Dismissed

Anil Kumar v. P K Chandrashekharan Nair

Kerala HC29 Aug 2016OP(C)/1701/2016

Case brief

AI extract

What is this about?

A civil revision petition under Article 227 challenging an order allowing sale of property in execution. The court upheld the lower court's decision to proceed with execution against the father's property held as security, noting only a portion would be sold initially.

What did the court decide?

Petition dismissed; execution proceedings against the charged property are allowed to proceed.

Anil Kumar Vs P K Chandrashekharan Nair — 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 K.RAMAKRISHNAN

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MONDAY, THE 29TH DAY OF AUGUST 2016/7TH BHADRA, 1938

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OP(C).No. 1701 of 2016 (O)

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E.P NO 413/2003 IN OS 240/1999 of PRINCIPAL SUB COURT,ERNAKULAM

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PETITIONER(S):

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1. ANIL KUMAR,

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S/O. LATE KUMARAN, PUTHENMARVETTIKKAL HOUSE, IRIMPANAM, THIRUVAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.

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2. SEENA,

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D/O. LATE KUMARAN, PUTHENMARVETTIKKAL HOUSE, IRIMPANAM, THIRUVAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.

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BY ADVS.SRI.GEEN T.MATHEW SMT.NICHU WILLINGTON

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RESPONDENT(S):

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1. P K CHANDRASHEKHARAN NAIR, S/O.V.P. ACHUTHAN NAIR, SIVA SAILAM, PADIVATTOM, EDAPALLY SOUTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.

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2. K.K. SUNIL KUMAR,

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S/O. LATE P.K. KUMARAN, AGED 36 YEARS, PUTHNMARAVETTIKAL, 1/114 A, THIRUVAMKULAM, KANAYANNOOR TALUK, (NOW UNDER GOING IMPRISONMENT IN CENTRAL PRISON, VIYYUR, VIYYUR POST-680010, THRISSUR DISTRICT)

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R1 BY ADVS. SRI.ABRAHAM P.GEORGE SRI.K.VINODKUMAR (707/89) SMT.M.SANTHY SRI.M.P.JAYAN SMT.M.D.BEENA

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29-08 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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OP(C).No. 1701 of 2016 (O) ---------------------------

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APPENDIX

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PETITIONER(S)' EXHIBITS ----------------------P1 TRUE COPY OF THE EXECUTION PRTITION FILED BY THE IST RESPONDENT. P2 TRUE COPY OF THE DECREE IN O.S 240/1999 OF THE SUB COURT. P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS. P4 TRUE COPY OF THE ORDER DATED 06/04/2016 PASSED BY THE SUBORDINATE JUDG'S COURT, ERNAKULAM IN E.P 413/2003 IN O.S 240/1999. P5 TRUE COPY OF THE DRAFT SALE PROCLAMATION SCHEDULE DATED 25/06/2015. RESPONDENT(S)' EXHIBITS NIL -----------------------

/TRUE COPY/

P.S.TO JUDGE

K.V.

K.RAMAKRISHNAN, J.

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O.P. (Civil) No.1701 of 2016

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Dated this the 29^th day of August, 2016

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JUDGMENT

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This petition is filed by the petitioners Challenging Ext.P4 order passed by the Sub Court, Ernakulam in E.P.413/2003 in O.S.240/1999 under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioners are additional judgment debtors 2 and 3 in E.P.413/2003 in O.S.240/1999 on the File of the Sub Court, Ernakulam. The first respondent herein obtained a decree for 5,20,136/- on 24.7.2003. The petitioners were₹ not parties to the suit and they were not aware of the pendency of the civil suit against the second respondent. Only recently the petitioners came to know about the execution petition filed by the decree holder. Ext.P1 is the execution petition filed. When the petitioners came to know about the pendency of the execution petition, they filed E.A.77/2016 in E.P.413/2003 in O.S.240/1999 to implead them as additional judgment debtors and that was allowed and thereafter they filed objections stating that the second respondent is having only fractional interest in the property and there is no schedule attached to the decree while disposing the original suit. The trial court observed that Ext.A2 property owned by the father of the second respondent is charged for the amount due from the second respondent to the decree

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O.P. (Civil) No.1701 of 2016

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holder as per the decree. Apart from the second respondent, petitioners, their sister as well as the second respondent are having fractional interest in the extent of 12 cents of property in Survey No.79/22 (old survey No.14/2003 of Thiruvankulam Village). If at all the property can be proceeded against for the amount due from the second respondent, his fractional share alone can be proceeded with. Though second respondent filed appeal as R.F.A.507/2004 before this court, that was dismissed confirming the order passed by the court below evidenced by Ext.P2. Ext.P3 is the objection filed. The court below after considering both sides dismissed their objections and proceeded to sell the property. This order is being challenged by the petitioners.

