Dismissed

T.Sahayadas v. Sicilet Mebal

Kerala HC3 Oct 2018OP(C)/3554/2013

Case brief

AI extract

What is this about?

In an original civil petition filed by a decree-holder challenging an executing court's order directing redemption of mortgaged property, the High Court of Kerala dismissed the petition, holding that the executing court had not gone behind the decree or altered it.

What did the court decide?

The original petition filed by the petitioner-decree holder challenging the execution order was dismissed with no order as to costs.

T.Sahayadas Vs Sicilet Mebal — Execution and Attachment | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE ASHOK MENON

¶4

WEDNESDAY,THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940

¶5

OP(C).No. 3554 of 2013

¶6

AGAINST THE ORDER/JUDGMENT IN OS 546/1997 of II ADDL.M.C.,NEYYATTINKARA DATED 13-08-2013

¶7

PETITIONER/S:

¶8

T.SAHAYADAS S/O.THOMSON, VARAVUPOTTA PUTHAN BUNGLOW, UDIYANKULANGARA DESOM, CHENKAL VILLAGE, TRIVANDRUM DISTRICT.

¶9

BY ADVS. SRI.R.S.KALKURA SMT.M.K.LEELAKUMARI SMT.R.BINDU SRI.HARISH GOPINATH SRI.JOHNSON JOSE PANJIKKARAN SRI.KURIAN JOSHY SRI.M.S.KALESH SRI.SANIL KUNJACHAN

¶10

RESPONDENT/S:

¶11

SICILET MEBAL D/O.SUNDARADAS, KOTTAYMVILA VEEDU, VELLARADA DESOM, VELLARADA VILLAGE, TRIVENDRUM DISRICT- 695 505.

¶12

BY ADVS. SRI.V.G.ARUN (K/795/2004) SRI.ANOOP BHASKAR

¶13

OTHER PRESENT:

¶14

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18.07.2018, THE COURT ON 03.10.2018 PASSED THE FOLLOWING:

OP(C) 3554/2013

JUDGMENT

The petitioner, the plaintiff-decree holder in O.S.No.546/2017 on the file of the II Additional

¶19

Munsiff's Court, Neyyattinkara, is aggrieved by Ext.P7 order in E.P.No.310/2011 directing delivery of the property in accordance with Ext.C1(b) plan.

¶20

The petitioner is the owner of the property,

¶21

which was purchased by him along with some items of property in the year 1966. Item No.2 in the sale deed has an extent of 76 cents. Some property included in the

¶22

sale deed was in the possession of one Nesy Sundari, and 20 cents of property was in the possession of Markose Nadar as per mortgage deed executed in the year 1965. The sale deed authorises the petitioner to redeem the mortgaged property. Markose Nadar sold his mortgage right in the property to one Rajayyan Nadar in the year 1966. Consequent to the demise of Rajayyan Nadar, the

¶23

property devolved upon the defendant, being his only daughter and legal heir. The petitioner filed a suit for redemption of the mortgage. Contentions were raised by

¶24

OP(C) 3554/2013

¶25

¶26

the defendant regarding the legality of the mortgage as

¶27

well as the sale in favour of the plaintiff. All these objections were brushed aside and the suit was decreed

¶28

by the learned Munsiff vide Ext.P1 judgment, directing

¶29

the plaintiff to deposit a sum of Rs.3,375/-, which includes the mortgaged money and value of the

¶30

improvements within a period of six months from the date of judgment. The defendant was directed to re-convey or re-transfer the plaint schedule property to the plaintiff free from mortgage and all other encumbrances created over the property. The defendant challenged the decree

¶31

before the Sub Court, Neyyattinkara by filing

¶32

A.S.No.91/2000. But subsequently, the appeal was

¶33

dismissed vide Ext.P2 judgment as pressed. Hence, Ext.P1 judgment was sought to be executed by the plaintiff by filing an Execution Petition. An Advocate Commissioner

¶34

was deputed from the trial court to identify the plaint

¶35

schedule properties and the property covered by the mortgage deed No.1589/65. The Commissioner identified

¶36

the property in Ext.C1(b) plan as 'A7A2A3A6'. The

¶37

executing court vide Ext.P7 order considered and

¶38

overruled the objection of the judgment debtor regarding

¶39

OP(C) 3554/2013

¶40

¶41

the delay in depositing the mortgage money and filing the execution petition, and directed the plot identified as 'A7A2A3A6' be re-conveyed to the plaintiff.

