Ex.S.A No.14/2023 (Execution Second Appeal)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945 EX.SA NO. 14 OF 2023** **AGAINST THE ORDER DATED 25.07.2023 IN AS 41/2021 OF DISTRICT & SESSIONS COURT, ALAPPUZHA IN THE ORDER DATED 27.07.2021 IN E.A.NO.2/2019 IN E.P.NO.256/2011 IN OS 965/2001 OF PRINCIPAL MUNSIFF COURT,** ## **ALAPPUZHA** ## **APPELLANT/APPELLANT/PETITIONER:** SABOORA AGED 58 YEARS W/O. M.A. HABEEB, KOMPATHANPARMBIL HOUSE, THIRUVAMPADY PO, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, PIN – 688002. BY ADVS. KALA T.GOPI NISHITHA BALACHANDRAN SAJEEVAN KURUKKUTTIYULLATHIL VISHNU PRABHAKAR V.S. THARISH MUHAMMED ## **RESPONDENTS/RESPONDENTS/COUNTER PETITIONER:** 1 OMANA AGED 68 YEARS OMANA, D/O. PONNAMMA, THAIPARAMBIL HOUSE, THIRUVAMPADY PO, ALAPPUZHA WEST VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, (DECREE HOLDER), PIN – 688002. 2 _Ex.S.A No.14/2023_ 2 CHACKO JOSEPH AGED 74 YEARS W/O. CHACKO KOMBATHANPARAMBIL, VADACKAL MURI, ALAPPUZHA WEST VILLAGE, ALAPPUZHA DISTRICT, (ORIGINAL JUDGMENT DEBTOR)(DIED), PIN – 680002. 3 ELIYAMMA AGED 70 YEARS ELIYAMMA, W/O. CHACKO JOSEPH, KOMBATHANPARAMBIL, THIRUVAMPADY PO, ALAPPUZHA WEST VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, (LEGAL HEIR OF ORIGINAL JUDGMENT DEBTOR), PIN – 688002. THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 _Ex.S.A No.14/2023_ _**“C.R”**_ ## _**A. BADHARUDEEN, J.**_ _**================================** Ex.S.A No.14 of 2023_ _================================ Dated this the 17th day of November, 2023_ ## _**J U D G M E N T**_ 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 on appellant admission. 3. I shall refer the parties in this appeal as `claim petitioner’, `decree holder' and `judgment debtor’ hereafter for easy 4 _Ex.S.A No.14/2023_ 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_ 5 _Ex.S.A No.14/2023_ _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_ 6 _Ex.S.A No.14/2023_ _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_ 7 _Ex.S.A No.14/2023_ _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 the claim petitioner, as could be read out from paragraph 3 of the order in E.A.No.2/2019, as under: _“The respondent filed objection stating that the petition is not maintainable either in law or on facts. The petition is barred by law of limitation. The period of limitation for an application under Order XXI Rule 97 of the Code of Civil Procedure, it thirty days from the date of the resistance or obstruction under Article_ 8 _Ex.S.A No.14/2023_ _129 of the Limitation Act. Section 5 of the Limitation Act is not applicable to Order XXI of the Code. According to the petitioner, she obstructed the Amin on 14.06.2018, hence petition is barred by law of limitation. The petitioner has no locus standi to file a petition under Order XXI Rule 97 of the Code as E.A.189/2015 was filed by the petitioner. No affidavit is seen filed along with the application as contemplated in the statutory provisions. Petitioner is not a bonafide purchaser of the scheduled properties._ _The description of the scheduled properties without stating boundaries are vague and unidentifiable. The scheduled properties were attached on 19.11.2001 as per order in I.A.No.5661/2001. Hence the sale deed relied upon by the petitioner dated 30.12.2014 is against the terms and tenure of order of attachment. The sale deed relied upon by the petitioner is executed in collusion with the petitioner and judgment debtor. If the scheduled properties were mortgated with the Kerala State Housing Board at the time of purchase of scheduled properties it_ 9 _Ex.S.A No.14/2023_ _is fraudulent act which is neither binding on the decree holder nor the scheduled properties. The allegation that the petitioner has constructed a residential house in the scheduled property by spending more than Rs.30,00,000/- is not correct. No building was constructed by the petitioner. The petitioner has no right to mortgage the scheduled properties to the Alappuzha District Cooperative Bank. The petitioner was aware of the above suit and also the attachment order before the purchase of the scheduled properties. Petitioner is not having ownership over the petition schedule property. The proclamation for sale was published in the scheduled properties. So the petitioner had notce of public auction in court. All buildings and structures including the scheduled building was purchased by the decree holder as auction purchaser. The sale is confirmed and sale certificate is issued. Hence there is no merit in the contention of the petitioner that court sale effected in the above execution proceedings is not in respect of the scheduled building. The decree holder has every_ 10 _Ex.S.A No.14/2023_ _right and authority over the scheduled building by virtue of the court auction sale. No loss or injury will be caused to the petitioner as alleged if property is delivered. The petitioner in collusion with the judgment debtor is attempting to defeat the decree holder to obtain the fruits of the decree. Hence prayed for the dismissal of the petition.”