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2023 Supreme(Online)(KER) 31277
HIGH COURT OF KERALA
A. Muhamed Mustaque, SOPHY THOMAS, JJ
LATHAKUMARI – Appellant
Versus
SOBHANAKUMARI – Respondent
OP (FC) 224 2023
AKHIL VIJAY, SANTHOSH PETER P.N., ANOOP(K/1451/2003), M.S.SANDEEP SUDHAKARAN(K/000598/2018), ROHIT LOBO(K/000446/2022), JOSE EPHREM(K/000485/2023), JOBIN GRACE THOMAS(K/000699/2023)
The decree's clarity on the judgment debtor's 1/3 share execution was upheld, allowing for closure of conflicting execution applications.
Headnote:
Litigation - Execution Proceedings - Clarification of Shares - Court Decision Summary
Fact of the Case:
The case involves litigation concerning the execution of a decree related to a judgment debtor's 1/3 share in a property. Multiple applications were submitted after the auction sale, but both parties recognized that what was auctioned was the 1/3 share only.
Finding of the Court:
The court concluded that all parties agreed on the nature of the auctioned share being exclusively the 1/3 share of the judgment debtor, leading to the closure of execution applications and allowing for symbolic delivery of the same.
Issues: The primary issue revolved around the execution of the decree and the nature of the share that was sold in the auction.
Ratio Decidendi: The court held that there was no dispute regarding the share sold, thus affirming the auction's legitimacy and the necessity for clarification regarding the 1/3 share being the focus of the execution.
Final Decision: The court disposed of the petition, confirming the auction sale of 1/3 share and closing all execution applications.
J U D G M E N T
A.Muhamed Mustaque, J.
This is an unnecessary litigation, perhaps a contribution of the litigant or ignorance of the parties. The judgment debtor has only 1/3 share. Nobody disputes this. Multiple applications have been filed after the sale. The decree holder submits that he has got only 1/3 share. The other claimants also submit that what has been sold is the 1/3 share. That requires only a clarification. What was sold in the auction in execution is only the 1/3 share of the judgment debtor. Both parties affirm the same. Therefore, all the petitions before the execution court shall be closed recording that what was sold to the decree holder in auction was the 1/3 share of the judgment debtor. The execution court shall close all the execution applications after effecting symbolic delivery of 1/3 share. Parties are free to work out their remedy in regard to the undivided share in appropriate manner. This original petition is disposed of.
Sd/-
A.MUHAMED MUSTAQUE JUDGE Sd/-
SOPHY THOMAS JUDGE
APPENDIX OF OP (FC) 224/2023 PETITIONER’S EXHIBITS:
Exhibit P1 A TRUE COPY OF THE DECREE PASSED BY THE HONORABLE FAMILY COURT, KOTTAYAM AT ETTUMANOOR IN O.P. 61/2011 DTD 30/06/2012.
Exhibit P2 A TRUE COPY OF THE PETITION FILED IN E.P.
08/2013 DTD 30/11/2012.
Exhibit P3 A TRUE COPY OF THE ORDER OF THE HONORABLE COURT OF THE PRINCIPAL SUB JUDGE, KOTTAYAM DTD
27/07/2013 IN I.A. NO. 2530/2012 IN O.S.
408/2011.
Exhibit P4 A TRUE COPY OF THE PROPERTY SCHEDULE FILED BY THE PETITIONER ON 16/02/2015 IN E.P. 08/2013.
Exhibit P5 A TRUE COPY OF THE CLAIM PETITION FILED BY THE SECOND RESPONDENT IN E.A. 05/2018 IN E.P.
08/2013 BEFORE THE HONORABLE FAMILY COURT, PALA.
Exhibit P6 A TRUE COPY OF THE PETITION FILED BY THE SECOND RESPONDENT IN E.A. 09/2018 DTD 28/02/18 Exhibit P7 A TRUE COPY OF THE ORDER OF THE HONORABLE FAMILY COURT, PALA IN E.A. 09/2018 IN E.P.
08/2013 DTD 08/05/2018.
Exhibit P8 A TRUE COPY OF THE AUCTION CERTIFICATE DTD
08/01/2019 ISSUED AT THE HANDS OF THE HONORABLE FAMILY COURT, PALA IN E.P. 08/2013.
Exhibit P9 A CERTIFIED COPY OF THE AFFIDAVIT AND PETITION FILED BY THE FIRST RESPONDENT IN E.A. 1/2021 IN E.P. 08/2013 DTD 23/11/2021.
Exhibit P10 A CERTIFIED COPY OF THE OBJECTION PREFERRED BY THE PETITIONER IN E.A 01/2021 IN E.P. 08/2013 DTD 29/04/2022.
Exhibit P11 A CERTIFIED COPY OF THE PETITION FILED BY THE PETITIONER IN E.A. 04/2022 IN E.A. 01/2021 IN E.P. 08/2013 BEFORE THE HONORABLE FAMILY COURT, PALA DTD 13/10/2022.
Exhibit P12 A CERTIFIED COPY OF THE ORDER OF THE HONORABLE FAMILY COURT, PALA DTD 09/01/2023 IN E.A.
04/2022 IN E.A. 01/2022.
RESPONDENTS’ EXHIBITS: NIL
