This Execution First Appeal challenged the lower court's allowance of a claim petition seeking to exclude property from attachment. The High Court set aside the lower court's order, holding that valid attachment of the son's fractional share remained against the relief sought.
The order allowing the claim petition was set aside and the application dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 22ND DAY OF MARCH 2023 / 1ST CHAITHRA, 1945
EX.FA NO. 38 OF 2014
AGAINST THE ORDER DATED 09/6/2014 IN E.A.NO.34/2013 IN E.P.NO.2012
IN OS 2/2005 OF SUB COURT,KOTTARAKKARA
APPELLANT/1ST RESPONDENT/DECREE HOLDER:
FASALUDEEN, AGED 59 YEARS, S/O. ABDULKHADER, INCHAKKAL
HOUSE, BHARANIKAVU MURI, PUNALUR VILLAGE,
PATHANAPURAM TALUK, KOLLAM.
BY ADVS.
SRI.D.SAJEEV
SMT.LIGEY ANTONY
RESPONDENTS/CLAIM PETITIONER & JUDGMENT DEBTOR:
1 ARIFA BEEVI, AGED 64 YEARS, W/O. JALALUDEEN, SHAJI NIVAS, KARAKKAD WARD, VALAKKODU MURI, PUNALUR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT - 689695.2 SHAJI, S/O. JALALUDEEN, VALAKKODU MURI, PUNALUR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT - 689 695. BY ADVS. SRI.C.RAJENDRAN SRI.K.R.RANJITHTHIS EXECUTION FIRST APPEAL HAVING COME UP FOR HEARING ON
22.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
EX.FA NO. 38 OF 2014
2
JUDGMENT
A claim petition preferred by the mother of
judgment debtor was allowed by the trial court,
overlooking the fact that an attachment before
judgment with respect to the fractional interest held
by the son over the property was passed at the trial
stage. The attachment was on 04/01/2005. The other
fractional share admittedly belonged to the mother,
the claim petitioner. Her case is that, subsequently
on 19/7/2007, she had obtained release of fractional
right of her son, the judgment debtor. As such, she
had obtained absolute right, title and interest over
the property. Hence, the claim petition.
2. I am at a loss to understand why the abovesaid
factual materials were omitted to be considered by
the trial court. Admittedly, the attachment is on
04/01/2005. It was intimated to the Tahsildar,
Village Officer and the Sub Registrar, Punalur, in
time, to which a report was also submitted before the
trial court. Strange enough, the trial court has
3
EX.FA NO. 38 OF 2014
overlooked the same on the reason that it was not
reflected in the encumbrance certificate obtained by
the claim petitioner with respect to the abovesaid
property. The various clauses incorporated in the
encumbrance certificate itself would show that the
department or the state government is not responsible
for any of the omissions with respect to entries in
the certificate. Further, the party will be at
liberty to make any enquiry during the working hours
of the Sub Registrar Office. What is required and
mandated in order to effectuate a valid attachment
over the property, either at the trial stage or at
the execution stage, is to enter the same in the
register kept by the Sub Registrar and to publish the
same through the Village Officer concerned. Both the
limbs have been complied with. Hence, the claim
petition cannot be sustained as far as the 1/2
udukoor right of the son, the judgment debtor is
concerned. The attachment made over the property is
only with respect to the right held by the son, the
judgment debtor. Hence, the claim petition ought to
EX.FA NO. 38 OF 2014
4
have been dismissed by the trial court. The trial
court has committed a grave error in allowing the
said application. Hence, the same will stand set
aside and the application will stand dismissed.
The appeal is allowed accordingly. No costs.
Sd/-
P.SOMARAJAN
JUDGE
msp
1 issue framed by the court
Whether a claim petition for decaying a judgment debtor's property can be allowed when attachment of judgment is prior rabadon.
FASALUDEEN
ARIFA BEEVI
SHAJI
P. SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court