(C) No.415 of 2011
2
question was transferred to her by the second respondent as per Exhibit P1 settlement deed dated 17.7.2002. The petitioner was the owner of the property at the time of court auction sale. The judgment debtor had no title to the property and therefore, the sale is invalid. It is submitted that pursuant to Exhibit P2 sale certificate, the decree holder is not entitled to get delivery.
O.P.(C) No.415 of 2011
3
petitioner is to file an application under Rule 97 of Order 21 before the executing court or else, if the petitioner claims that she is the owner of the property, she could also resist the delivery in which case the matter will be reported to the executing court and appropriate proceedings will be initiated. The contentions raised in this Original Petition can be considered only by the executing court in appropriate proceedings. The Original Petition is not maintainable for the aforesaid reliefs. Accordingly, the Original Petition is dismissed.
K.T.SANKARAN
JUDGE
csl
3 issues framed by the court
Whether a wife of a judgment debtor can challenge an execution sale of her property in an original civil petition.
Whether the Original Petition is maintainable for declaring the sale invalid and resisting delivery.
Whether claims regarding title to immovable property should be decided by the executing court via Rule 97 CPC application.
Gracy Xavier
St. Mary Rubbers
Xavier Zakariah
K.T. Sankaran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
