Remanded

Ratheesh Kumar P.K. v. Deepa R.

Kerala HC23 Sept 2021MA (EXE.)/2/2017

Case brief

AI extract

What is this about?

The High Court held that the Family Court erred in confirming the auction sale of jointly owned property while a claim petition was pending, violating Order XXI Rules 58 and 59 CPC. The sale was remanded; the lower court must re-adjudicate evidence, adjust the sale certificate to reflect the petitioner's 1/3rd share, and refund 2/3rd of the sale price.

What did the court decide?

Impugned order set aside; execution petition remanded for fresh disposal with opportunity to adduce evidence; sale corrections to reflect 1/3rd share and refund of 2/3rd sale price ordered; further pr

Ratheesh Kumar P.K. Vs Deepa R. — Partition | Kerala HC (2021)

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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 A.MUHAMED MUSTAQUE

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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THURSDAY, THE 23^RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943

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OP (FC) NO. 245 OF 2017

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IN EP NO.26/2010 NI EP 26/2014 IN OP 180/2009 OF FAMILY

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COURT, THIRUVALLA

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PETITIONER:

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RATHEESH KUMAR P.K., S/O.KARUNAKARAN PILLAI,SANTHI BHAVAN,KATTODU.P.O,MEENATHALAKKARA MURI,KUTTAPPUZHA VILLAGE,THIRUVALLA TALUK,PATHANAMTHITTA DISTRICT.

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BY ADV SMT.BINDU GEORGE

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RESPONDENT:

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1 DEEPA R, CHIRAKKAL,AZHIYIDATHUCHIRA MURI, KAVUMBHAGOM VILLAGE,THIRUVALLA TALUK,PATHANAMTHITTA DIST.689101.

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2 SATHEESH KUMAR.P.K S/O KARUNAKARAN PILLAI,SANTHI

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BHAVAN,KATTODU.P.O,MEENAHTLAKKARA MURI,KUTAPPUZHA VILLAGE,THIRUVALLA TALUK,PATHANAMTHITTA DIST.689101.

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O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

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3 VARGHESE MATHEW KANANILKKUMKALAYAIL HOUSE,THEEYADICKAL.P.O,RANNI TALUK,PATHANAMTHITTA DISTRICT-689109.

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BY ADVS. SRI.C.V.MANUVILSAN SRI.PRATHEESH.P SRI.PRATHEESH.P SMT.C.B.SABEELA SRI.UNNI. K.K. EZHUMATTOOR SMT.K.VIDYA SRI.VINODE V. LUKA

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THIS MAT APPEAL (EXECUTION) HAVING BEEN FINALLY HEARD ON 23.09.2021, ALONG WITH MA (EXE.).2/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

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-:3:-

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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 A.MUHAMED MUSTAQUE

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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THURSDAY, THE 23^RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943

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MA (EXE.) NO. 2 OF 2017

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AGAINST THE ORDER DATED 30.6.2016 IN EP 49/2015, EP 26/2010IN OP 180/2009 OF FAMILY COURT, THIRUVALLA

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APPELLANT/PETITIONER:

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RATHEESH KUMAR P.K.

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S/O.KARUNAKARAN PILLAI, SANTHI BHAVAN, KATTODU P O, MEETHALAKKARA MURI, KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.

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BY ADVS.

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SRI.P.K.SREEDHARAN SMT.BINDU GEORGE

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RESPONDENT/S:

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1 DEEPA R., CHIRAKKAL, AZHIYIDATHUCHIRA MURI, KAVUMBHAGOM VILLAGE, THIRUVALLA TALUK, PATHAMATHITTA DISTRICT 689101

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O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

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-:4:-

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2 SATHEESH KUMAR P K S/O.KARUNAKARAN PILLAI, SANTHI BHAVAN, KATTODU P O, MEETHALAKKARA MURI, KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT 689101

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BY ADVS. SRI.C.V.MANUVILSAN SRI.PRATHEESH.P SMT.C.B.SABEELA SMT.K.VIDYA SRI.VINODE V. LUKA

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THIS MAT APPEAL (EXECUTION) HAVING BEEN FINALLY HEARD ON 23.09.2021, ALONG WITH OP (FC).245/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

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J U D G M E N T

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Dated this the 23rd day of September, 2021

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Kauser Edappagath, J.

