Kochappan v. Thomas and Antony

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933** **CRP.No. 36 of 2009()** **--------------------** **E.P.NO.452/2004 IN OS.570/1993 of PRINCIPAL SUB COURT,IRINJALAKUDA** **....................** ## **PETITIONER(S): DECREE HOLDER:** **-----------------------------------------------------** **KOCHAPPAN, S/O. THOMAS, PATHIPARAMBIL HOUSE, MURINGOOR THEKKUMURI VILLAGE, KORATTY DESOM, MUKUNDAPURAM TALUK.** **BY ADV. SRI.T.N.MANOJ** ## **RESPONDENT(S): JUDGMENT DEBTORS:** **--------------------------------------------------------------** **1. THOMAS, D/O. DEVASSY, VITHAYATTHIL HOUSE, KOTTAPURAM DESOM, MURINGOOR THEKKUMURI VILLAGE, MUKUNDAPURAM TALUK.** **2. ANTONY, S/O. JOHN VALIYAVEETTIL HOUSE, KORATTY DESOM, MURINGOOR THEKKUMURI VILLAGE, MUKUNNADAPURAM TALUK.** **R1 BY ADV.SRI.KASHA K.MALAYAN R2 BY ADVS. SRI.K.A.ABDUL SALAM,** **SRI.K.RAMACHANDRAN, SRI.K.A.ABDUL SALAM.** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **CRP.NO.36/2009** ## **APPENDIX** **PETITIONER'S EXHIBITS:** **N I L** ## **RESPONDENT'S EXHIBITS:** **R2(A): COPY OF THE JUDGMENT DTD. 21/02/2004 IN A.S.NO.627/2003 PASSED** **BY THE 3RD ADDITIONAL DISTRICT COURT, THRISSUR.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------C.R.P. No.36 of 2009 -------------------------------------Dated this the 6[th] day of December, 2011.** ## **ORDER** This civil revision is in challenge of order dated 31.07.2008 in E.P.No.452 of 2004 in O.S.No.570 of 1993 of the court of learned Principal Sub Judge, Irinjalakuda. Petitioner obtained a decree for recovery of money against one Poulose on 30.01.1994, later set aside at the instance of the said original defendant. While the suit was pending, original defendant died and the 1[st] respondent, his father was impleaded as legal representative. 1[st] respondent filed additional written statement in the suit. Later it was withdrawn. That was followed by a decree in favour of petitioner and against assets of deceased defendant in the hand of the 1[st] respondent. In that suit, petitioner had attached property of the deceased original defendant before judgment. While so, the 2[nd] respondent filed a suit against the original defendant as O.S.No.598 of 1993, also for recovery of money and it is said that the very same property was placed under attachment in O.S.No.598 of 1993 and an exparte decree was passed against the original defendant on 08.12.1993. The 2[nd] respondent filed E.P.No.136 of 1995 on 30.03.1995. The original defendant/judgment debtor died and hence the execution petition was dismissed as not pressed on 28.06.1995. 2[nd] respondent filed a second execution petition on 30.06.1995 impleading all the legal representatives of the deceased defendant, the attached property was sold in execution on 16.08.1996 and purchased by the 2[nd] **CRP No.36/2009** 2 respondent. That sale was confirmed on 18.10.1996. Thereafter petitioner put the decree in O.S.No.570 of 1993 in execution by filing E.P.No.452 of 2004 praying that the above said property be sold and the decree debt be realised. That execution petition was dismissed by the impugned order. 2. It is contended by learned counsel for petitioner that the decree obtained by the 2[nd] respondent against deceased defendant in O.S.No.598 of 1993 is the result of fraud and collusion between 2[nd] respondent and deceased defendant and that proceedings in execution of that decree are also fraudulent and hence, there is no valid sale in favour of the 2[nd] respondent in execution of the decree in O.S.No.598 of 1993. It is contended that the order produced by petitioner in the trial court would show that on the application for attachment preferred by the 2[nd] respondent in O.S.No.598 of 1993 notice was not served on the original defendant and hence the attachment is void as held by the Full Bench of this Court in **Greater Cochin Development Authority v. Harrisons Malayalam Ltd. (2000 (2) ILR Kerala 551)** . Learned counsel has also referred to the evidence let in by petitioner in E.P.No.452 of 2004 to show that the decree in O.S.No.598 of 1993 is the result of fraud and collusion. Learned counsel argues that even in E.P.No.452 of 2004 it is open to the petitioner to show that the decree in O.S.No.598 of 1993 is obtained by fraud and collusion and that when a decree is challenged on the ground of fraud and collusion, direct evidence regarding such fraud and collusion may not be **CRP No.36/2009** 3 possible and the court have to consider the broad circumstances. In support of that plea reliance is placed on **Gram Panchayat, Naulakha v. Ujagar Singh and others (AIR 2000 SC 3272)** and in particular, observations in paragraph 7. 3. Learned counsel for the 2[nd] respondent contended that plea of fraud and collusion are not available to the petitioner as it has already been concluded in earlier proceedings initiated by him. It is contended that pursuant to the court sale in O.S.No.598 of 1993, petitioner filed application in that proceeding under Rule 90 of Order XXI of the Code of Civil Procedure (for short, “the Code”) to set aside the auction sale on the ground of fraud and collusion. Though on the ground of limitation, that application was dismissed. Later, petitioner filed O.S.No.1399 of 1997 challenging the decree in O.S.No.598 of 1993 and all proceedings taken pursuant to it on the ground of fraud and collusion and seeking relief based on that plea but the suit and the appeal arising therefrom were dismissed. In the circumstances, it is not open to the petitioner to again raise that plea in E.P.No.452 of 2004. It is also contended that by the sale of property in execution of the decree in O.S.No.598 of 1993, the interest if any petitioner had in the property on account of the prior attachment he had obtained in O.S.No.598 of 1993 ceased to exist and the sale in favour of the 2[nd] respondent is free of attachment in O.S.No.598 of 1993. 