Allowed

Keloth Reena v. Safiya

Kerala HC5 Mar 2024Ex.SA/12/2018

Case brief

AI extract

What is this about?

In this execution second appeal, the High Court of Kerala held that a decree holder cannot claim more than the decree debt amount when only a statutory charge exists. The appeal was allowed after the deposit of Rs. 1,20,017 as the decree debt, directing the execution court to record satisfaction and release the property from charge. Outstanding amounts beyond the deposit remain recoverable.

What did the court decide?

Allowed the execution second appeal; directed execution court to record satisfaction of decree upon payment of outstanding amount if any beyond deposited Rs. 1,20,017/-; declared property free from ch

Keloth Reena Vs Safiya — Execution and Attachment | Kerala HC (2024)

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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. BADHARUDEEN

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TUESDAY, THE 5^TH DAY OF MARCH 2024 / 15TH PHALGUNA, 1945

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EX.SA NO. 12 OF 2018

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AGAINST THE JUDGMENT AND DECREE DATED 18.08.2018 IN AS NO.50 OF 2015 OF SUB COURT, SULTHANBATHERY

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ARISING OUT OF THE ORDER DATED 08.07.2015 IN EA NO.52/2013 IN EP NO.9/2012 IN OS NO.536 OF 2002 OF

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MUNSIFF COURT, MANANTHAVADY

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APPELLANT/APPELLANT/CLAIM PETITIONER:

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KELOTH REENA AGED 36 YEARS DAUGHTER OF BALAN,KELOTH HOUSE, PAYODU, NALLOORNAD POST,MANANTHAVADY TALUK, WAYANAD DISTRICT.

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BY ADVS. V.SURESH SRI.G.SUDHEER

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RESPONDENTS/RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTOR:

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1 SAFIYA WIFE OF NECHIKKAT ALI,NECHIKKAT HOUSE, KUNAMANGALAM AMSOM AND DESOM, KOZHIKODE TALUK,PIN-673570.

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2 JOSE @ JOSE MATHEW SON OF MATHEW,MANNANPARAMBIL HOUSE, NALOOR NADU VILLAGE,PULIKKAD DESOM, MANANTHAVADY TALUK,WAYANAD,PIN-673570. BY ADV SRI.SHAKTHI PRAKASH FOR R1 BY ADV.PRANCHAND FOR R2

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THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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EX.SA NO. 12 OF 2018

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JUDGMENT

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Dated this the 5^th day of March, 2024

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This Execution Second Appeal has been filed under Section 100 read with Order XXI Rule 58(4) & 103 of the Code of Civil Procedure, 1908, by the claim petitioner, challenging the decree and judgment dated 18.08.2018 in A.S.No.50/2015 on the files of the Sub Court, Sulthan Bathery and also the order dated 08.07.2015 in E.A.No.52/2013 in E.P.No.9/2012 in O.S.No.536/2002 on the files of the Munsiff’s Court, Mananthavady. The respondents herein are the decree holder as well as the judgment debtor.

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Heard the learned counsel for the appellant on admission. No representation for the respondents. Perused the verdicts under challenge.

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I shall refer the parties in this execution second appeal with reference to their status before the trial court. The appellant will be referred as “claim petitioner” and the

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EX.SA NO. 12 OF 2018

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respondents will be referred as “decree holder” and “judgment debtor”.

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The appeal stands admitted on raising the following substantial question of law:

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“ Whether the decree holder could claim more amount than the decree debt, in a case, where statutory charge for the decree debt alone is available?”

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5. As on 13.02.2024, this Court passed an interim

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order as under:

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“The learned counsel for the appellant, after arguing in detail as regards the grievance of the appellant, submits that the appellant is ready to discharge the liability covered by the decree debt in full. Since there is a statutory charge under Section 55(6)(b) of the Transfer of Property Act and the stage of the execution is pre-sale of the property and sale not effected, as an interim direction, the appellant herein is directed to deposit the entire decree debt along with interest to the satisfaction of the execution court within a period of 14 days with notice to the decree holder

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EX.SA NO. 12 OF 2018

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and file memo before this Court immediately on deposit.

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2. The execution court is directed to receive the full decree debt along with interest as on the date of deposit and if the decree holder is ready to accept the decree debt, entrust the same to the decree holder and close the execution petition after recording full satisfaction and recording discharge of the statutory liability over the property in dispute. If the decree holder is not ready to accept the decree debt, keep the same in the custody of the court by effecting deposit as per law and the further proceedings in the execution petition shall be stayed, subject to deposit as directed, till 28.02.2024.

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Post on 28.02.2024 for further orders.”

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In obedience to the interim order, the learned

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counsel for the claim petitioner placed daily case status, regarding EP No.9/2012 in OS No.536/2002 on the files of the Munsiff Court, Mananthavadi, wherein it is stated that the claim petitioner deposited Rs.1,20,017/- (Rupees one lakh twenty thousand and seventeen only) before the trial Court.

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EX.SA NO. 12 OF 2018

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Since the decree holder's appearance could not be secured,

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the case now stands posted to 18.03.2024.

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Insofar as the claim of the decree holder is concerned, the same is confined to the decree debt alone, on the basis of a statutory charge created in respect of a property which, in fact, sold by the Judgment Debtor to a third party and in turn, the third party sold the same in favour of the claim petitioner. Therefore, the decree holder could not claim anything more than that of the decree debt, charged over the property, now in the name of the claim petitioner. Since the entire decree debt submitted deposited, the property to be adjudged as free from charge.

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Holding so, this execution second appeal stands allowed. The right claimed by the claim petitioner in respect of the property scheduled in the claim petition is declared, subject to discharge of the statutory liability based on the statutory charge. Since Rs.1,20,017/- has already been

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EX.SA NO. 12 OF 2018

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deposited, the execution court is directed to record full satisfaction of the decree, if the entire decree debt is deposited and if it is found by the execution court that any amount more than Rs.1,20,017/- is outstanding towards the decree debt, the same shall also be paid by the claim petitioner, without fail, will be ordered by the execution court.

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All interlocutory orders stand vacated and all interlocutory applications pending in this execution second appeal stand dismissed.

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Registry shall inform this matter to the trial court as well as the appellate court forthwith.

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Sd/A. BADHARUDEEN JUDGE

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nkr

Keloth Reena v. Safiya

Case brief

What is this about?

What did the court decide?

Keloth Reena v. Safiya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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