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The dispute in the above Original Petition and Matrimonial Appeal

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(Execution) pertains to the claim of the appellant/petitioner over the property attached and sold in execution of a decree in O.P.No.180/2009 on

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the files of the Family Court, Thiruvalla (for short 'the court below').

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The 1st respondent was the wife of the 2nd respondent. The

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appellant/petitioner is the brother of the 2nd respondent. The 1st respondent instituted O.P.No.180/2009 at the court below against the 2nd respondent

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and her parents for recovery of gold ornaments and money. The said

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original petition was decreed against the 2nd respondent alone and a decree

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for a sum of Rs.3,28,000/-(Rupees Three lakhs twenty eight thousand only)

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O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

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-:6:-

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with interest was granted.

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The decree holder/ 1st respondent filed an execution petition at

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the court below as E.P.No.26/2010 to execute the decree by attachment and

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sale of property allegedly belongs to the 2nd respondent. The property comprises of 8 Ares of land situated in Sy.No.675/22 of Kuttapuzha Village.

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The property was initially attached and then sold in court auction to the 3rd respondent in O.P.(FC).No.245/2017. The sale was effected on 12.7.2013

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and it was confirmed on 24.9.2013. However, the delivery has not been effected so far in view of the interim order passed by this Court in O.P. (FC).No.245/2017. Even before the sale, the appellant/petitioner filed E.A.No. 49/2015. invoking Order XXI Rule 58 of the CPC alleging that he has got 1/3rd right over the property attached. His case is that the property

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attached originally belonged to his father and on the death of his father, the

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property devolved on him, the 2nd respondent as well as their mother and

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O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

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as such, he is having 1/3rd right over the property and the said right ought

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not have been attached. A declaration was sought in the claim petition to

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declare his 1/3rd right over the property. The claim petition was filed on 23.8.2012. The court below without considering the claim, conducted the sale on 12.7.2013. The 3rd respondent in OP(FC) purchased the property in court auction. The sale was confirmed on 24.9.2013. The claim petition

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was taken for consideration after the confirmation of sale and it was disposed of on 30.6.2016 as per impugned order in Mat.A.(Exe) 2/2017. The court below dismissed the claim petition mainly holding that the petitioner/appellant failed to prove that he is having 1/3 rd right over the property attached and sold as contented by him. It is challenging the said order Mat.A.(Exe) No.2/17 has been filed.

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Thereafter, the 3rd respondent in O.P.(FC).No.245/2017 who is

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the auction purchaser filed E.P.No. 26/2014 at the court below to deliver

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O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

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-:8:-

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the property purchased by him through auction. O.P.(FC) No.245/2017

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has been filed challenging the sale and to keep in abeyance the proceedings in E.P.No.26/2010 and E.P.No.26/2014.

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We have heard the counsel appearing on both sides.

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The definite case of the appellant/petitioner is that his father

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Sri.Karunakaran Pillai was the title holder of 13.17 Ares of land comprised in Re.Sy.Nos. 675/22 and 675/23 of Kuttappuzha Village and on his death,

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the said property devolved on him, the 2nd respondent and their mother. The property attached and sold to the 3rd respondent is situated in Re.Sy.No. 675/22 and its extent is 8 Ares. Sri.Karunakaran Pillai died on 10.7.2010.

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The claim petition was adjudicated by the court below giving opportunity

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to both parties to adduce evidence. The petitioner/claim petitioner in

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support of his case produced Ext.A1 title deed. The schedule of Ext.A1 title

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deed would show that it is in respect of 5.70 Ares of land situated in

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O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

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Sy.No.675/23. The court below holding that the survey number shown in

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Ext.A1 title deed and the survey number of property sold in court auction

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was different, dismissed the claim petition.

