Allowed

Andrews v. Parish Chits (P) Ltd.

Kerala HC16 Sept 2022OP(C)/1134/2019

Case brief

AI extract

What is this about?

The High Court of Kerala, using its superintendence power under Article 227 of the Constitution, allowed a petition to set aside an execution sale. The court noted that the decree debt was fully paid by the petitioner and the decree holder had not taken possession, prompting an order to quash the sale and order re-conveyance.

What did the court decide?

The impugned order (Ext.P2) is set aside; the execution sale dated 4.7.2017 is set aside; the sale certificate is cancelled and the property is ordered to be re-conveyed to the petitioner.

Andrews Vs Parish Chits (P) Ltd. — Execution and Attachment | Kerala HC (2022)

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OP(C) NO. 1134 OF 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 C.S.DIAS

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FRIDAY, THE 16^TH DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944

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OP(C) NO. 1134 OF 2019

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AGAINST THE ORDER IN E.A 117/2019 IN E.P 964/2015 IN O.S 2451/2013 OF II ADDITIONAL MUNSIFF COURT,THRISSUR

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PETITIONER/:

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ANDREWS AGED 69 YEARS S/O. KARUTHUKULANGARA CHAKLATHI DEVASSY AVINESSERY VILLAGE, THRISSUR TALUK.

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BY ADVS. SHEJI P.ABRAHAM THUSHARA PAILY

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RESPONDENT:

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PARISH CHITS (P) LTD CHERPU P.O, THRISSUR 680 561

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BY ADVS. V.V.JOY LEKSHMI P. NAIR(K/001011/2017)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) NO. 1134 OF 2019

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JUDGMENT

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The original petition is filed to set aside the order in E.A No.117/2019 (Ext.P2) in E.P. No.964/2015 in O.S No.2451/2013 of the Court of the II Additional Munsiff, Thrissur, and set aside the sale of the property involved in the execution petition.

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The petitioner's case, in a nutshell, in the original petition is that; the petitioner is the judgment debtor in the above Execution Petition, filed by the respondent to realise the decree amount of Rs.4,48,587/with interest and cost. The respondent had laid the decree to execution by proceeding against the petitioner's property having an extent of 3.25 Ares of land comprised in Re-survey No.215/6 in Cherpu SRO, Avinissery Village, Thrissur District. The respondent had bid in the auction and purchased the property.

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OP(C) NO. 1134 OF 2019

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Subsequently, the petitioner and the respondent arrived at an out of court settlement and the petitioner paid off the entire decree debt to the respondent. Even though the sale took place, the petitioner is still in possession of the property and the sale certificate is not issued in favour of the respondent. Stating all the above aspects, the respondent had filed Ext.P1 full satisfaction memo before the Execution Court. Thereafter, the petitioner had filed E.A No.117/2019, to set aside the sale held on 4.7.2017 and confirmed on 13.10.2017. However, the court below, by the impugned Ext.P2 order, dismissed the application on the ground that the application was beyond the period of limitation. Although the petitioner had challenged Ext.P2 order before this Court in appeal, the same was not numbered and the objection of the Registry was sustained. The petitioner was directed to file the original petition. Hence the original petition.

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OP(C) NO. 1134 OF 2019

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3 Heard; Sri.Sheji.P.Abraham, the learned counsel

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appearing for the petitioner and Sri.V.V.Joy, the learned counsel appearing for the respondent.

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Sri.V.V.Joy vouched the assertions in the original petition and admitted that the subject matter in dispute between the petitioner and the respondent has been settled, and the respondent had filed a full satisfaction memo before the Execution Court. The respondent has not taken possession of the property and has no objection in the sale being set aside.

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On a consideration of the peculiar facts and circumstances of the case, particularly the submission of the learned counsel appearing for the respondent that the respondent has not taken possession of the property and has received the entire decree debt, I am inclined to exercise the extra-ordinary power of superintendence of this Court under Article 227 of the Constitution of India,

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in favour of the petitioner, by allowing the original

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OP(C) NO. 1134 OF 2019

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petition and setting aside of Ext.P2 order and the sale dated 4.7.2017.

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In the result, the original petition is allowed in the following manner:

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(i) Ext.P2 order is set aside.

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(ii) E.A No.117/2019 is allowed.

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(iii) The sale conducted on 4.7.2017 and confirmed in favour of the respondent on 13.10.2017 is set aside.

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(iv) The Execution Court shall cancel the sale certificate issued in favour of the respondent and communicate the same to the Revenue and Registering Authorities, and order the re-conveyance of the property in favour of the petitioner.

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(v) The parties shall bear their respective costs.

Sd/-C.S.DIAS

ma/17/9/2022

JUDGE

OP(C) NO. 1134 OF 2019

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APPENDIX OF OP(C) 1134/2019

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE MEMO FILED BY THE DECREE HOLDER TO RECORD THE FULL SATISFACTION OF THE DECREE AMOUNT EXHIBIT P2 TRUE COPY OF THE ORDER DTD 23-1-2019 IN E.A NO. 117/2019 IN E.P 964/2015 IN O.S NO. 2451/2013 ON THE FILE OF II ADDL. MUNSIFF, THRISSUR.

Andrews v. Parish Chits (P) Ltd.

Case brief

What is this about?

What did the court decide?

Andrews v. Parish Chits (P) Ltd.

Case brief

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What did the court decide?

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