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2023 Supreme(Online)(KER) 11609
HIGH COURT OF KERALA
BASANT BALAJI, J
SAKTHANKURIES AND LOANS – Appellant
Versus
AANANDAKUMAR – Respondent
Ex.FA 8 2018
Sri.G.SREEKUMAR (CHELUR), LAL K.JOSEPH, V.S.SHIRAZ BAVA
A bonafide purchaser for valuable consideration is protected against subsequent claims if acquisitions are devoid of encumbrances at the time of purchase.
Headnote:
CPC - Property Dispute - Order 21 Rule 58, Section 151 CPC - The court upheld the claim of the petitioner as a bonafide purchaser, emphasizing the absence of encumbrances on the date of purchase, thereby vacating prior attachments.
Fact of the Case:
The appellant contested a claim petition asserting that the property was attached after the claimant's purchase, questioning the validity of the attachment based on a prior mortgage issued before the sale to the claimant.
Finding of the Court:
The court concluded that the claimant was a bonafide purchaser as he obtained an encumbrance certificate indicating no encumbrance on the property at the time of the transaction, justifying the lifting of the attachment.
Issues: Whether the learned Sub Judge's order lifting the attachment on the property was justified, considering prior mortgages and the claimant's status as a bonafide purchaser.
Ratio Decidendi: The claimant's legitimate purchase rights were upheld based on the timing of the purchase relative to the attachment, demonstrating protection under legal provisions for bona fide purchasers.
Final Decision: The appeal is dismissed, affirming the order to vacate the attachment.
JUDGMENT
(Dated this the 12th day of October 2023)
The appellant is the first respondent in E.A.No.989 of 2013 in E.P.No.293 of 2011 in O.S.No.1604 of 2008 on the files of the Principal sub Court, Thrissur. The first respondent was the claim petitioner, and respondents 2 and 3 were the judgment debtors.
2. E.A. No.989 of 2013 was filed by the first respondent under Order 21 Rule 58 read with section 151 of CPC. The case of the claim petitioner was that 33 cents of property in Sy.No.358/4 of Koorkanchery village was purchased by the petitioner as per sale deed No.3051/2007 of SRO Thrissur on 11.4.2007. The appellant filed the original suit against respondents Nos.2 and 3 for realisation of money. In the said suit, IA No.8408/2008 was filed by the appellant to attach 33 cents of property initially owned by 3rd respondent. The attachment was effected by an order dated 15.11.2008. It is the case of the claim petitioner that he purchased the property from the 2nd respondent for a sum of Rs.55 lakhs before the attachment was effected on 15.11.2008. After the purchase, he is in possession and enjoyment of the property on the date of filing of the suit. The 2nd respondent had no right or interest on the date of filing of the suit. Since the purchase was on 11.4.2007 and the attachment has come into effect only on 15.11.2008, the claim petitioner filed the petition.
3. The appellant/decree holder filed an objection stating that the original suit was filed against respondent Nos.2 and 3 and one K G Udayan. The suit was decreed on 28.11.2010 as per the settlement arrived at between the parties the defendants agreed to pay the plaintiff jointly and severally a sum of Rs.7,62,600/- together with interest at 6% per annum on the principal amount of Rs.4,80,000/- from the date of the suit till realisation. Six months time was granted to the defendants to pay the decree amount. I.A.8408 of 2008 was filed by the plaintiff to attach the scheduled property to secure the decree, owned and possessed by the 2nd respondent. The application was allowed on 15.11.2008. The case of the appellant/decree holder is that even before the attachment of the property by the court, there was a mortgage in favour of the decree holder as security for the amount in a kuri on 25.1.2001. Since the kuri was defaulted, O.S.No.2955 of 2008 was fled before the III Additional Munsiff’s court, and the suit was decreed in favour of the appellant, and thereafter E.P.No.849 of 2011 was filed, and steps were taken to sell the property in auction. Therefore, any document executed between the claim petitioner and the 2nd respondent is not binding on the appellant.
4. Though notice was served on respondent Nos.2 and 3, it returned with the endorsement ‘left’, and thereafter, service of notice was completed by affixture. In the execution court also, respondent Nos.2 and 3 were set ex-parte. The claim petitioner was examined as PW1, and Exts.A1 and A2 were marked on his side. There was no oral evidence on the side of the decree holder, but marked Ext.Nos.B1 to B3. Ext.A1 is the sale deed in favour of the claim petitioner, and Ext.A2 is the encumbrance certificate dated 27.9.2008 of SRO Thrissur. Ext.B1 certified copy of the mortgage deed No.3171/01 of SRO Thrissur. Ext.B2 is another encumbrance certificate regarding the same property dated 14.11.2012, and Ext.Nos.B3 and B3(a) are the certified copies of the decree and judgment in O.S. No.2955 of 2008 of the Munsiff’s court, Thrissur, respectively. The learned sub-judge allowed the claim petition, and the attachment was vacated. Aggrieved by the order of the execution court in E.A.No.989 of 2013, this Ex.F.A is filed.
5. Heard Sri Sreekumar G. Chelur for the appellant and Shri Lal P Jose for the respondents.
6. The counsel for the appellant submits that even though the attachment ordered in I.A. No. 8408 of 2008 in O.S No.1604 of 2008 is on 15.11.2008 and the sale deed in favour of the claim petitioner is on 11.4.2007, there was a prior mor
