Jose K. Varghese v. K.K. Mathew and others (Ex.FA Nos.3/2018 & 26/2020) against OS 56/2007, Sub Court, Mavelikkara

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 9[TH] DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943** **EX.FA NO. 3 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OS 56/2007 OF SUB COURT,** ## **MAVELIKKARA, ALAPPUZHA** ## **APPELLANT/PETITIONER:** **JOSE K. VARGHESE AGED 62 YEARS S/O.PHILIPOSE, KILIYIETHU PUTHEN VEEDU, KAYAMKULAM P.O., CHERAVALLY MURI, KAYAMKULAM VILLAGE.** **BY ADVS. SRI.BABU KARUKAPADATH SRI.E.M.ABDUL KHADER SMT.AMRIN FATHIMA SRI.K.M.FAISAL KALAMASSERY SRI.MITHUN BABY JOHN SRI.RAHUL ROY SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR** ## **RESPONDENTS/COUNTER PETITIONERS:** ## **1 K.K.MATHEW** - **AGED 74 YEARS, S/O.KOSHY, KOCHALUMMOOTTIL HOUSE, HOUSE NO.CNRA-18, CHEMPAKASSERY NAGAR, PATTAM P.O., ULLOOR VILLAGE, THIRUVANANTHAPURAM, PIN-695004.** ## **2 G.GOPALAKRISHNA PILLAI** - **AGED 76 YEARS, S/O.GOVINDA PANICKER, KOICKAL KALATHIL, MEENAMPALLY MURI, PATHIYOOR P.O., PERINGALA VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT, PIN-690508. (DIED)** ## **3 ASHRAFF PULIMOOTTIL HOUSE, KRISHNAPURAM, OACHIRA, KOLLAM DISTRICT, PIN-690525.** ## **ADDL.R4 CHANDRIKA,** **AGED 70 YEARS W/O.G.GOPALAKRISHNAN PILLAI, KOICKAL KALATHIL,** Ex.FA Nos.3/2018 & 26/2020 2 **MENAMPALLY MURI, PATHIYOOR.P.O., PERINGALA VILLAGE, MAVELIKARA TALUK, ALAPUZHA - 690508.** **ADDL.R5 ARUN GOPALAKRISHNAN, AGED 47 YEARS AGED 47 YEARS, S/O.GOPALAKRISHNAN PILLAI, KOICKAL KALATHIL, MENAMPALLY MURI, PATHIYOOR.PO.,** **PERINGALA VILLAGE, MAVELIKARA TALUK, ALAPUZHA - 690508.** ## **ADDL.R6 ANJANA RAJESH, AGED 43 YEARS** **AGED 43 YEARS, D/O.GOPALAKRISHNAN PILLAI, KOICKAL KALATHIL, MENAMPALLY MURI, PATHIYOOR.P.O., PERINGALA VILLAGE, MAVELIKARA TALUK, ALAPUZHA- 690508.** **ADDITIONAL RESPONDENTS 4 TO 6 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 2ND RESPONDENT AS PER ORDER DATED 09/09/2021 IN I.A.2443/2018 IN EX.FA 3/2018.** **R1 BY ADV.SRI.V.C.JAMES R3 BY ADV.SMT.J.HARIPRIYA** **R3 BY ADV.SRI.K.B.PRADEEP ADDL.R4 TO R6 BY ADV.SRI.B.MOHANLAL** **THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON 09.09.2021, ALONG WITH Ex.FA.26/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Ex.FA Nos.3/2018 & 26/2020 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 9[TH] DAY OF SEPTEMBER 2021 / 18TH BHADRA,** **1943** **EX.FA NO. 26 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OS 56/2007 OF SUB COURT, MAVELIKKARA, ALAPPUZHA** ## **APPELLANT/PETITIONER:** **JOSE K.VARGHESE AGED 68 YEARS S/O.PHILIPOSE,KILIYIETHU PUTHEN VEEDU, KAYAMKULAM.P.O,CHERAVALLY MURI, KAYAMKULAM VILLAGE.** **BY ADVS. BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR SMT.ARYA RAGHUNATH SMT.VAISAKHI V. SRI.T.M.MUHAMMED MUSTHAQ SHRI.UNAIS K.P.** ## **RESPONDENTS/COUNTER PETITIONERS:** **1 K.K.MATHEW, AGED 76 YEARS, S/O.KOSHY,KOCHALUMMOOTTIL HOUSE, HOUSE NO.CNRA-18,CHEMPAKASSERY NAGAR, PATTAM.P.O, ULLOOR VILLAGE,THIRUVANANTHAPURAM, PIN-695004.** Ex.FA Nos.3/2018 & 26/2020 4 - **2 G.CHANDRIKA, AGED 70 YEARS, W/O.LATE G.GOPALAKRISHNA PILLAI, KOICKAL KALATHIL,MEENAMPALLY MURI,PATHIYOOR.P.O, PERINGALA VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT,PIN-690508.** **3 ARUN GOPALAKRISHNAN, AGED 47 YEARS S/O LATE G.GOPALAKRISHNAN PILLAI, KOICKAL KALATHIL,MEENAMPALLY MURI, PATHIYOOR.P.O,PERINGALA VILLAGE, MAVELLIKKARA TALUK, ALAPPUZHA DISTRICT, PIN-690508.** **4 ANJANA RAJESH, AGED 43 YEARS, D/O.LATE G.GOPALAKRISHNA PILLAI, OICKAL KALATHIL,MEENAMPALLY MURI, PATHIYOOR.P.O,PERINGALA VILLAGE, MAVELLIKKARA TALUK, ALAPPUZHA DISTRICT, PIN-690508.** ## **5 ASHRAFF, PULIMOOTTIL HOUSE, KRISHNAPURAM, OACHIRA, KOLLAM DISTRICT,PIN-690525.** **R1 BY ADV. SRI.V.C.JAMES R2 & R4 BY ADV.SRI.B.MOHANLAL** **THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON 09.09.2021, ALONG WITH Ex.FA.3/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Ex.FA Nos.3/2018 & 26/2020 5 ## **JUDGMENT** A money decree against one G.Gopalakrishna Pillai sought to be executed against his widow and children and also against a stranger, the claimant under Rule 58 of Order XXI C.P.C. (Order XXXVIII Rule 8). The suit was instituted for recovery of money almost four years after the sale deed in favour of the claimant executed by the defendant (sale deed No.63/2003 dated 7.1.2003) and after the passing of the decree, the said property sought to be proceeded against by initiating execution for the sale of the said property for that purpose and the property was attached before judgment at the trial stage. The claim petition filed under Order XXXVIII Rule 8 C.P.C (to be adjudicated under Rule 58 of Order XXI), was not pressed Ex.FA Nos.3/2018 & 26/2020 6 into service under a mistaken impression. Consequently it was dismissed as not pressed. Thereon two other applications were preferred under Order XXI Rule 97 C.P.C. at the execution stage. Both the said applications were dismissed as premature by the execution court against which the claimant/obstructor came up in two appeals. 