Allowed

Jithu Kuttichakku, v. Common Man Hits and Loans Private Ltd.

Kerala HC6 Nov 2020Ex.FA/38/2019

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an execution appeal contesting a claim petition under Order XXI Rule 97 CPC. The Court set aside the lower court's dismissal, noting the will's property description was inadequate. It remitted the matter for fresh consideration once the appellant identifies the property and the death date of the testator is ascertained.

What did the court decide?

Impugned order set aside; matter remitted to lower court for fresh consideration with directions to proceed only after identifying property under the will.

Jithu Kuttichakku, Vs Common Man Hits and Loans Private Ltd. — Property and Title | Kerala HC (2020)

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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 T.V.ANILKUMAR

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FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942

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Ex.FA.No.38 OF 2019

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AGAINST THE ORDER DATED 02-09-2019 IN E.A.NO.946/2012 IN E.A.1539/2010 IN E.P. NO.124/1998 IN O.S.NO.127/1991 OF PRINCIPAL SUB COURT,IRINJALAKUDA

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APPELLANT/ PETITIONER:

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JITHU KUTTICHAKKU, AGED 34 YEARS, D/O.KUTTICHAKKU KOCHUPAULY, CHALAKUDY DESOM, EAST CHALAKUDY VILLAGE, MUKUNDAPURAM DISTRICT.

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BY ADV. SRI.T.N.MANOJ

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RESPONDENTS/ RESPONDENTS 1 TO 8:

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1 COMMON MAN HITS AND LOANS PRIVATE LTD., CHEMBUKAVU DESOM AND VILLAGE, THRISSUR TALUK AND DISTRICT - 680 020.

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2 K.A.LILLY, W/O.AKKARA VEETTIL AUGUSTY, CHALAKUDY DESOM, EAST CHALAKUDY VILLAGE, CHALAKUDY TALUK-680 307.

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3 K.A.SABI, S/O.KUTTICHAKKU AUGUSTY, OTTAPALAM DESOM AND VILLAGE - 679 101, PALAKKAD DIST.

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4 K.A.MARY, W/O.KURIVITHADAM BABY, RESIDING AT M.C.ROAD, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT - 686661.

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5 KOCHUPAULY,

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S/O.KUTTICHAKKU AUGUSTY, CHALAKUDY DESOM, EAST CHALAKUDY VILLAGE, NOW CHALAKUDY TALUK-680 307.

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6 K.A.ROSY, W/O.JOY AND D/O.KUTTICHAKKU AUGUSTY, SBI KANNUR, KANNUR DISTRICT - 670 002.

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7 K.A.LUCY, S/O.ELATHINKAL KURUVILA, EDAPILLY DESOM, KOCHI TALUK -682 024.

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Ex.F.A.No.38/2019

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8 K.A.GEORGE, C/O.STATE BANK OF INDIA MARKET ROAD, ERNAKULAM-682 038.

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THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04-11-2020, THE COURT ON 06-11-2020 DELIVERED THE FOLLOWING:

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Ex.F.A.No.38/2019

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Dated this the 6^th November,2020

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J U D G M E N T

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The claim petition in E.A.No.946/2012 filed under Order XXI Rule 97 of the Code of Civil Procedure,1908(for short, 'the CPC') opposing decree holder's application for recovery of item No.1 in sale certificate dated 19.07.2010 was dismissed by the learned Principal Sub Judge, Irinjalakuda by impugned order dated 02.09.2019. The claim petitioner being aggrieved by the order, has filed this appeal.

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She contended that item No.1 in Ext.B2 sale certificate dated 19.07.2010 purchased by the decree holder in court auction in E.P.No.124/1998 was not binding and unenforceable against her. She claimed to have acquired absolute right, title and interests in the property by virtue of Ext.A1 Will dated 25.08.1987 executed by her grandfather, Sri.Augusty, who later passed away. It was contended that she being a necessary party in the sale proceeding which ended in court auction, the whole proceedings are invalid under law and the sale certificate would not confer any title on the auction purchaser, who is the first respondent in

Ex.F.A.No.38/2019

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E.A.No.946/2012.

