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2023 Supreme(Ker) 767
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Saboora, W/o. M.A. Habeeb – Appellant
Versus
Omana – Respondent
EX.SA No. 14 of 2023
Decided on : 17-11-2023
Advocate Appeared:
For the Appellant : KALA T.GOPI, NISHITHA BALACHANDRAN, SAJEEVAN KURUKKUTTIYULLATHIL, VISHNU PRABHAKAR V.S., THARISH MUHAMMED
Point of Law: Order XLII Rule 2 provides power of Court to direct that appeal be heard on question formulated by it.
Headnote:
Code of Civil Procedure, 1908 - Order XXI Rule 97, Order XLII Rule 2, Section 47, 64, 65, 100 – Constitution of India, 1950 – Article 133(1)(a) – Second Appeal - Land - Right or authority over building - Appellant filed petition contending that decree holder did not have any right or authority over plaint schedule building and therefore claim petitioner could not be evicted therefrom since she was a bona fide purchaser of land – In order to admit and maintain Second Appeal, substantial question of law necessarily to be formulated by High Court within mandate of Order XLII Rule 2 Read with Section 100 of C.P.C. (Para 16)
Finding of the Court :
Legislature has chosen not to qualify scope of “substantial question of law” by suffixing words “of general importance” as has been done in many other provisions such as S.109 of Code or Art.133(1)(a) of Constitution - Substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance - As such, second appeal cannot be decided on equitable grounds and conditions mentioned in Section 100 read with Order XLII Rule 2 of C.P.C. must be complied to admit and maintain a second appeal - No substantial question of law arises in this matter to be decided by admitting this appeal.
Result: Appeal dismissed.
JUDGMENT :
This Second Appeal is at the instance of the petitioner in E.A.No.2/2019 in E.P.No.256/2011 in O.S.No.965/2001 on the files of the Principal Munsiff, Alappuzha. The respondents are the decree holder as well as the judgment debtors.
2. Heard the learned counsel for the appellant on admission.
3. I shall refer the parties in this appeal as `claim petitioner’, `decree holder' and `judgment debtor’ hereafter for easy reference.
4. Perused the verdicts under challenge and the documents placed by the learned counsel for the claim petitioner.
5. The claim petitioner, who is the appellant herein, filed petition under Order XXI Rule 97 r/w Section 47 of the Code of Civil Procedure (`C.P.C' for short hereafter) contending that the decree holder did not have any right or authority over the plaint schedule building and therefore, the claim petitioner could not be evicted therefrom since she was a bona fide purchaser of 1.25 Ares of land comprised in old Survey No.556/13 of Alappuzha village as per sale deed No.4881/14 of Alappuzha, S.R.O, dated 30.12.2014. The case of the petitioner as dealt in paragraph 1 of the order in E.A.No.2/2019 dated 27.07.2021 is as under:
“The petitioner is a bonafide purchaser of 1.25 Ares of land comprised in old Sy.556/13 in Alappuzha West Village vide sale deed No.4881/14 of S.R.O, Alappuzha dated 30.12.2014. The above property was purchased by the petitioner after verifying the title documents, encumbrance certificate and other relevant records. At the time of purchase of the above property, the same was mortgaged with the Kerala State Housing Board and later released the documents to the petitioner. Petitioner has constructed a residential house in the said property by spending more than Rs.30,00,000/-after demolishing the very old dilapidated building which is numbered as AMCW33/959. The petitioner is the absolute owner and in possession of the said property and paying tax in thandapper account number 27648. This property along with the residential building is mortgaged by the petitioner with the Alappuzha District Co-operative Bank and availed a bank loan. Thereafter the petitioner has realised that an execution proceedings is pending before the Munsiff's Court, Alappuzha as E.P.No.256/2011 in O.S.956/2001. Immediately she contacted a lawyer in July 2015 and entrusted to file a claim petition. Thus the claim petition as E.A.189/2015, was filed but unfortunately the said petition was dismissed for default. Against which, application for restoration as E.A.155/2018 along with E.A.154/18 for condoning the delay in filing E.A.155/2018 was filed. Those petitions are pending consideration. An Amin appointed from this court visited the property on 16.06.2018, then the petitioner came to know about the dismissal of the claim petition. Then petitioner filed a Writ Petition as O.P(C).No.1500 of 2018 and obtained stay of all further proceedings in the above E.P. Later after hearing both sides the OP was dismissed on 23.07.2018. The building bearing No.AMCW 33/782 which belonged to the judgment debtor was attached by the decree holder. The said building is demolished and constructed a new building as AMCW 33/959. The attached building is not in existence and also the said building is mortgaged with the Alappuzha District Co-operative Bank Ltd. For the housing loan availed by the husband of the petitioner for the completion of the construction of the petition schedule building. The petitioner stood as the guarantor to the said loan. The court sale affected in the above execution proceedings is not in the petition schedule building owned and possessed by the petitioner. Hence the decree holder has got no right or authority over the petition schedule building. If the petitioner is evicted from the petition schedule building, she will be put to irreparable loss and injury. Hence prayed for excluding the petition schedule building AMCW 33/959 from further proceedings.”
6. The decree holder resisted the contention of
