Allowed

Philip Joseph v. Arunkumar

Kerala HC21 Feb 2013Ex.FA/74/2012

Case brief

AI extract

What is this about?

This is an execution first appeal against an order restoring possession of an auctioned property to claim petitioners who established prior title. The High Court upheld the order directing re-delivery but mandated the lower court to decide within three months on reimbursing the auction purchaser's deposit and improvements.

What did the court decide?

The court below is directed to re-deliver possession to claim petitioners within two weeks and decide on refunds to the auction purchaser and improvement claims within three months.

Philip Joseph Vs Arunkumar — Execution and Attachment | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

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THURSDAY, THE 21ST DAY OF FEBRUARY 2013/2ND PHALGUNA 1934

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Ex.FA.No. 74 of 2012

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[AGAINST THE ORDER IN E.A. NO.769/2011 IN E.P. NO.464/2007 IN O.S.NO.497/2006 OF THE SUB COURT,THIRUVANANTHAPURAM]

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APPELLANT/AUCTION PURCHASER:

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PHILIP JOSEPH, S/O.JOSEPH, PUTHEN CHIRA HOUSE, T.C.28/1515, THAKARAPARAMB, FORT P.O.THIRUVANANTHAPURAM.

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BY ADV. SRI.M.BALAGOVINDAN.

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RESPONDENTS/JUDGMENT DEBTORS 1 AND 2 /DECREEHOLDERS / CLAIM PETITIONERS:

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1. ARUNKUMAR, AGED 22 YEARS, S/O.CHINDUMBARAM, RESIDING AT AYILYAM, VP4/1230, PUTHOORKONAM,MANIKANTESWSARAN P.O. THIRUVANANTHAPURAM- 695 013.

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2. PROF.B.LEELA THANKACHAN , AGED 58 YEARS, W/O.P.THANKACHAN, RESIDING AT FLAT NO. F4, GOPIKA P R S ENCLAVE, NEAR CARMEL SCHOOL THYCAUD P.O, THIRUVANANTHAPURAM- 695 014.

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3. KRISNANKUTTY, AGED 53 YEARS, S/O.KUMARASWAMY CHETTIYAR, RESIDING AT KULENGARA PUTHEN VEEDU, AMBALAMUKKU, PEROORKADA P.O, THIRUVANANTHAPURAM- 695 005.

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4. OMANA, AGED 49 YEARS, W/O.KRISHNANKUTTY, D/O.PONNAMMA, KULENGARA PUTHEN VEEDU, AMBALAMUKKU, PEROORKADA P.O, THIRUVANANTHAPURAM- 695 005.

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R1 BY ADVS. SRI.T.K.VIPINDAS,

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SMT.P.K.PRIYA, SRI.K.V.SREE VINAYAKAN, SRI.K.M.MUHAMMED HUSSAIN, R3 & R4 BY ADV. SRI.D.KISHORE ( FOR CAVEATOR).

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THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Prv.

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EX.F.A. NO.74/2012:

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APPENDIX

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APPELLANT'S ANNEXURE:

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ANNEXURE A: COPY OF THE ORDER DECLARING THE AUCTION SALE DTD. 28/05/2010.

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RESPONDENTS ANNEXURES: NIL.

//TRUE COPY//

P.A. TO JUDGE

Prv.

“C.R”

THOTTATHIL B.RADHAKRISHNAN

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& A.V.RAMAKRISHNA PILLAI, JJ.

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................................................................. Ex.F.A. No. 74 of 2012

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.................................................................... Dated this the 21^st day of February, 2013.

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JUDGMENT

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Thottathil B.Radhakrishnan, J.

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In the course of execution of a decree for recovery of money, an item of immovable property attached before judgment was sold in court auction. The parcel is an apartment in a multistoried building. The auction purchaser, the appellant, deposited the bid amount. The sale was confirmed. As a consequence, delivery was ordered. When delivery proceedings went to be effected, Krishnankutty and Omana filed applications obstructing the delivery. The executing court ordered delivery to be effected leaving Krishnankutty and Omana to raise their objections after dispossession. They, accordingly, filed application under Order XXI Rule 99 and also moved this Court which, ultimately, resulted in a direction to the court below to adjudicate on the application under Order XXI Rule 99. Such an application is essentially one filed after dispossession. The persons whom Krishnankutty and Omana had inducted as tenants were thrown out of possession in the course of execution proceedings.

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Ex.F.A. No. 74 of 2012

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In the adjudication of the application under Order XXI Rule 99, Krishnankutty and Omana, as claim petitioners, established their antecedent title to the attached property on the strength of a sale deed which took effect before the order of attachment before judgment. The court below believed that and acted on it. Thereby, it upheld the title of Krishnankutty and Omana and held that their application under Order XXI Rule 99 is to be allowed, directing that they be put in possession of the property.

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The auction purchaser is in appeal before us. His appeal, in sum and substance, is pointedly focused on the fact that no further order as is deemed fit in the circumstances of the case is passed by the court below as enjoined by Clause (b) of Rule 98(1) of Order XXI, allowing him recovery of amounts as are payable to him as a result of the fact that the sale will stand set aside and possession is being ordered to be restored to Krishnankutty and Omana. Having held that the said item of property could not have been sold in court auction on the basis of the attachment before judgment in the suit from which this appeal arises, it was incumbent upon the court below to have returned to the auction purchaser the amounts that he had

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Ex.F.A. No. 74 of 2012

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expended, including by way of deposit and other amounts suffered as consequence of the sale. Such amount is to be determined and has to be ordered in terms of Order XXI Rule 98 (1)(a).

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We may here notice that the judgment debtor, did not contest the execution proceedings and the decree is an ex parte one. The plaintiff is now stated to be abroad and he has withdrawn, through his Power of Attorney Holder, the amounts deposited by the auction purchaser before the court below. This means that necessary directions will have to be issued to the decree holder as may be found required, for the executing court to satisfy itself of the directions and issue orders in terms of Order XXI Rule 98(1)(a) as a consequence of the impugned order. This is a matter on which the executing court will have to take a decision after hearing the auction purchaser and the decree holder.

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We, therefore, uphold the impugned order, subject to the requirement that the court below will have to decide on the issues referred to above regarding the amounts to be paid off to the auction purchaser. This process cannot be held up for too long. We also leave it open to the auction purchaser to request

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Ex.F.A. No. 74 of 2012

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the court below to decide on any claim by him for value of the improvements, if any, made by him after he took delivery of the apartment.

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As a consequence of the aforesaid, the court below is directed to forthwith re-deliver the possession of the property (the apartment) to the claim petitioners Krishnankutty and Omana following due procedure. Let this take place within a period of two weeks from the date of production of a copy of this judgment. The adjudication, as ordered above, shall be concluded without fail within a period of three months from the date of receipt of a copy of this judgment. The parties are directed to mark appearance before the court below on 12/04/2013. The parties will bear their respective costs.

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The appeal is ordered accordingly.

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sd/-

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(THOTTATHIL B.RADHAKRISHNAN, JUDGE)

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sd/- (A.V.RAMAKRISHNA PILLAI, JUDGE)

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AMV

Philip Joseph v. Arunkumar

Case brief

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Philip Joseph v. Arunkumar

Case brief

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