George Thomas K. v. Sathya Deepam Kuries and Loans Pvt. Ltd

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944 ``` ## **`OP(C) NO. 1649 OF 2019`** ## **`OS 1662/2002 OF II ADDITIONAL MUNSIFF COURT ,THRISSUR`** ## **`PETITIONER:`** ``` GEORGE THOMAS K. AGED 52 YEARS S/O K.V.THOMAS,KOLENGADAN HOUSE, MARATHAKARA.P.O,THRISSUR-680306. ``` ``` BY ADV GEORGE ABRAHAM ``` ## **`RESPONDENT:`** ``` SATHYADEEPAM KURIES AND LOANS PVT. LTD CHEMBUKAVU,COLLEGE ROAD,DESOM, THRISSUR-680001. ``` ``` BY ADV SRI.MAHESH V.MENON ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`OP(C) NO. 1649 OF 2019 2`** **Dated this the 10[th] day of November, 2022** ## **JUDGMENT** Confronted with Ext.P6 order passed in E.A. No.1087/2017 in E.P. No.1829/2004 in O.S. No.1662/2002 of the Court of the II Additional Munsiff, Thrissur, the judgment debtor has filed the original petition. The respondent is the decree holder. 2. The antecedent facts leading to Ext.P6 order, in a narrow compass, are: the respondent has laid the decree passed in O.S. No.1662/2002 to execution by filing E.P. No.1829/2004. As the petitioner could not pay off the entire decree debt, the respondent proceeded against the properties of the petitioner and purchased the same in the court auction conducted on 8.12.2006. Then, the respondent filed E.A. ## **`OP(C) NO. 1649 OF 2019 3`** No.800/2008 to effect the delivery of the property. On receipt of the notice in the said application, the petitioner approached the respondent and paid off the entire decree debt. Consequently, the respondent did not take delivery of the property. The respondent assured the petitioner that they would take steps to set aside the sale. Believing the words of the respondent, the petitioner did not take any action. Later, on perusing the encumbrance certificate of the property, it was found that the sale was reflected in the encumbrance. Accordingly, the petitioner filed E.A. No.1087/2017, to set aside the sale certificate. However, the court below, by the impugned Ext.P6 order, dismissed the application. Ext.P6 is improper, untenable and irregular. Hence, the original petition. 3. Heard; Dr.George Abraham, the learned counsel appearing for the petitioner and Sri. Mahesh V. Menon, the learned counsel appearing for the respondent. ## **`OP(C) NO. 1649 OF 2019 4`** 4. Sri. Mahesh V. Menon, on instructions, submitted that the assertions in the original petition are not disputed by the respondent. The petitioner has paid the entire decree debt due to the respondent and they do not have any objection in the sale certificate being set aside. 5. In a case of identical circumstances, this Court in O.P.(C)No.3869/2011, relying on the decision of the Honourable Supreme Court in Sree Jain Swetambar Terapanthi Vid (S) v. Phundan Singh and Others [AIR 1999 SC 2322], held as follows: “9. The Supreme Court in the above cited decision was considering an order of injunction passed by the High Court though not in accordance with the provisions of law. The Supreme Court referred to various decisions and held: “From the above discussion, the principle that emerges is that where the High Court has granted some relief by way of social justice or on equitable grounds without violating the rights of other parties, though in law such relief was not permissible, the Supreme Court would not interfere in its discretionary jurisdiction under Article 136 if the order under appeal advances ## **`OP(C) NO. 1649 OF 2019 5`** the cause of justice and if it is just and equitable so to do.” 10. In the present cases, no question of social justice is involved. But, on equitable grounds I am inclined to grant relief to the respondent so far as setting aside of the sale is concerned. Such a course is necessary to grant relief to the petitioners also pursuant to the settlement in the Adalath. Granting relief in the circumstances would not affect the right of either of the parties. In that situation though, grant of such a relief is not strictly provided by the Code, I am inclined to invoke the power under Article 226 of the Constitution of India, set aside sale of properties of respondent - State in both the execution proceedings and permit petitioners to withdraw the amount in deposit. So far as the balance amount if any payable to the petitioners in each case is concerned, respondent has to deposit such amount if any in the executing court within a period of four (4) months from this day failing which it will be open to the petitioners to realise the balance amount if any by way of execution of the award of the Adalath.” 6. Following the same principles in the above judgment and the law laid down by the Hon'ble Supreme Court in the aforecited decision, I am of the firm view that the petitioner is entitled for the very same benefit. ## **`OP(C) NO. 1649 OF 2019 6`** 7. On a consideration of the peculiar facts and circumstances of the case, the law laid down by this Court in the above case of identical factual situation, and the submissions made by the respective counsel appearing for the parties, I am inclined to exercise the power of superintendence of this Court under Article 227 of the Constitution of India and interfere with Ext.P6 order, and set aside the sale, which will do complete justice to both sides and encourage harmonious settlement of disputes. In the result, the original petition is allowed in the following manner:- (i) Ext.P6 order is set aside. (ii) E.A. No.1087/2017 is allowed. (iii) The sale certificate issued in favour of the respondent in E.P. No.1829/2004 in O.S. No.1662/2002 is set aside. (iv) The court below shall communicate this to the concerned revenue judgment statutory ``` OP(C) NO. 1649 OF 2019 7 ``` authorities, who shall make suitable corrections in the revenue records. **Sd/-** **C.S.DIAS, JUDGE** rmm09/11/2022 ## **`OP(C) NO. 1649 OF 2019 8`** ## **`APPENDIX OF OP(C) 1649/2019`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1TRUE COPY OF THE RECEIPTS ISSUED BY THE COUNSEL FOR THE DECREE HOLDER. ``` ``` EXHIBIT P2TRUE COPY OF THE AUCTION NOTICE ISSUED BY THE HON'BLE MUNSIFF COURT,THRISSUR. ``` ``` EXHIBIT P3TRUE COPY OF THE PETITION FILED BY THE 1ST RESPONDENT,SEEKING PERMISSION TO PARTICIPATE IN THE AUCTION. ``` ``` EXHIBIT P4TRUE COPY OF THE PETITION FILED BY THE DECREE HOLDER DATED 7/3/2008. ``` ``` EXHIBIT P5TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 10/2/2016. ``` ``` EXHIBIT P6TRUE COPY OF THE ORDER OF II ADDITIONAL MUNSIFF COURT THRISSUR IN E.A.NO.1087/17 IN E.P.NO.1829/04 IN O.S.NO.1662/2002/ ```