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Heard Sri.Geen T.Mathew, counsel appearing for the petitioner and Sri.Abrahan P.George, counsel appearing for the respondent.

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The counsel for the petitioner submitted that, there is no schedule attached to the decree so as to identify the property sought to be sold. Further the second respondent is having only a fractional share in the property as the property belonging to their father Kumaran. So the entire property of Kumaran cannot be sold in execution of the decree passed in favour of the first respondent.

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O.P. (Civil) No.1701 of 2016

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On the other hand, the counsel for the first respondent submitted that two suits were filed, one against the second respondent and other against the father of the petitioners alleging that there were two transactions and both the suits were jointly tried and as per R1 judgment, the trial court found that Kumaran is only a guarantor for the amount and there is no independent transaction between Kumaran and the first respondent and accepting the contentions of late Kumaran, the court below had decreed the suit against the first respondent herein making Ext.A2 property which was given as security by late Kumaran for the amount due from the second respondent. Though an appeal has been preferred against this judgment, that was also ended in dismissal as admitted by the petitioners in their petition itself. So according to the learned counsel, the court below was perfectly justified in rejecting the contentions raised.

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It is an admitted fact that there were some money transactions between the first respondent and the second respondent and the father of the second respondent namely Sri.K.P.Kumaran, who is also the father of the petitioners herein. The first respondent herein filed O.S.No.646/1998 against P.K.Kumaran stating that an amount of ₹2,50,000/- with interest was due and he had given Ext.A2 as security for that transaction. The contention raised by late Kumaran was that,

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O.P. (Civil) No.1701 of 2016

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there was no independent transaction between the first respondent and himself and he had stood as a surety for his son K.K. Sunil Kumar who has got some monetary transaction with the first respondent and he had agreed to stand as a guarantor by giving Ext.A2 property as security for that purpose and as such there is no independent transaction and he is not liable to pay the amount mentioned in the plaint.

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The first respondent also field a suit as O.S.240/1999, the second respondent claiming an amount of 3,28,000/- with interest₹ and costs. He had also contended that there was no transaction and the actual amount borrowed was not so much shown in the plaint. Both these suits are tried together and by R1 common judgment, the Sub Court found that there was no independent transaction between late Kumaran and P.K.Chandrasekharan Nair, who is the first respondent herein. But he had only stood as a surety for the transaction between the first respondent herein and the second respondent and he had given Ext.A2 property as security for the same and that contention of late Kumaran was accepted and the suit against him was dismissed while decreeing the suit against the second respondent, making the property of late Kumaran as charge for the amount. It is true that there is no schedule of property provided, but

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O.P. (Civil) No.1701 of 2016

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when it was specifically mentioned in R1(a) judgment that the property covered by Ext.A2 belonging to Kumaran was given as security for the transaction between the respondents herein and that property was made charge for the amount due as contended by the father of the second respondent and the petitioners herein. This was confirmed by this court as well and the counsel for the first respondent submitted that it was confirmed by the Apex Court as well. So under such circumstances, there is no merit in the submission made by the counsel for the petitioners that entire property of the father cannot be sold for execution of the amount due from the second respondent. So the court below was perfectly justified in rejecting the contentions raised by the petitioners herein.

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Further it is seen from the order that though there is an extent of 12 cents available for sale, the court below had now decided to sell only 4 cents of property out of 12 cents. If the sale proceeds are not sufficient to satisfy the decree, then only further question of proceeding against the balance property arises. The counsel for the first respondent also submitted that, the property now sought to be namely 4 cents will not include the house and as such even a portion of the property was sold, no hardship will be caused to the petitioners.

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So under such circumstances, the court below was perfectly

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O.P. (Civil) No.1701 of 2016

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justified in rejecting the contentions raised by the petitioners and rightly decided to proceed with the execution against the entire property covered by Ext.A2 owned by their father late Kumaran, which was given as security for the transaction between the respondents and exercise discretion to sell only 4 cents of property at present. So there is no merit in the petition and the petition is hereby dismissed.

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Sd/- (K. Ramakrishnan, Judge)

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// True Copy//

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P.A. to Judge

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Anil Kumar v. P K Chandrashekharan Nair

Case brief

What is this about?

What did the court decide?

Anil Kumar v. P K Chandrashekharan Nair

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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