4. On going through the order under challenge it would appear that **CRP No.36/2009** 4 the executing court considered the question whether there was any property of the original defendant available with his legal representatives to be proceeded against in execution of the decree in O.S.No.570 of 1993. Though learned counsel for petitioner has a contention that the crucial question whether the decree in O.S.No.598 of 1993 was obtained by fraud and collusion was not considered by the executing court I find that there is reference to the said contention raised by petitioner though it is not followed by a detailed discussion. I also find that the executing court has referred to the evidence which petitioner let in and relied on in proof of fraud and collusion, and based on the court sale in O.S.No.598 of 1993 in favour of the 2[nd] respondent, the executing court found that there was no asset of the original defendant available with his legal representatives to be proceeded against and hence E.P.No.452 of 2004 was liable to be dismissed since the prayer was to execute the decree against property of the deceased defendant (which was already sold in O.S.No.598 of 1993). 5. I am inclined to consider the argument of learned counsel for petitioner regarding the allegation of fraud and collusion. Assuming that Ext.A8 would show that there was no valid attachment of property in O.S.No.598 of 1993 for the reason that notice of attachment was not served on the original defendant, it is not as if the mere absence of attachment would by itself render the court sale invalid. Question whether absence of attachment amounted to any material irregularity or fraud is a matter which has to be looked into under Rule 90 of Order XXI of the Code. In the present case petitioner had filed an **CRP No.36/2009** 5 application under Rule 90 of Order XXI of the Code in O.S.No.598 of 1993. May be on the ground of limitation, that application was dismissed. 6. So far as the allegation of fraud and collusion is concerned, learned counsel has contended that there was fraud and collusion in obtaining the decree in O.S.No.598 of 1993. It is pointed out that in O.S.No.570 of 1993 filed by the petitioner against the original defendant, the demand promissory note was executed on 01.10.1990 and petitioner had issued notice before suit to the original defendant on 23.09.1993. There was no reply in spite of service and the suit was filed on 27.09.1993. Attachment of property of the original defendant was effected on 01.10.1993 and as aforesaid, exparte decree was set aside at the instance of the original defendant, later he died, the 1[st] respondent was impleaded as his legal representative and a decree was passed against the assets of deceased defendant in the hands of the 1[st] respondent on 19.03.1997. Learned counsel pointed out that as against that, in O.S.No.598 of 1993 the demand promissory notice is dated 01.12.1990 and without a notice preceding, the suit was filed on 11.10.1993 and property of the original defendant was attached. According to the learned counsel, affidavit filed by the original defendant in support of the application to set aside the exparte decree dated 30.01.1994 in O.S.No.570 of 1993 would show that the original defendant was permanently staying at Bombay. It is also the contention of learned counsel that the counsel who appeared for the original defendant in O.S.No.570 of 1993 appeared for the 2[nd] respondent/plaintiff in O.S.No.598 of 1993 which revealed collusion between the original defendant and the 2[nd] respondent. **CRP No.36/2009** 6 7. No doubt, it may not be possible to get direct evidence of fraud and collusion. It may also be open to the petitioner to challenge the decree in O.S.No.598 of 1993 and execution proceedings in E.P.No.452 of 004 in O.S.No.570 of 1993 on the ground of fraud and collusion. But in this case, petitioner cannot be allowed to urge that contention for the reason that he had already filed O.S.No.1399 of 1997 and obtained an adverse decision. 2[nd] respondent has produced the judgment in A.S.No.627 of 2003 arising from the dismissal of O.S.No.1399 of 1997. It is seen from the copy of judgment that the appellate court raised the question whether the decree in O.S.No.598 of 1993 is the result of fraud and collusion, whether sale in that suit is liable to be cancelled (for the reason of alleged fraud and collusion) and whether petitioner is entitled to get declaration as prayed for in O.S.No.1399 of 1997 as points for consideration. The appellate court considered the allegations made with reference to the evidence adduced and came to the conclusion that the plea that the same counsel appeared for the original defendant in O.S.No.570 of 1993 and the 2[nd] respondent/plaintiff in O.S.No.598 of 1993 is not correct (see paragraph 3 of the judgment of the appellate court). Appellate court also found that there is no sufficient evidence to show that the decree in O.S.No.598 of 1993 was obtained fraudulently or collusively and that the decree in O.S.No.598 of 1993 is valid and petitioner is not entitled to get declaration as prayed for in O.S.No.1399 of 1997. 8. In the light of the above finding it is idle for petitioner to again contend that the decree in O.S.No.598 of 1993 is the result of fraud and **CRP No.36/2009** 7 collusion and that the said decree or the proceedings in execution pursuant to that will not bind petitioner. I must also bear in mind that petitioner is not a secured creditor having interest in the property sold in court auction in O.S.No.598 of 1993. On the other hand, claim of petitioner rests on the attachment of that property before judgment. It is settled position of law (see **Thiru Venkita Reddiar v. Noordeen (1977 KLT 877)** and **Francis v. Navodaya Kuries and Loans (P) Ltd.(2010 (3) KLT 609))** that by the court sale prior attachment would fall to the ground. The auction purchaser takes the property free from any such prior attachment. Hence the said property could be proceeded against. The said property did no belong to the 1[st] respondent on the date of E.P.No.452 of 2004 as it had already been sold to 2[nd] respondent in court auction. In that circumstances, dismissal of E.P.No.452 of 2004 is correct and no interference is required. Civil revision is dismissed. **THOMAS P.JOSEPH, Judge.** **cks**