2. The claimant obtained the property under a valid sale deed of the year 2003 even four years prior to the institution of the suit. It is a suit for recovery of money and there is no charge created over the said property either prior to or subsequent to the suit. It seems to be so unfortunate that the said property owned by a stranger was sought to be attached for sale in execution of a money decree against the prior owner of the property. The fact that the property was sold Ex.FA Nos.3/2018 & 26/2020 7 to the claimant four years prior to the suit was not even taken into consideration by the execution court but the applications under Order XXI Rule 97 C.P.C. were dismissed as premature on the reason that the sale conducted was so far not confirmed and no delivery was ordered. It is now settled that an application under Order XXI Rule 97 C.P.C. can be maintained even prior to the order of delivery in furtherance of court sale. As such the dismissal of the said applications cannot be sustained and same are liable to be set aside and I do so. 3. Yet another relevant fact was also brought to the notice of this Court which is illustrative of how things are going on in the hands of a counsel who was entrusted with the job of protecting the interests of claimant. The claim petition under Order XXXVIII Rule 8 Ex.FA Nos.3/2018 & 26/2020 8 C.P.C. was not pressed into service by the counsel under a mistaken impression and a wrong notion based on a decision rendered by a Division Bench of this Court in **Rajan, Alias Rajan Gopinathan v. Dr.D.Jayashree Nayar & Another [2010(1)KLT 142]** . What is dealt under the said decision is the jurisdiction of execution court to adjudicate a claim petition under Section 53 of Transfer of Property Act. But under a mistaken impression and wrong notion, the said application was not pressed into service on account of the decision rendered by the Division Bench in **Rajan's case (supra)** . Further the legal position laid down in that case was overruled by a Full Bench of this Court in **Verizon Builders and Developers** . **Ltd. v. Jyothi Susan John [2019(1) KLT 100]** 4. The well known principle of - “ _Ignorantia juris non-excusat”_ cannot be Ex.FA Nos.3/2018 & 26/2020 9 applied when there is a fatal inadvertent mistake committed by the counsel in not proceeding with the claim petition. The act of counsel under an inadvertent mistake cannot be a ground to deny or to curtail the right, title and interest acquired over an immovable property. Hence the action of the counsel would stand vitiated. 5. Yet another ground also raised whether it is permissible to agitate a ground available under Order XXI Rule 97 C.P.C. in view of the dismissal of earlier application under Order XXI Rule 58 C.P.C. There is no adjudication as mandated under Order XXI Rule 58 C.P.C. on the application under Order XXXIII Rule 8 C.P.C., hence the question of _res judicata_ would not come into play. The claimant/the owner of the property can very well maintain an application Order XXI Rule 97 Ex.FA Nos.3/2018 & 26/2020 10 C.P.C. since the dismissal of the application was under an inadvertant mistake on the part of the counsel, hence vitiated and cannot be sustained. The claim petition was not pressed into service due to an inadvertent mistake by the counsel under a wrong impression and due to lack of proper understanding to the extent of making it unconscionable. Hence by exercising the power under Rule 33 of Order XLI C.P.C. and to avoid grave injustice and miscarriage of justice, the order is hereby set aside by restoring the claim petition (under Order XXXVIII Rule 8 C.P.C.) to the file of execution court to be dealt under Order XXI Rule 58 C.P.C. and to decide the claim. It is also permissible to consider a claim petition which was preferred in the trial stage even at the execution stage before its culmination since it is an Ex.FA Nos.3/2018 & 26/2020 11 independent parallel proceedings which would go along with the suit matter will its culmination by execution. The legal position was settled by this Court in **Gopalakrishna Pillai v. Syam Kumar and another [2017(1) KHC** . **816]** 6. The orders in both the applications under Order XXI Rule 97 C.P.C. are set aside and the matter is remanded back to the trial court. The same shall be taken into consideration only after the disposal of the claim petition under Order XXXVIII Rule 8 C.P.C. in accordance with the mandate under Order XXI Rule 58 C.P.C. and for that purpose, the order dismissing the claim petition (under Order XXXVIII Rule 8 C.P.C) is hereby set aside and the claim petition is restored to the file of execution court with a direction to proceed with the said application and to Ex.FA Nos.3/2018 & 26/2020 12 decide the same on merits, for which the parties shall appear before the execution court on 05.10.2021. Both the appeals are allowed accordingly. **Sd/-** **P.SOMARAJAN** **JUDGE** SPV