The Court dismissed the Original Petition seeking to quash a sale proclamation. It held that the petitioner, a third party with a life interest not included in the execution petition, cannot invoke Article 227 at this interim stage as her rights are safeguarded by prior orders.
The Original Petition under Article 227 was dismissed without any observation on the merits.
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 ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944 O.P.(FC) NO. 17 OF 2023
PETITIONER:
SALMA BEEVI AGED 69 YEARS W/O. ISMAIL RAWTHER, ALINTE THEKKETHIL HOUSE, VETTIYAR, MANGAKUZHY P.O., MAVELIKKARA, ALAPPUZHA, PIN – 690558.
BY ADVS. K.R.VINOD M.S.LETHA NABIL KHADER CHITHRA C.EDADAN
RESPONDENTS:
1 SHEEJA AGED 38 YEARS D/O. MUHAMEMD ALI, PLAVILA, RAMALLOOR COLONY, VETTIYAR MURI, MANKAMKUZHI P.O., MAVELIKKARA, ALAPPUZHA, PIN – 690558.
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2 NIZAR, AGED 55 YEARS, S/O. ISMAIL RAWTHER, ALINTE THEKKATHIL, VETTIYAR, MANGAKUZHY P.O., MAVELIKKARA, ALAPPUZHA, PIN – 690558.
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
P.G.Ajithkumar, J.
O.P.No.242 of 2015 was filed before the Family Court, Mavelikkara by the 1st respondent seeking return of gold ornaments and realisation of money from the 2nd respondent. That O.P. was decreed. The 1st respondent filed E.P.No.65 of 2016. In execution of the said decree, an extent of 10.5 cents of land comprised in Re-survey No.290/20 in block No.6 of Vettiyar Village, Mavelikkara was attached. The petitioner filed E.A.No.156 of 2018 in that Execution Petition under Order XXI, Rule 58 of the Code of Civil Procedure, 1908, claiming that she has life interest in the property, and therefore the same could not be sold in auction. The Family Court, Mavelikkara as per Ext.P2 order dismissed E.A.No.156 of 2018. However, it was held that the sale of the property shall be subject to the life interest of the petitioner in the said property. The petitioner has filed this Original Petition under Article 227 of the Constitution of India seeking to set aside Ext.P4 sale proclamation stating that 5 cents out of the
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aforesaid 10.5 cents of property is proclaimed for sale without showing in the proclamation schedule the life interest of the petitioner over the property.
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the judgment debtor in the property alone. If that right is subject to the life interest of the petitioner, the same will not be affected by such sale. At this interim stage of the execution proceedings, it is not available for the petitioner who is a third party to invoke the provisions of Article 227 of the Constitution of India to challenge the proceedings in the Execution Petition. As the matters stand, the petitioner has no reason to challenge the execution proceedings. In such circumstances, we are of the view that this Original Petition does not merit consideration and therefore the same is dismissed without making any observation on the merits of the contentions put forward by the petitioner.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
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APPENDIX OF OP (FC) 17/2023
PETITIONER EXHIBITS
EXHIBIT P1 THE COPY OF THE SETTLEMENT DEED NO.1238/2004 OF SRO MAVELIKKARA
EXHIBIT P2 THE COPY OF THE ORDER IN E.A.NO.156/2018 DATED 10.08.2020 OF FAMILY COURT, MAVELIKKARA EXHIBIT P3 THE COPY OF THE ORDER OF SALE DATED 22.11.2022 OF FAMILY COURT, MAVELIKKARA EXHIBIT P4 THE COPY OF THE SALE PROCLAMATION PUBLISHED BY THE ORDER OF THE FAMILY COURT, MAVELIKKARA DATED 29.12.2022
1 issue framed by the court
Whether a third party with a life interest in property can invoke Article 227 to challenge the sale proclamation in execution proceedings where she was not a party to the execution petition.
2 provisions across 2 enactments
Salma Beevi
Sheeja
Nizar
Anil K.Nandren
P.G. Ajithkumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
