Partly allowed

Paul Alukkas Developers Pvt.Ltd, v. Chellappan Ajayakumar

Kerala HC13 Aug 2019OP(C)/1675/2019

Case brief

AI extract

What is this about?

An execution first appeal petitioned by a company and its managing director to lift a land attachment. The court accepted an affidavit offering specific apartments free of encumbrances as security for the decree and modified the attachment accordingly.

What did the court decide?

The attachment was modified to be confined to Flat Nos.'B' and 'C' on the first floor and the proportionate undivided share, which are free of encumbrances.

Paul Alukkas Developers Pvt.Ltd, Vs Chellappan… — Execution and Attachment | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE SATHISH NINAN

¶4

TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941

¶5

Ex.FA.No.27 OF 2019

¶6

AGAINST THE ORDER DT. 03.06.19 IN EA 171/19 IN EP 271/17 IN OS 1662/2015 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM

¶7

APPELLANT/CLAIM PETITIONER/RESPONDENT:

¶8

PAUL ALUKKA,

¶9

AGED 62 YEARS,

¶10

S/O. A.J VARGHESE, ALUKKA HOUSE, CHILAVANNOOR DESOM, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

¶11

BY ADV. SRI.ANSU VARGHESE

¶12

RESPONDENTS/DECREE HOLDERS/JUDGMENT DEBTORS:

¶13

1 CHELLAPPAN AJAYAKUMAR,

¶14

S/O. LATE JAYADEVAN, VILLA NO.7, STADIA PARK, BEHIND STADIUM, KALOOR P.O, KOCHI 25.

¶15

2 JOHNKUTTY K.L.,

¶16

S/O. IDICHANDY, VILLA NO.5, STADIA PARK, BEHIND STADIUM, KALOOR P.O, KOCHI 25.

¶17

3 PAUL ALUKKAS DEVELOPERS PVT. LTD., 1ST FLOOR, PENTA SQUARE, OPPOSITE TO KAVITHA THEATER, M.G ROAD, ERNAKULAM, KOCHI 682 035.

¶18

THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13.08.2019, ALONG WITH OP(C).1675/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶19

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶20

PRESENT

¶21

THE HONOURABLE MR. JUSTICE SATHISH NINAN

¶22

TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941

¶23

OP(C).No.1675 OF 2019

¶24

AGAINST THE ORDER DT.03.06.19 IN EA 133/19 IN EP 271/17 IN OS 1662/2015 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM

¶25

PETITIONER/PETITIONER/JUDGMENT DEBTOR:

¶26

PAUL ALUKKAS DEVELOPERS PVT.LTD., 1ST FLOOR, PENTA SQUARE, OPPOSITE KAVITHA THEATRE, M. G. ROAD, ERNAKULAM, KOCHI - 682 035, REPRESENTED BY MANAGING DIRECTOR PAUL ALUKKAS.

¶27

BY ADV. SRI.G.SREEKUMAR (CHELUR)

¶28

RESPONDENTS/RESPONDENTS/DECREE HOLDERS:

¶29

1 CHELLAPPAN AJAYAKUMAR,

¶30

S/O. LATE JAYADEVAN, VILLA NO.7, STADIA PARK, BEHIND STADIUM, KALOOR P.O., KOCHI - 25.

¶31

2 JOHNKUTTY. K. L., S/O. IDICHANDY, VILLA NO.5, STADIA PARK, BEHIND STADIUM, KALOOR P.O., KOCHI - 25.

¶32

BY ADV. SRI.DINESH MATHEW J.MURICKEN

¶33

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13.08.2019, ALONG WITH Ex.FA.27/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶34

SATHISH NINAN, J.

¶35

= = = = = = = = = = = = = = = = = = Ex. F. A. No.27 of 2019 & O. P. (Civil) No.1675 of 2019

¶36

= = = = = = = = = = = = = = = = = = Dated this the 13^th day of August, 2019

¶37

J U D G M E N T

¶38

The attachment over 60 cents of property in Survey No.224/1 of Poonithura village was sought to be lifted, which was declined by the execution court. It is not in dispute that for execution of the decree, which I notice to be a compromise decree, the entire property is not necessary to be proceeded against.

¶39

The Managing Director of the Developer Company, who claims to be the owner of the property has filed affidavit dated 06.08.19 before this Court, offering flat Nos.'B' and 'C' on the first floor of the apartment building and specifically shown in the plans produced along with I.A.3/19, along with its proportionate undivided share over the property, to secure the decree. He has filed an additional affidavit dated 09.08.19 swearing to that the said apartments with the proportionate

¶40

Ex. F. A. No.27 of 2019 & O. P. (Civil) No.1675 of 2019

¶41

:- 2 :-

¶42

undivided share, the details of which has been specified therein, is completely free of any encumbrance and that he has not entered into any agreement for sale in respect of the same with any person. The decree holder shall be entitled to proceed against the same.

¶43

In view of the above, the attachment in E.P.271/17 will stand modified and confined to the above. The court below shall pass further orders in terms of the above, modifying the order of attachment.

¶44

The Ex.F.A. and the Original Petition are disposed of as above.