¶42

The plaintiff is aggrieved by this order and has filed this O.P. stating that the order is illegal, improper, perverse and the executing court cannot be go

¶43

behind the decree and that there is no ambiguity regarding the identity of the property and prays that the impugned order may be set aside and direct redemption of the plaint schedule property.

¶44

Heard both sides.

¶45

The Commissioner was deputed for identifying the property allegedly mortgaged to the respondent/ defendant

¶46

as per Ext.A2 mortgage deed in favour of the defendant's predecessors-in-interest. The Commissioner has, as per Ext.C1(b) plan (produced here along with Ext.P3 herein), identified the property covered by the mortgage as 20

¶47

cents coming with the markings 'A7A2A3A6'. The

¶48

petitioner has no case that he had filed any objection regarding the identity of the plaint schedule property by

¶49

the Commissioner. The suit was decreed in his favour in Ext.P1 judgment as follows:-

¶50

OP(C) 3554/2013

¶51

¶52

“In Ext.C1(b) commissioner identified the plaint schedule property (which is Ext.A3 property) as plot A7, A2, A3, A6. From a comparison of Ext.C1(a) and C1(b) it will become clear that plaint schedule property is also a part of item No.2 of Ext.A1. Thus from the commissioner's report and plant it is evident that plaint schedule property is a part of Ext.A1 property. As per Ext.A1 plaintiff is authorised to redeem Ext.A2 mortgage.”

¶53

The decretal portion directs the defendants to

¶54

re-convey or re-transfer the plaint schedule property to

¶55

the plaintiff free from mortgage and all other

¶56

encumbrances created by him or persons claiming under him.

¶57

What is sought to be redeemed in the suit is the property mortgaged as per Ext.A2, which was mortgaged even prior to the sale in favour of the plaintiff as per Ext.A1. What the plaintiff got assigned as per Ext.A1 is

¶58

the right of redeeming the property covered by Ext.A2. Hence, the plaintiff in a redemption suit can redeem only that property, which is covered by the mortgage deed and nothing more. The mortgaged property described in Ext.A2 has been identified and marked in the Commissioner's

¶59

plan, Ext.C1(b). There is absolutely no ambiguity in this regard.

¶60

OP(C) 3554/2013

¶61

¶62

The learned Counsel has relied on certain decisions, which would state that the execution court cannot go behind the decree, nor sit in appeal. In the instant case, the execution court has not gone behind the decree nor has it made any amendment to the decree. Hence, I find no merits, whatsoever, in the petition to interfere with the impugned order at Ext.P7. Therefore, the Original Petition is dismissed. No order as to costs.

Sd/-

ASHOK MENON

JUDGE

OP(C) 3554/2013

APPENDIX

PETITIONER'S/S EXHIBITS:

¶70

EXHIBIT P1 COPY OF THE JUDGMENT DATED 27.9.1999 IN OS NO.546 OF 1997 ON THE FILE OF THE 2ND ADDITIONAL MUNSIFFS COURT, NEYYATTINKARA.

¶71

EXHIBIT P2 COPY OF THE JUDGMENT DATED 25.10.2005 IN AS 91 OF 2000 ON THE FILE OF THE SUBORDINATE JUDGES COURT, NEYYATTINKARA. EXHIBIT P3 COPY OF THE COMMISSION REPORT DATED 20.3.1999 ALONG WITH THE PLAN.

¶72

EXHIBIT P4 COPY OF THE EP 310 OF 2011 IN OS 546 OF 1997 ON THE FILE OF THE 2ND ADDITIONAL MUNSIFFS COURT, NEYYATTINKARA.

¶73

EXHIBIT P5 COPY OF THE DECREE IN OS 546 OF 1997 DATED 27.9.99 ON THE FILE OF THE 2ND ADDITIONAL MUNSIFFS COURT, NEYYATTINKARA. EXHIBIT P6 COPY OF THE OBJECTION DATED 28.1.2013. EXHIBIT P7 COPY OF THE ORDER DATED 13.8.13 IN EP 310 OF 2011 IN OS 546 OF 1997 ON THE FILE OF THE 2ND ADDITIONAL MUNSIFFS COURT, NEYYATTINKARA.

T.Sahayadas v. Sicilet Mebal

Case brief

What is this about?

What did the court decide?

T.Sahayadas v. Sicilet Mebal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Viswanathan Vs Divisional Forest Officer

Francis Mathew Vs K.M.Mathew

Moosa Vs Changarncholoa Unneen

Punnakkal Suresh Vs Saraswathi

Stephenson Vs Bosco K.J. and Others

Kuriakose Vs Anto