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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Sugunanda Vilasom Society No.130/1985 – Appellant
Versus
Abhilash Berly – Respondent
EX.SA No.12 of 2023
Decided on : 21-02-2024
Order 21 Rule 58 - Maintainability of petition after completion of sale - Order 21 Rule 97 - Remedy of 3rd party in possession - [Order 21 Rule 58, Order 21 Rule 97]
Fact of the Case:
The appellant filed an appeal challenging the verdicts entered by the trial court and the Appellate Court in a matter related to the sale of a property in execution of a decree. The claim petitioner filed a petition to declare the sale as null and void, which was adjudicated by the trial court and the Appellate Court.
Finding of the Court:
The trial court and the Appellate Court found in favor of the claim petitioner, declaring the sale as null and void and not binding upon the claim petitioner.
Issues: The substantial questions of law formulated were related to the maintainability of a petition under Order 21 Rule 58 of CPC after completion of sale, the remedy of a 3rd party in possession claiming independent right over the decree schedule property, and the failure of the courts to appreciate the evidence.
Ratio Decidendi: The court interpreted the provisions of Order 21 Rule 58 and Order 21 Rule 97 of CPC, emphasizing that a claim petition filed after completion of sale is not maintainable. It also clarified the remedy available to a 3rd party in possession and highlighted the importance of adjudicating objections under Rule 97 prior to dispossession.
Final Decision: The second appeal succeeded, and the verdicts under challenge were set aside. The court held that the sale certificate issued in favor of the decree holder is legal and valid, allowing the decree holder to proceed with the delivery of possession. The court also suggested settlement during the consideration of the delivery petition.
Key Points: - The judgment discusses maintainability of a claim petition under Order 21 Rule 58 CPC after sale completion and provisos (a) and (b) thereof. (!) (!) (!) - It analyzes the remedy for a 3rd party in possession under Order 21 Rule 97 CPC and cites Shreenath v. Rajesh and others regarding "any person" resisting delivery. (!) (!) - It holds that the sale certificate in favor of the decree holder is legal and valid and addresses delivery of possession, suggesting settlement during delivery petition. (!) (!) - The case references Anthony v. Kunjavarankutty Hajee regarding maintainability after sale and the interpretation of proviso to Order 21 Rule 58. (!) (!) - It explains that a petition under Rule 151 can be treated as under Rule 97, and that maintainability can proceed if conditions under proviso are satisfied. (!) (!) - The factual sequence includes a sale in execution, delivery petition, and a claim petition to declare sale null and void on grounds of fraud. (!) (!) (!) - The appellate court’s reversal and ensuing second appeal culminates in holding the sale certificate as legal and order to proceed with possession delivery. (!)
JUDGMENT :
This execution second appeal has been filed under order XXI read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging verdicts entered into by the trial court as well as the Appellate Court in A.S. No.62 of 2021 dated 20.06.2023 on the files of the Court of the Addl. District Judge-II, Alappuzha arose from the verdict in E.A. No.117/2019 in E.A. No.242/2018 in E.P. No.348/2016 in O.S. No.46 of 2006 dated 18.12.2019 on the files of the Sub Court, Alappuzha. The appellant is the decree holder, 1st respondent is the claim petitioner and respondents 2 to 4 are judgment debtors.
2. Heard both sides in detail. Perused the case records and verdicts under challenge.
3. I shall refer the parties in this appeal with reference to their status before the trial court. The appellant will be referred as “decree holder” and the respondents will be referred as “claim petitioner and judgment debtors”.
4. This appeal stands admitted by formulating the following substantial questions of law:
2. What is the remedy of a 3 rd party in possession claiming independent right over the decree schedule property, when he was sought to be dispossessed by the decree holder?
Incidentally, another simple question arises for consideration is,
5. In this matter, the suit was filed for realization of an amount of Rs.40,000/-as the principal amount along with the interest. The suit was decreed allowing the plaintiff to realize Rs.1,00,428/-along with interest at the rate of 6% per annum or the principal amount of Rs.40,000/-from the date of suit till realization by sale of the plaint schedule property and if the sale proceeds is insufficient, from the defendants and their assets.
6. Thereafter, the decree holder filed E.P. No.348/2016. During the execution proceedings, 3.5 cent form part of the plaint schedule property, which was found to be sufficient to realize the decree debt, was separated from the entire extent of mortgaged property and sold in execution. The sale was on 27.11.2017. The decree holder auctioned the plaint schedule property and on 29.01.2018 the sale was confirmed and E.P. was closed. The sale certificate was issued on 19.04.2018. Thereafter, the decree holder filed E.A. No.242/2018 for delivery. At this juncture, E.A. No.117/2019 has been filed by the claim petitioner to declare the sale as null and void and also to declare that the sale certificate issued by the Court as null and void, on the ground of fraud.
7. E.A. No.117/2019 is one filed under Section 151 of CPC. The learned Munsiff adjudicated the same after recording evidence. PWs 1 and 2 examined and Exts.A1 to A5 marked on the side of the petitioner. No evidence let in by the otherside.
8. Thereafter, the learned Munsiff found that the claim petitioner is the absolute owner of the petition schedule property. The learned Munsiff declared the sale as null and void and found that the same is not binding upon the claim petitioner.
9. Though, decree holder filed appeal vide A.S. No.62/21 before the Appellate Court, the Appellate Court also dismissed the same as per the judgment dated 20.06.2023.
10. The learned counsel for the decree holder/appellant vehemently canvased the legal position that as per Ext.A1 the original mortgage deed (hereinafter will be referred as the ‘mortgage deed’) marked in the suit, property having an extent of 17.40 Ares in Survey No.164/2020 and in Re survey No.228/4 was mortgaged by the executants of Ext.A1 title deed (hereinafter will be referred as ‘title deed of the claim petitioner’) relied on by the claim petitioner. The learned counsel for the decree holder/appellant read out the p
The main legal point established in the judgment is the interpretation of the provisions of Order 21 Rule 58 and Order 21 Rule 97 of CPC, emphasizing the maintainability of a claim petition after com....
For a claim under Order 21 Rule 58, there must be an attachment of the property in execution proceedings.
Court exercising jurisdiction under Section 47 or under Order 21 of CPC must not issue notice on application of a third party claiming right in a mechanical manner.
The executing court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order, which is to be treated as a decree. T....
Order 21 Rule 58(1) of CPC reads adjudication of claims to, or objections to attachment of, property.
The court reinforced that obstruction claims in execution proceedings must be heard to uphold rights, ensuring adherence to natural justice principles.
A claim under Order 38 Rule 10 of C.P.C is maintainable after the suit is decreed, and the attachment before judgment continues after the decree, adjudicable under Order 21 Rule 58 of C.P.C.
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