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At this Court, the appellant/petitioner produced four

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documents as additional evidence invoking Order XLI Rule 27 of the CPC.

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The document Nos. 1 and 2 are the judgment and decree in O.S.No.8/2014.

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It was a suit for partition between the appellant/petitioner, the 2 nd

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respondent and their mother. The auction purchaser was also impleaded

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as additional 3rd defendant in the said suit. Two items of properties are

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shown in the schedule of the said suit. A perusal of the property described

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in the decree schedule No.1 would show that it is the same property now

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attached and sold in E.P.No. 26/2010. The description of the property is

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one and the same. The title deed of the said property has also been

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produced before us. It is document No.2019/1973. The said title deed

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O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

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would show that Sri.Karunakara Pillai had title over the property covered

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by it. O.S.No.8/14 was decreed holding that on the death of

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Sri.Karunakaran Pillai, the appellant, the 2nd respondent as well as their mother would get 1/3rd right over the property and a preliminary decree

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for partition was passed. It is pertinent to note that the auction purchaser contested the said suit and put forward all his contentions. The court found that the auction purchaser would get only 1/3rd right of the 2nd respondent.

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The documents produced before us would prima facie show that the appellant/petitioner has acquired 1/3rd right over the property attached and sold and the 2nd respondent has only 1/3rd right in the said property. The auction purchaser cannot acquire better title than the 2nd respondent had over the property.

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As stated already, the claim petition was filed on 23.8.2012.

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During the pendency of the said claim petition, the sale was ordered and it

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O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

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was confirmed on 12.7.2013 and 24.9.2013 respectively. Order XXI Rule

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59(b) provides that where a claim was preferred under Rule 58, the court

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shall postpone the sale pending the investigation of the claim. It specifically

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says that at any rate, even if the property is sold, the sale shall not be confirmed pending adjudication of the claim. Thus, the action on the part

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of the court below in conducting and confirming the sale while the claim

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petition was pending is patently wrong and contrary to the provisions of

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Order XXI Rule 59 of the CPC.

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What has been produced before us are the photocopies of the

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decree, judgment and title deeds. The petition under Order XXI Rule 58

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has to be adjudicated as suit. These documents were not produced at the

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court below. The decree holder did not get an opportunity to counter those

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documents as those documents were not tendered in evidence. Hence we

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are of the view that the appellant/petitioner shall be given an opportunity

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O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

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to produce the original of those documents at the court below to

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substantiate his claim that he is having 1/3rd right over the property.

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In the light of the above findings, we set aside the impugned

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order in Mat.Appeal (Exe) No.2/17. E.A.No.49/15 is remanded to the court

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below for fresh disposal. The court below shall give opportunity to the

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appellant/petitioner as well as the respondents to adduce additional evidence. Thereafter, the court below shall dispose of the claim petition in

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accordance with law on merits. In the event the court below allows the claim petition, the sale effected and confirmed by the court below shall be confined to 1/3rd right of the 2nd respondent. The court below shall recall

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the sale certificate and make necessary corrections therein to that extent.

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The court below shall also refund 2/3rd of the sale price already deposited by the auction purchaser/3rd respondent to him. The decree holder/1st

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respondent is entitled only to 1/3rd of the sale price. For the balance

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O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

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amount, if any, the decree holder/1st respondent is free to execute the

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decree in accordance with law. All further proceedings in EP No.26/2014

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shall be kept in abeyance till the disposal of EA No.49/2015. The parties

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shall appear before the court below on 1/10/2021 and the entire proceedings shall be concluded by the court below within a period of three

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months therefrom.

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Mat.Appeal and OP(FC) are disposed of as above.

