Dismissed

Vijaya Babu v. the Federal Bank Limited

Kerala HC3 Jun 2014Ex.FA/9/2014

Case brief

AI extract

What is this about?

The High Court dismissed an execution first appeal filed by the mortgagors. The bank purchased the mortgaged property at auction. The Court held that while appellants retained an encroached portion, they had no claim over the decree-schedule property sold by the second respondent, affirming the lower court order.

What did the court decide?

The appeal is dismissed; there is no order as to costs. The decree-schedule property is deliverable to the bank subject to identification and separation of encroachments.

Vijaya Babu Vs the Federal Bank Limited — Execution and Attachment | Kerala HC (2014)

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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 B.KEMAL PASHA

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TUESDAY, THE 3RD DAY OF JUNE 2014/13TH JYAISHTA, 1936

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Ex.FA.No. 9 of 2014 ()

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EA 75/2005 IN EP 147/1993 IN OS 54/1989 of SUB COURT,KOTTARAKKARA

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APPELLANTS/APPLICANTS:

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VIJAYA BABU, AGED 60 YEARS S/O.BHARGAVAN

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RESIDING AT CHENAVILA VEEDU, KUDAVATTOOR MURI

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VELIYAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM -02.

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KALAVALLY, AGED 58 YEARS,

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W/O.VIJAYA BABU CHENAVILA VEEDU, KUDAVATTOOR MURI, VELIYAM VILLAGE KOTTARAKKARA TALUK, KOLLAM DISTRICT.

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BY ADV. SMT.M.HEMALATHA

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RESPONDENTS/RESPONDENTS:

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THE FEDERAL BANK LIMITED ALUVA, REPRESENTED BY ITS BRANCH MANAGER ODANAVATTOM 691 512.

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SIVA PRASAD, AGED 70 YEARS

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CHEENIVILAYIL VEEDU, KADAKKODU, EDAKKIDOM PO KAREEPRA VILLAGE, KOTTARAKKARA TALUK KOLLAM DISTRICT 691 576.

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VASAANTHAKUMARI, AGED 64 YEARS W/O.SIVAPRASAD, VASANTHAVILASOM VEEDU, CHERIKONAM MURI KANNANALLOOR, THRIKKOVILVETTOM VILLAGE KOLLAM TALUK. 691 576.

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BINU S. PRASAD, AGED 39 YEARS S/O.SIVAPRASAD, VASANTHAVILASOM VEEDU, CHERIKONAM MURI KANNANALLOOR, THRIKKOVILVETTOM VILLAGE KOLLAM TALUK. 691 576.

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DEEPA S. PRASAD, AGED 38 YEARS D/O.SIVAPRASAD, VASANTHAVILASOM VEEDU, CHERIKONAM MURI KANNANALLOOR, THRIKKOVILVETTOM VILLAGE KOLLAM TALUK. 691 576.

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MANU S. PRASAD, AGED 36 YEARS S/O.SIVAPRASAD, VASANTHAVILASOM VEEDU, CHERIKONAM MURI KANNANALLOOR, THRIKKOVILVETTOM VILLAGE KOLLAM TALUK. 691 576.

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R1 BY ADV. SRI.A.ANTONY

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R1 BY ADV.SMT.LEELAMMA ANTONY

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THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.KEMAL PASHA J.

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- - - - -- - - - Ex.F.A. No.9 of 2014

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- - - - -- - - - Dated this the 3^rd day of June, 2014

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JUDGMENT

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The appellants herein are the applicants in E.A. No.75 of 2005 in E.P. No.147 of 1993 in O.S. No.54 of 1989 of the Subordinate Judge's Court, Kottarakkara. The E.A. was filed under Order XXI Rules 97, 98, 99, 100 and 101 read with Sections 47 and 151 of the Code of Civil Procedure 1908.