_ 7. The execution court appraised the contention raised by the claim petitioner as well as the decree holder and recorded the evidence as that of PWs 1 to 5. DW1 was examined and Exts.B1 and B2 were marked on the side of the decree holder. Exts.C1 to C3 also were marked. Exts.X1 to X5 also were marked. Finally the execution court dismissed the petition after narrating the history of the case and also addressing the manner in which the present petition was filed. Even though an appeal was filed before the District Court, Alappuzha, the learned District Judge also dismissed the appeal. 11 _Ex.S.A No.14/2023_ 8. In this matter, at the time of admission, the learned counsel for the claim petitioner reiterated the contentions raised before the execution court as well as the appellate court to unsustain the same. 9. On perusal of the verdicts under challenge, Ext.B2 is the sale certificate issued from the execution court. It is discernible that sale in this case was conducted on 16.07.2015. Before settlement of proclamation as on 21.10.2014, encumbrance certificates and valuation certificate were produced and the judgment debtor was also appearing in the execution petition. Initially, execution petition was posted for sale on 21.11.2014 and the same stood adjourned since the presiding officer was on training. Thereafter, the sale was conducted on 16.07.2015. The present title deed relied on by the claim petitioner was executed in between 21.11.2014 and 16.07.2015, exactly on 30.12.2014. 12 _Ex.S.A No.14/2023_ Immediately on knowing the same, the petitioner filed E.A.No.189/2015 to set aside the sale. Virtually, the said petition was dismissed as not pressed. As I have already pointed out, in this matter, the suit was filed as early in the year 2001 and attachment was effected in 2001 itself. Thereafter decree was passed on 20.09.2003. The same was put in execution and the property attached was sold on 16.07.2015. Thus it is clear that the sale in favour of the claim petitioner effected on 30.12.2014 is after the attachment. 10. Now the questions crop up for consideration are: (1) What is the legal effect of a private sale in relation to a property under attachment by a court? (2) How far title of the purchaser in respect of an immovable property in court sale is legally protected? 11. It is in this context Sections 64 and 65 of the C.P.C 13 _Ex.S.A No.14/2023_ assume significance. Section 64 provides that private alienation of property after attachment to be void and Section 65 provides that purchaser's title to the property in court auction is absolute. Thus, in answer to the first question it is held that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment and subject to condition that nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment as provided under Section 64 of C.P.C. 12. Answering the second question, it is held that where immovable property is sold in execution of a decree and such sale 14 _Ex.S.A No.14/2023_ has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute, as per the mandate of Section 65 of C.P.C, subject to challenge against the same as provided under Section 47 and Order 21 of C.P.C. 13. Therefore, it is held that sale of the property sold in auction, which was attached at the time of institution of suit in the year 2001 by way of private alienation is hit by Section 64 and if so, the said sale is void. Further, Section 65 gives absolute title to the purchasers after court sale. Here, as already pointed out, initially the claim petition was filed and virtually the same was dismissed as not pressed since the claim petitioner not pressed the application for restoring the claim petition after condoning the delay in filing the restoration petition. However, at present the case of the claim petitioner is that after purchase of the property by her, 15 _Ex.S.A No.14/2023_ she had made constructions by spending Rs.30 lakh and therefore the claim petitioner has separate ownership over the building. In this connection, a commission was appointed and the Commissioner, who was examined as PW4, filed Ext.C1 report stating that the valuation of the property would come to Rs.86,904/- and the building is one constructed 10 years before. The execution court as well as the appellate Court appraised the commission report to find out whether the contention raised by the claim petitioner to the effect that she made constructions, as alleged, after the execution of the sale deed dated 30.12.2014 with reference to Ext.C1 and the evidence of PW4, the courts below found that since the construction reported by the commissioner was before 10 years, there is no reason to believe that the claim petitioner, who purchased the property on 30.12.2014, constructed the building after its purchase. 