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ASd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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Sd/-

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DR. KAUSER EDAPPAGATH

JUDGE

kp True copy

P.A. To Judge

O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

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APPENDIX OF OP (FC) 245/2017

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PETITIONER EXHIBITS

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EXHIBIT P1	A TRUE COPY OF THE JUDGMENT AND DECREE DATED 24/11/2009 IN OP(HMA)180/2009 OF THE FAMILY COURT,THIRUVALLA.
EXHIBIT P2	A TRUE COPY OF THE CLAIM PETITION EA NO:49/2012 IN E.P.26/2010 IN O.P.NO.180/2009 OF THE FAMILY COURT, THIRUVALLA.
EXHIBIT P3	A TRUE COPY OF THE PROOF AFFIDAVIT IN E.A.49/2012 IN E.P.26/2010 IN OP NO.180/2009 BEFORE THE HON'BLE FAMILY COURT THIRUVALLA
EXHIBIT P4	A TRUE COPY OF THE PETITION FOR REOPENING EVIDENC IN E.P.26/201O IN OP NO.180/2009 BEFORE THE HON'BLE FAMILY COURT THIRUVALLA
EXHIBIT P5	A TRUE COPY OF OBJECTION FILED BY THE FIRST RESPONDENT IN E.A.49/2012 IN E.P.NO.26/2010 IN O.P.NO.180/2009 BEFORE THE HON'BLE FAMILY COURT,THIRUVALLA
EXHIBIT P6	A TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE FIRST RESPONDENT IN E.A.49/2012 IN E.P.26/2010 ION OP.NO180/2009 BEFORE THE HON'BE FAMILY COURT,THIRUVALLA
EXHIBIT P7	A TRUE COPY OF THE CLAIM PETITION E.A.NO.103/2013 IN E..P.26/2010 IN O.P.NO.180/2009 BEFORE THE HON'BLE FAMILY COURT,THIRUVALLA

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-:15:-

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O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

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EXHIBIT P8	A TRUE COPY OF THE PROOF AFFIDAVIT IN E.A.103/2013 IN E.P.26/2010 IN O.P.180/2009 BEFORE THE HON'BLE FAMILY COURT,THIRUVALLA
EXHIBIT P9	A TRUE COPY OF THE RESTORATION PETITION IN E.A.103/2013 IN E.P.NO.26/2010 IN OP.NO.180/2009 BEFORE THE HON'BLE FAMILY COURT,THIRUVALLA
EXHIBIT P10	A TRUE COPY OF THE EP.NO.26/2014 IN O..P.180/2009 BEFORE THE HON'BLE FAMILY COURT,THIRUVALLA
EXHIBIT P11	A TRUE COPY OF THE IMPLEADING PETITION E.A.118/2014,IN E.P.26/2014 IN O.P.NO.180/2009 BEFORE THE HON'BLE FAMILY COIURT,THIRUVALLA
EXHIBIT P12	A TRUE COPY OF THE ORDER DATED 30.06.2016 IN E.A.49/2015 IN E.P.NO.26/2010 IN OP.NO.180/2009 BEFORE THE HON'BLE FAMILY COURT,THIRUVALLA.
Exhibit P13	TRUE COPY OF THE JUDGMENT DATED 29.06.2021.
Exhibit P14	TRUE COPY OF THE DECREE.
Exhibit P15	TRUE COPY OF THE DEED NO.2019/1973 DATED 25.07.1973 WITH TRANSLATION.
Exhibit P16	TRUE COPY OF THE DEED NO.3760/1996 DATED 11.12.1996 WITH TRANSLATION.

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O.P.(FC).No.245/2017 & Mat.Appeal (Exe) No.2/2017

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APPENDIX IN MAT.(EXE) 2/2017

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ANNEXURE 1 CERTIFIED COPY OF THE JUDGMENT DATED 29.06.2021. ANNEXURE 2 CERTIFIED COPY OF THE DECREE. ANNEXURE 3 NOTARISED COPY OF THE DEED NO.2019/1973 DATED 25.07.1973 WITH TRANSLATION. ANNEXUE 4 NOTARISED COPY OF THE DEED NO.3760/1996 DATED 11.12.1996 WITH TRANSLATION.

Ratheesh Kumar P.K. v. Deepa R.

Case brief

What is this about?

What did the court decide?

Ratheesh Kumar P.K. v. Deepa R.

Case brief

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