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The second respondent had obtained financial nursing

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from the first respondent Bank by mortgaging 30 cents of property through equitable mortgage by way of depositing of title deeds. As the loan was not repaid, the first respondent Bank proceeded against the second respondent and the property mortgaged. The suit was decreed and the decree was executed. The decree schedule property of 30 cents is 25 cents coming in Sy.No.139/121 and 5 cents in Sy.No.139/1-27 of the Veliyam village. The

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Ex.F.A. No.9 of 2014 2

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property was sold in auction and the first respondent Bank

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purchased the property. The sale was confirmed on 28.6.1996.

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The delivery was ordered. A series of claim petitions

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were filed. The earlier claim petitions filed were dismissed on which appeals were also preferred. Those appeals were also dismissed. There upon, the present appellants filed the claim petition in question as E.A. No.75 of 2005. The claim of the present appellants is that what was mortgaged by the first respondent Bank was 30 cents of property, which is the southern most portion of a plot of 65cents which belonged to the second respondent. Prior to that he had sold 20 cents of property which is

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lying just north to the said 30 cents of property to the first appellant on the same day. He had sold the remaining 15 cents of property to his mother. According to the appellants, under the guise of the decree, the first respondent bank is proceeding against the property belongs to the first appellant. The first appellant is

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Ex.F.A. No.9 of 2014 3

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claiming title over the 20 cents of property covered by Ext.A1

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alone. The Court below dismissed the claim petition by finding that the properties claimed by the appellants, and the property on

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which the Bank has proceeded, are entirely different.

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Heard the learned counsel for the appellants and the learned counsel for the first respondent. According to the learned counsel for the first respondent, the first respondent Bank has every right to proceed against the property purchased by the first respondent through court auction in execution of the decree. When the first appellant was examined before the Court below as PW1 in the claim petition, he had admitted that the second respondent had 30 cents of property at the southern side of his property and the same was mortgaged with the Bank and that he has no claim or demand over the said 30 cents of property. Therefore, it is an admitted case that the 30 cents of property belongs to the second respondent had been mortgaged to the Bank and the appellants

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Ex.F.A. No.9 of 2014 4

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have no claim over the said 30 cents of property. The said 30 cents of property is the decree schedule property. The said property has been purchased by the first respondent Bank in execution of the decree and therefore, the first respondent is entitled to get that decree schedule property delivered in execution of the decree.

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When the appellants have no claim over the said decree schedule property, there is no meaning in contending that the Bank has no right to obtain delivery of the said property. The decree schedule property has to be ascertained and identified through a proper survey, and the first respondent Bank is entitled to get that property delivered.

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It seems that a Commission was appointed by the court below, and the Commissioner has filed a report and plan. It seems that the court below has accepted the Commissioner's report and the plan, which says that only 5.31 Ares out of the property covered by the Sale Certificate is available for delivery. It seems

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Ex.F.A. No.9 of 2014 5

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that a portion of the property having an extent of 1.01 Ares has been encroached upon by the appellants. Of course, the appellants cannot retain the said portion of 1.01 Ares of property. That portion of the property has also been identified. The said portion can also be delivered to the first respondent Bank along with other extent of 5.31 Ares. of property available for delivery.

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On going through the arguments forwarded by both sides,

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this Court is of the view that there is no room for any apprehension on the part of the appellants that their property would be taken away by the Bank in execution of the decree. It has come out that encroachments are there into the property mortgaged to the Bank, which is the decree schedule property. By retaining such encroachments, one cannot say that the Bank should not proceed against that property for delivery. The said property which is the decree schedule property has to be identified and the delivery of that property alone should be granted to the first respondent Bank.

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Ex.F.A. No.9 of 2014

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When that course is adopted, there cannot be any valid objection

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from the part of the appellants in the matter. Therefore, this Court

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does not find any reason to interfere with the impugned order passed by the court below.

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In the result, this appeal fails and is dismissed. There is no

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order as to costs.

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Sd/-

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B.KEMAL PASHA , JUDGE

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// TRUE COPY //

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PA to Judge

Vijaya Babu v. the Federal Bank Limited

Case brief

What is this about?

What did the court decide?

Vijaya Babu v. the Federal Bank Limited

Case brief

What is this about?

What did the court decide?

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