Petitioner sought to quash a sale notice under O.21 R.66 of CPC in execution proceedings initiated by the second respondent, who had obtained a decree against a co-owner. The Court held the petitioner's right to recover profits creates a charge not defeated by such sale and dismissed the application.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
TUESDAY, THE 20TH DAY OF OCTOBER 2015/28TH ASWINA, 1937
OP(C).No. 4523 of 2013 (O)
PETITIONER(S):
AMRITHAKALA SHETTY AGED 44 YEARS D/O.RAJEEV SHETTY, R/A.NO 3, 10A MAIN ROAD, 15TH CROSS, MALLESHWARAM BANGALORE 55 NOW R/A.NO4 SNN RESIDENCY NARAYANAPPA LAYOUT, SANJAI NAGAR, BANGALORE -94
BY ADV. SRI.P.BABU KUMAR
RESPONDENT(S):
GOPALAKRISHNA BHAT, AGED 57 YEARS S/O.LATE SANKARANA BHAT, HINDU , LANDHOLDER R/A.AREKKADY HOUSE, KATTUKUKKE P O, KASARAGOD TALUK KASARAGOD DIST
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 4523 of 2013 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
EXT.P1:-TRUE PHOTOCOPY OF THE ORDER IN FINAL DECREE APPLICATION IN OS 43/79 OF THE KASARAGOD SUB COURT DATED 4/9/2003
EXT.P2:-TRUE PHOTOCOPY OF THE JUDGMENT AND DECREE IN OS NO 1/2010 OF THE SUB COURT, KASARAGOD DATED 10/6/2011
P3:-TRUE PHOTOCOPY OF THE EP NO 60/2010 IN OSNO 1/10 FILED BEFORE THE SUB COURT , KASARAGOD DATED 6/6/2012
P4:-TRUE PHOTOCOPY OF THE EA NO 22/12 IN EP NO 60/12 IN OS NO.1/2010 FILED BEFORE THE KASARAGOD SUB COURT DATED 22/1/2013
RESPONDENT'S EXHIBITS:
NIL
R.AV
//TRUE COPY//
PA TO JUDGE
ABRAHAM MATHEW, J.
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Dated this the 20th day of October, 2015
J U D G M E N T
Petitioner is the decree holder in O.S.43 of 1979 of
Sub Court, Kasaragod. The suit was for partition. Final decree has been passed. The petitioner has been allotted his share of property. He has been allowed to recover his share of profit from the co-owners. It is stated that the second respondent in this O.P filed a Collusive suit for recovery of money against the co-owner and obtained a decree and in the execution proceedings in that suit the
property of the co-owner is sought to be sold. The petitioner's apprehension is that the object of the coowner is to deprive him of his right to recover his share of profits.
2
O.P.(C).No.4523 of 2013
prayer to quash Ext.P4 notice issued under Order 21 Rule 66 C.P.C in EP.60 of 2012 in O.S. 1 of 2010 filed by the
second respondent cannot be allowed.
In the result, this O.P is dismissed.
sd/-
K. ABRAHAM MATHEW JUDGE
R.AV
//True Copy//
PA to Judge
O.P.(C).No.4523 of 2013 3
1 issue framed by the court
Whether the petitioner's right to recover share of profits as a charge on the property is defeated by the sale in execution of a decree obtained by the second respondent.
1 provisions across 1 enactments
Amrithakala Shetty
Gopakrishna Bhat
K. Abraham Mathew
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