In a money suit in O.S.No.127/1991 filed before the Sub Court, Thrissur against Sri.Augusty, the appellant's grandfather, a decree was obtained by first respondent which is a kuri company. In execution of the decree, four items of properties, including the property in dispute were brought to sale in court auction held on 10.11.2009. At some point of time, the original judgment debtor, Sri.Augusty passed away and his legal representatives were brought on record. Pursuant to the sale certificate obtained, the first respondent filed E.A.No.1539/2010 for recovery of possession of items purchased in court auction and it is in that context, the appellant came out with E.A.No.946/2012 resisting the delivery proceeding invoking Order XXI Rule 97 of the CPC, contending that she acquired rights over the property and was the absolute owner thereof.

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The first respondent, auction purchaser filed objection denying appellant's alleged title over item No.1 which is in dispute. It was contended that though item No.1 belonged to original judgment debtor, Sri.Augusty as per

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Ex.F.A.No.38/2019

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Ext.A2 dated 21.06.1973, there was nothing at all to show that the same property was bequeathed to appellant under Ext.A1 Will. Ext.A1 evidently does not disclose incorporation of usual property description.

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The court below examined attesting witness to Ext.A1 Will as PW1 on the side of the appellant in proof of execution of Will. It admitted in evidence Exts.A1 and A2 documents on the side of the appellant and Exts.B1 and B2 on the side of the contesting first respondent.

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Though the court below found that Ext.A1 Will was proved, it held that the appellant failed to establish that item No.1 in the sale certificate was bequeathed by the original judgment debtor to the appellant. Consequently, E.A.No.946/2012 was dismissed taking the view that appellant failed to prove her alleged rights and interests over the disputed item of property.

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I heard the learned counsel for the appellant. Even though respondents were served, they did not appear and contest the appeal.

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It is trite law that the proceeding under Order XXI Rule 97 of the CPC is an independent

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Ex.F.A.No.38/2019

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proceeding where the court has to decide all relevant questions as to right, title and interests of the claimant. The burden is no doubt upon the claimant to prove that he or she has title to the property and is covered by the deed which is relied on. According to the learned counsel for the appellant, there are necessary indications in Ext.A1 Will itself as well as Ext.A2 prior document to show that item No.1 is the same property held by the appellant. He submitted that in any event, if an opportunity is given, appellant would be willing to take out a commission to prove that the property is one and the same.

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The view taken by the court below that since the schedule description of property is not incorporated in Ext.A1, property was not identifiable, is not sound at all. The impugned order for this sole reason itself is liable to be set aside and the matter remitted back to court below for fresh consideration on all relevant questions arising under Order XXI Rule 101 of the CPC.

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From the records before me, I have not

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Ex.F.A.No.38/2019

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been able to make out the date when did the testator, Sri.Augusty die and Ext.A1 Will take effect. It is not known or rather shown whether sale proceeding were finalised before or after the Will having taken effect. This is a very crucial question which has bearing on the final decision to be taken in the case. If it comes out that the property comprised in Ext.A1 and the property in dispute are the same, the court below would consider the question whether the appellant was a necessary party to the sale proceeding and was bound by the sale held on 10.11.2009 in favour of the first respondent.

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In the result, the appeal is allowed setting aside the impugned order dated 02.09.2019 in E.A.No.946/2012 in E.A.No.1539/2010 in E.P.No.124/ 1998 in O.S.No.127/1991. The court below will give the appellant an opportunity to prove her contention as to purported title to item No.1 in the sale certificate by identifying it on the basis of necessary documents. The court below will proceed to decide E.A.No.946/2012, in the light of the observations made above after giving sufficient opportunities to the parties on either

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Ex.F.A.No.38/2019

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side. The court below will dispose of the matter within a period of three months from the date of receipt of a certified copy of this judgment.

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All pending interlocutory applications will

stand closed.

Sd/-

T.V.ANILKUMAR,JUDGE

DST

//True copy/

P.A.To Judge

Jithu Kuttichakku, v. Common Man Hits and Loans Private Ltd.

Case brief

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Jithu Kuttichakku, v. Common Man Hits and Loans Private Ltd.

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