Dismissed

Sijo Joy v. Radhamani Amma

Kerala HC27 May 2019OP(C)/845/2019

Case brief

AI extract

What is this about?

In an original civil petition, the Kerala High Court dismissed the petitioner's challenge to the dismissal of his execution claim. The court held that reliance on documentary evidence alone, without oral testimony or proof of actual possession, was insufficient to establish the petitioner's status as a bonafide purchaser, especially when evidence suggested a conspiracy to cheat the decree-holder.

What did the court decide?

Original Petition fails and is dismissed; no interference with the impugned order.

Sijo Joy Vs Radhamani Amma — Execution and Attachment | Kerala HC (2019)

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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 SUNIL THOMAS

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MONDAY, THE 27TH DAY OF MAY 2019 / 6TH JYAISHTA, 1941

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OP(C).No. 845 of 2019

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AGAINST THE ORDER/JUDGMENT IN OS 112/2012 of SUB COURT, KOTTARAKKARA

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PETITIONER:

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SIJO JOY AGED 24 YEARS S/O.JOY, SIJO BHAVAN, PODIYATTUVILA MURI, ARACKAL VILLAGE, PATHANAMTHITTA TALUK, PATHANAMTHITTA DISTRICT.

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BY ADV. SMT.MINI.V.A.

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RESPONDENTS:

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1 RADHAMANI AMMA, AGED 54 YEARS, D/O.BHARGAVI AMMA, KARAMEL VEEDU, VETTIKAVALA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT-691506.

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2 SAJIMON, AGED 42 YEARS, S/O.YOHANNAN, SAJI BHAVAN, CHIRATTAKKONAM, TALACHIRA MURI, VETTIKKAVALA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT-691506.

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BY ADV. SRI.K.V.ANIL KUMAR

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ADV.R.SATHISH KUMAR FOR R2

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OP(C).No. 845 of 2019

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JUDGMENT

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The petitioner herein is the claim petitioner in E.A.No.228/2015 in E.P.No.7/2015 in O.S.No.112/2012. He is aggrieved by the dismissal of the above E.A. filed under Order XXI Rule 58 of Civil Procedure Code. In the petition, it was stated that he is a bonafide purchaser of the property, which was brought for sale. He purchased it by document No.1689/2015. According to him, it was mutated and is in exclusive possession. The petitioner is residing in the building situated in that property. While so, it was brought to his notice that the property was attached and proposed to be sold in execution in the above proceedings. Hence, the claim petition was filed.

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The 1^st respondent-decree holder appeared and contested the proceedings. The 2^nd respondent-defendant appeared through Adv.R.Sathish Kumar.

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OP(C).No. 845 of 2019

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Heard both sides and examined the records.

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It seems that the 1^st respondent herein, on the

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strength of an agreement for sale, had filed the suit for recovery of the advance money paid to the 2^nd respondentdefendant. The suit was filed for recovery of a sum of Rs.15,30,000/- (Rupees fifteen lakh and thirty thousand only), and the matter was referred for mediation. The matter was settled for a sum of Rs.7,00,000/- (Rupees seven lakh only) payable within a stipulated time. As agreed between the parties, the attachment was vacated. It appears that the 2^nd respondent-defendant, instead of paying the money within the stipulated time of four months, allegedly executed the sale deed in favour of the claim petitioner. Thereafter, the claim petition was filed. It is in this background, the present proceedings were initiated.

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It seems that in the claim petition, no oral

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evidence was tendered on the side of the claim petitioner.

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OP(C).No. 845 of 2019

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He exclusively relied on Ext.A1 sale deed and Exts.A2 to A4 documents to show that the property was mutated in his favour. Evidently, the matter was settled. If we believe the documents, the sale consideration of Rs.4,00,000/- was paid to the 2^nd respondent-defendant. Even that amount was not paid towards the decree debt. Evidently, the decree debt remain unpaid, even within the stipulated time or much later thereafter. It was in this background, the execution proceedings were initiated.

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Even though the claim petitioner claimed that he was in absolute possession of the property, no evidence was let in to show that he was in actual physical possession of the property. It also emerged in the course of hearing that the claim petitioner is the nephew of the 2^nd respondent-defendant. In all probability, it appears that this was a sham document brought into existence by the 2^nd respondent to cheat the decree-holder. The claim petitioner

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also did not dare to enter the box to give evidence in

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OP(C).No. 845 of 2019

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support of his claim. There was absolutely, no materials to show that he has a bonafide purchaser for consideration, especially when he had purchased it after the attachment was vacated. Even the records of the Registry would have conveyed the prior attachment and the pendancy of the suit.

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Having considered this, I am inclined to hold that the court below was perfectly justified in dismissing EA.No.228/2015. I find no reason to interfere in the impugned order. Original Petition fails and dismissed.

Sd/-

SUNIL THOMAS

JUDGE

Nkr/25.05.19

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OP(C).No. 845 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.1689/2015 OF SRO. KOTTARAKKARA.

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EXHIBIT P2 TRUE COPY OF THE CLAIM PETITION FILED BY THE PETITIONER AS E.A.NO.228/2015 IN E.P.NO.07/2015 IN O.S.NO.112/2012 BEFORE SUB COURT, KOTTARAKKARA.

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EXHIBIT P3 TRUE COPY OF THE ORDER DATED 13.2.2019 IN E.A.NO.228/2015 IN E.P.NO.07/2015 IN O.S.NO.112/2012 OF SUB COURT,KOTTARAKKARA.

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RESPONDENT/S EXHIBITS: NIL

Sijo Joy v. Radhamani Amma

Case brief

What is this about?

What did the court decide?

Sijo Joy v. Radhamani Amma

Case brief

What is this about?

What did the court decide?

What the court decided

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