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HIGH COURT OF KERALA
A. BADHARUDEEN, J
SUGUNANDA VILASOM SOCIETY NO.130/1985 – Appellant
Versus
ABHILASH BERLY – Respondent
Ex.SA 12/2023
Execution - Order 21 Rule 58 of CPC - Summary
Fact of the Case:
The appellant, as the decree holder, filed an appeal challenging the verdicts entered by the trial court and the Appellate Court. The claim petitioner filed a petition to declare the sale as null and void and to declare the sale certificate issued by the Court as null and void, on the ground of fraud.
Finding of the Court:
The court found that the claim petitioner is the absolute owner of the petition schedule property and declared the sale as null and void. The Appellate Court also dismissed the appeal by the decree holder.
Issues: The substantial questions of law formulated were whether a petition under Order 21 Rule 58 of CPC is maintainable after completion of sale and what is the remedy of a 3rd party in possession claiming independent right over the decree schedule property when he was sought to be dispossessed by the decree holder.
Ratio Decidendi: The court interpreted Order 21 Rule 58 of CPC and its proviso, emphasizing that a claim petition filed after completion of sale is not maintainable. It also discussed the remedy of a 3rd party in possession claiming independent right over the decree schedule property.
Final Decision: The second appeal succeeded, and the verdicts under challenge were set aside. The sale certificate issued in favor of the decree holder was held to be legal and valid, allowing the decree holder to proceed with the delivery of possession.
JUDGMENT
Dated this the 21st day of February, 2024 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:
1. Whether a petition under Order 21 Rule 58 of CPC is maintainable after completion of sale in view of the prohibition contained in the proviso (a) thereof?
2. What is the remedy of a 3rd 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, Whether the Courts below failed in appreciating the evidence while adjudicating the claim relied on Ext.A1 title deed of the claim petitioner ignoring Ext.A1 mortgage deed marked in O.S. No.46/2006?
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 insufÏcient, 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 sufÏcient 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
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