Remanded

Pradeep K. v. Gopinath & Others

Kerala HC21 Nov 2016Ex.FA/127/2009

Case brief

AI extract

What is this about?

This execution appeal concerns a conflict of title over mortgaged property. The High Court held that the lower court failed to determine if the prior sale descendants a title defect preventing the mortgage. The appeal was remanded for fresh consideration.

What did the court decide?

The impugned order setting aside the execution proceedings is set aside; the Execution Application is remanded for fresh de novo consideration within four months.

Pradeep K. Vs Gopinath & Others — Execution and Attachment | Kerala HC (2016)

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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 V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938

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Ex.FA.No. 127 of 2009 (E)

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AGAINST THE ORDER/JUDGMENT IN E.A.No.265/2007 IN E.A.No.101/2007 IN E.P.No.168/1996 IN OS 516/1992 of PRINCIPAL SUB COURT, PALAKKAD DATED 09-07-2009

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APPELLANT/4^th RESPONDENT/ACUTION PURCHASER:

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PRADEEP.K., S/O.GANGADHARAN, PULASSERY HOUSE, NAGARIPPURAM, PALAKKAD TALUK.

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BY ADVS.SRI.G.SHRIKUMAR

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SMT.KAVERY S.THAMPI SRI.SREEJITH S.NAIR

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RESPONDENTS/PETITIONERS 1-3 & RESPONDENTS 1-3/ DECREE HOLDER & JUDGMENT DEBTORS:

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GOPINATH, (DEAD), S/O GURUSWAMY NADAR, 11/450, RAJU BHAVAN, HARIKKARA STREET, PALAKKAD.

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ASOKAN, S/O.GURUSWAMY NADAR, -DO- -DO-.

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PONNAPPAN, S/O GURUSWAMY NADAR, -DO- -DO-.

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VIJAYA BANK, MANNARKKAD BRANCH, MAIN ROAD, MANNARKKAD.

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KRISHNAN ALIAS KRISHNA RAJ, S/O.NARAYANASWAMY GOWDER, GOWDER MANDIR, HARIKKARA STREET, KOPPAM AMSOM, PALAKKAD.

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GEETHARAJ, W/O.KRISHNAN ALIAS KRISHNA RAJ, -DO-, -DO-.

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R2 & 3 BY ADV. SRI.GEEN T.MATHEW R4 BY ADV. SRI.D.KRISHNA PRASAD R4 BY ADV. SMT.P.L.MARY TREASA R2 & 3 BY ADV. SRI.O.RAMACHANDRAN NAMBIAR R4 BY ADV. SMT.O.K.SANTHA R5-R6 BY ADV. SRI.BABU SHANKAR

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THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.CHITAMBARESH & ANIL K.NARENDRAN, JJ.

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Ex.F.A.No.127 of 2009

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Dated this the 21^st day of November, 2016

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JUDGMENT

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Chitambaresh, J.

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The claim petitioners/respondents 1 to 3 are said to have obtained title to the property (Item No.2 of the decree schedule) under Ext.A1 sale deed dated 27.11.1985. The mortgage by the judgment debtors/respondents 5 and 6 in favour of the decree holder Bank/4^th respondent is much later on 22.10.1988.

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The parties have not let in any oral evidence and the court below has not rendered a finding as to whether the transaction evidenced by Ext.A1 sale deed is a fraudulent transfer or not. Also the mere fact that Ext.A1 sale deed is not reflected in Ext.B1 series encumbrance certificates produced does not mean that the sale by the bank is impeccable. There can be a valid mortgage of the property by the judgment debtors in favour of the bank only if they had clear title to the property as on the date of mortgage. The auction purchaser has to be paid the money back by the bank in case it is found that the mortgage itself was by a person who had no title.

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Ex.F.A.No.127 of 2009

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Interest of justice would be met by remanding E.A.No.265/2007 filed under Order XXI Rules 97 and 99 of the Code of Civil Procedure in E.P.No.168/1996 to the court below for de novo consideration. The court of the Subordinate Judge of Palakkad shall pass a detailed order after affording the parties a reasonable opportunity to adduce evidence. We make it clear that we have not pronounced on the merits of the claim of either parties in the case.

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The impugned order is set aside and the Execution Application is remanded to the court below for fresh consideration in accordance with law within a period of four months from the date of receipt of a copy of this judgment. The parties will appear in the court below on 15.12.2016 for this purpose.

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The appeal is disposed of.

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Sd/-

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V.CHITAMBARESH, JUDGE

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Sd/- ANIL K.NARENDRAN, JUDGE

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skj

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True copy

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P.A to Judge

Pradeep K. v. Gopinath & Others

Case brief

What is this about?

What did the court decide?

Pradeep K. v. Gopinath & Others

Case brief

What is this about?

What did the court decide?

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