16 _Ex.S.A No.14/2023_ 14. Addressing this point, it is clear that, Ext.C1 report was prepared on 16.06.2000. If so, the construction is one made during 1990. Therefore, the story of construction canvassed by the claim petitioner was not at all established. Accordingly, the trial court found that even the claim petitioner is not even entitled for compensation. 15. The pertinent aspect to be noted in this regard is the status of the property at the time of purchase of the same by the claim petitioner. It is discernible from Ext.X3 that the judgment debtor executed mortgage deed in relation to the property in favour of Housing Board on 11.10.1999. Ext.X4 series are the applications submitted by the judgment debtor in this regard and Ext.X5 is the account statement in respect of the said loan. As per Ext.X5, liability to the Housing Board was cleared only on 31.12.2014 on the next day of execution of the title deed in the 17 _Ex.S.A No.14/2023_ name of the claim petitioner. The same would go to show that the claim petitioner purchased the property even without verifying the original title deed which, in fact, is in the custody of the Housing Board. If so, the inference is that the property which evidently mortgaged to Housing Board and the subject matter of attachment in this case was sold by the judgment debtor in favour of the claim petitioner and the same was purchased by the claim petitioner without ascertaining the details of the mortgage as well as other liabilities pertaining to the property. Therefore, the available materials would go to show that in order to defeat the decree holder's claim over the property, a sale deed was executed in between the judgment debtor and the claim petitioner, so as to avoid eviction and banking on the same after dismissal of the earlier claim petition as not pressed, the present claim petition being filed without any bona fides. In view of Section 64 of C.P.C 18 _Ex.S.A No.14/2023_ the title deed of the claim petitioner is void and the claim petitioner could not succeed in this matter as rightly found by the trial court and confirmed by the appellate court on certain other grounds which are not so material. In view of the matter, in this appeal, no substantial question of law arises to admit and maintain this appeal. 16. In order to admit and maintain the Second Appeal, substantial question of law necessarily to be formulated by the High Court within the mandate of Order XLII Rule 2 Read with Section 100 of C.P.C. 17. In this case, the learned counsel for the defendant failed to raise any substantial question of law warranting admission of the Second Appeal. Order XLII Rule 2 provides thus: ## _**“2. Power of Court to direct that the appeal be heard on the**_ _**question formulated by it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second_ 19 _Ex.S.A No.14/2023_ _appeal be heard on the question so formulated and it shall not be open to the defendant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 18. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be 20 _Ex.S.A No.14/2023_ allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 19. In the decision in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168], _**Nazir Mohamed v. J. Kamala and Others**_ reported in the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law, after referring the decision in_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722].**_ 20. In a latest decision of the Apex Court reported in [2023 21 _Ex.S.A No.14/2023_ ## (5) KHC 264 : 2023 (5) KLT 74 SC], _**Government of Kerala v. Joseph**_ , it was held as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court. We may only refer to_ _**Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]** (three – Judge Bench) wherein this Court observed as follows:_ _12. The phrase “substantial question of law”, as occurring in the amended S.100 is not defined in the Code. The word substantial, as qualifying “question of law”, means – of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a_ 22 _Ex.S.A No.14/2023_ _second appeal shall be heard need not necessarily be a substantial question of law of general importance._ 21. The legal position is no more _res-integra_ on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C, the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily 23 _Ex.S.A No.14/2023_ be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 22. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. 23. In the result, this appeal is found to be meritless and the same is dismissed _in limine_ . All interlocutory orders stand vacated and all interlocutory applications pending in the Second Appeal stand dismissed. _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_