¶45

Sd/-

¶46

SATHISH NINAN JUDGE

kns/-

//True Copy//

P.S. to Judge

APPENDIX OF OP(C) 1675/2019

¶51

PETITIONER'S/S EXHIBITS:

¶52

EXHIBIT P1 THE TRUE COPY OF THE ORDER OF DECREE IN O.S.NO.1662/2015 ALONG WITH THE COMPROMISE AGREEMENT ENTERED BETWEEN THE PARTIES. EXHIBIT P2 THE TRUE COPY OF THE ATTACHMENT SCHEDULE BEARING NO.E.A.324/2018 IN E.P.NO.271/2017 IN O.S. NO.1662/2015. EXHIBIT P3 THE TRUE COPY OF THE ORDER DATED 26.07.2018 OF THE LEARNED MUNSIFF COURT IN.E.A.324/2018 IN E.P.NO.271/2017 IN O.S. NO.1662/2015. EXHIBIT P4 THE TRUE COPY OF THE FD RECEIPT DATED 18.01.2019 ISSUED BY THE STATE BANK OF INDIA, M.G. ROAD, ERNAKULAM. EXHIBIT P5 THE TRUE COPY OF THE ORDER DATED 07.03.2019 IN E.A. 38/2019 IN EP 271/2017 IN O.S.1662/2015. EXHIBIT P6 THE TRUE COPY OF THE PETITION IN E.A. 133/2019 FILED BY THE PETITIONER. EXHIBIT P7 THE TRUE COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT IN IN E.A.133/2019. EXHIBIT P8 THE TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE PETITIONER IN E.A.133/2019. EXHIBIT P9 THE TRUE COPY OF THE ORDER IN E.A. 133/2019 DATED 03.06.2019. EXHIBIT P10 TRUE COPY OF THE PROPERTY TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX FOR THE FLAT BEARING NO.68/3205A IN THE PETITIONER'S NME FOR THE YEAR 2018-19 ISSUED BY THE COCHIN MUNICIPAL CORPORATION DATED 21/12/2018.

¶53

EXHIBIT P11 TRUE COPY OF THE OCCUPANCY CERTIFICATE ISSUED BY THE COCHIN MUNICIPAL CORPORATION FOR THE BUILDING CONSTRUCTED BY THE PETITIONER DATED 09/11/2018.

¶54

APPNENDIX- OP(C) 1675/2019

¶55

-2-

¶56

EXHIBIT P12	TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, ERNAKULAM DATED 13/08/2018 WITH REGARD TO 19.56 ARES OF PROPERTY OWNED BY THE PETITIONER IN SY.NO.202, 204/1, 204/2.
EXHIBIT P13	TRUE COPY OF THE ENCUMBRANCE CERTIFICATES FOR THE PETITIONER'S PROPERTY FROM 01/01/2017 TO 28/03/2019.
EXHIBIT P14	TRUE COPY OF THE SALE DEED BEARING NO.2322/95 OF ERNAKULAM SRO.
EXHIBIT P15	TRUE COPY OF THE SALE DEED BEARING NO.2133/95 OF ERNAKULAM SRO.
EXHIBIT P16	TRUE COPY OF THE SALE DEED BEARING NO.1966/95 OF ERNAKULAM SRO.
EXHIBIT P17	TRUE COPY OF THE SALE DEED BEARING NO.426/96 OF ERNAKULAM SRO.
EXHIBIT P18	TRUE COPY OF THE SALE DEED BEARING NO.3274/1995 OF ERNAKULAM SRO.
EXHIBIT P19	TRUE COPY OF THE SALE DEED BEARING NO.3033/2013 OF ERNAKULAM SRO.
EXHIBIT P20	TRUE COPY OF THE SALE DEED BEARING NO.4529/2013 OF ERNAKULAM SRO.
EXHIBIT P21	TRUE COPY OF THE SETTLEMENT DEED NO.1423/2014 OF EERNAKULAM SRO.
EXHIBIT P22	TRUE COPY OF THE TAX RECEIPT SHOWING THE PAUYMENT OF PROPERTY TAX IN 1.73 ARES OF PROPERTY COMPRISED IN SY.NO.204/2 OF ERNAKULAM VILLAGE FOR THE YEAR 2018-19.
EXHIBIT P22(A):	TRUE COPY OF THE TAX RECEIPT SHOWING THE PAUYMENT OF PROPERTY TAX IN 6 ARE 87 SQ.M. COMPRISED IN IN SY.NO.204/1 OF ERNAKULAM VILLAGE FOR THE YEAR 2018-19.
EXHIBIT P22(B):	TRUE COPY OF THE TAX RECEIPT SHOWING THE PAUYMENT OF PROPERTY TAX IN SY.NO.202, 204/1, 204/2 OF ERNAKULAM VILLAGE FOR THE YEAR 2018-19.
EXHIBIT P23:	TRUE COPY OF THE E.A.NO.324/2018 FILED BY THE RESPONDENT BEFORE THE HON'BLE MUNSIFF COURT, ERNAKULAM.

¶57

APPNENDIX- OP(C) 1675/2019

¶58

-3-

¶59

EXHIBIT P24 TRUE COPY OF VALUATION CERTIFICATE DATED 12.07.2019 OBTAINED FROM AN APPROVED VALUER K.M.LATHEEF PERTAINING TO APARTMENT NO. 68/3205A OF 'EVALIA APARTMENT'

¶60

EXHIBIT P25 TRUE COPY OF REGISTERED SALE DEED EXECUTED BY ME IN FAVOUR OF ONE PAULY.C.ANTO PERTAINING TO THE APARTMENT IN THE VERY SAME FLAT SHOWING THE VALUE OF THE APARTMENT HAVING AN EXTENT OF 147.25 SQ.METER.

Paul Alukkas Developers Pvt.Ltd, v. Chellappan Ajayakumar

Case brief

What is this about?

What did the court decide?

Paul Alukkas Developers Pvt.Ltd, v. Chellappan Ajayakumar

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

Coram

Case details

Similar cases

M.N.Nagaraju Vs M/S.K.S.Distillery

M/S.K.S.Distillery Vs M.N.Nagaraju

Kunhumon @ Chacko Vs Madhavikutty

Thekkedath Thekke Veetetil Narayana Vs K.P.Kalliyani Amma

Shija George Varkey Vs Dhan Singh

Paul Alukka, Vs Chellappan Ajayakumar