Malanadu Co-operative Agriculture Rural Development Bank Ltd. (MALANADU CO-OPERATIVE AGRICULTURE RURAL DEVELOPMENT BANK) v. K.I. Antony and Vincent Scaria

CRP No.303 of 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 27**[TH] **DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945** ## **CRP NO. 303 OF 2021** **AGAINST THE ORDER/JUDGMENT DATED IN OS NO.299 OF 2016 OF MUNSIFF COURT,KATTAPPANA** ## **REVISION PETITIONER/CLAIM PETITIONER:** **MALANADU CO-OPERATIVE AGRICULTURE RURAL DEVELOPMENT BANK LTD., NEDUMKANDAM REP. BY ITS SECRETARY SABU JOHN.** **BY ADVS. MADHU RADHAKRISHNAN NELSON JOSEPH M.D.JOSEPH DEEPAK ASHOK KUMAR** ## **RESPONDENTS/DECREE HOLDER/JUDGMENT DEBTOR:** - **1 K.I.ANTONY** **AGED 56 YEARS** - **KIZHAKETHALACKAL HOUSE, MINORCITY KARA,NEDUMKANDAM P. O.,KALKOONTHAL VILLAGE, UDAMBANCHOLA, IDUKKI.** **2 VINCENT SCARIA AGED 51 YEARS** **S/O. SCARIA, KOLLAMPARAMBIL HOUSE, MINORCITY KARA, NEDUMKANDAM P. O., KALKOONTHAL VILLAGE, UDAMBANCHOLA, IDUKKI.** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 8.02.2024, THE COURT ON 27/2/2024 DELIVERED THE FOLLOWING:** CRP No.303 of 2021 2 ## **V.G.ARUN J.** ------------------------------------CRP No.303 of 2021 **---------------------------------** Dated this the 27[th] day of February 2024 ## **O R D E R** The revision petitioner is the claim petitioner in EA No.79 of 2020 in EP No.36 of 2018 in OS No.299 of 2016 of the Munsiff's Court, Kattappana. The facts that led to the filing of the claim petition are as under; The second respondent had availed a loan from the petitioner, a Co-operative Bank, by mortgaging his property admeasuing 8.50 cents as security. Even though the second respondent defaulted repayment of the borrowed amount, the petitioner was not able to initiate recovery proceedings by reason of the moratorium declared by the Government from 12/10/2018 to 31/03/2020. While so, the petitioner got information that the property mortgaged by the second respondent was sold on 11/07/2019 in execution of the decree passed in OS No.299 of 2016 filed by the first respondent. Thereupon, the petitioner filed the claim petition EA No.79 of 2020 under Section 47 of the Code of Civil Procedure, seeking to CRP No.303 of 2021 3 set aside the sale and its confirmation. 2. The Execution Court dismissed the claim petition as not maintainable, the petitioner not being a party to the suit. Aggrieved, this revision petition is filed. 3. Learned Counsel for the petitioner contended that, in so far as the property sold was mortgaged with the petitioner at an earlier point of time, the petitioner has an interest in the matter and hence, falls within the category of representatives of the parties to the suit. In support of this contention, reliance is placed on the decision in **A.G.M. Constructions (P) Ltd. (M/s.) v. Shibu Kumar and Others (2010 4 KHC 22)** . It is contended that the decree was obtained by collusion between respondents 1 and 2 and there are material irregularities in the sale proceedings, which are sufficient to set aside the sale. Hence, the execution court ought to have decided the claim petition on merits. 4. There is no appearance for the respondents, despite service of notice. 5. The prime contention urged being whether the petitioner is or is not the representative of parties and thereby entitled to file claim petition under Section 47, it will be apposite to read Section 47 of the Code extracted hereunder; CRP No.303 of 2021 4 ## “ **47. Questions to be determined by the Court executing decree** . (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. [xxx] (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of the section, be determined by the Court. 1.[ _Explanation I_ .—For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. _Explanation II_ .—( _a_ ) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and ( _b_ ) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]” ## 6. Sub section(3) of Section 47 itself casts a duty upon the court to determine whether any person is or is not the CRP No.303 of 2021 5 representative of the parties, whenever such question arises for consideration. It is also essential to note the language of Section 47(1) which restricts the consideration under the provision to the questions arising between the parties to the suit in which the decree was passed or their representatives. In this case, the petitioner was admittedly not a party to the suit and cannot claim to be a representative of the parties, either in the capacity of legal representative or as a person who has acquired right over the property from one of the parties to the suit. In **A.G.M. Constructions (P) Ltd.** (supra) the question considered was whether an assignee _pendente lite_ from a party to the proceeding can be termed as representative of such party, as understood in Section 47 of the Code. The question was answered in the following manner; “Thus the expression 'representative' occurring in Section 47 of the Code is wide enough to take in a transferee in interest of any of the parties to the suit provided the interest transferred is bound by the decree that may be passed in the suit. Petitioner being a transferee of the attached property from respondent NO.2 though pendente lite is a 'representative' of respondent NO.2 coming within the scope of Section 47 of the Code since the property transferred to the petitioner is bound by the decree passed in the case ” CRP No.303 of 2021 6 7. The petitioner therein, being a transferee of the attached property, though _pendente lite_ , was held to be the representative of his assignee, who was a party to the suit. The said dictum has no application to the case at hand, since the petitioner's claim is based on a prior mortgage. 8. The petitioner's claim could not have been entertained even otherwise, the scope of adjudication under Section 47 being very limited, as held by the Apex Court in **Rahul S. Shah v. Jinendra Kumar Gandhi and Others [2021 (6) SCC 418]** . The relevant portion of that judgment reads as under; “24.In respect of execution of a decree, Section 47 CPC contemplates adjudication of limited nature of issues relating to execution i.e. discharge or satisfaction of the decree and is aligned with the consequential provisions of Order 21 CPC. Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure and the form whereby the court reaches a decision. For the applicability of the section, two essential requisites have to be kept in mind. _Firstly_ , the question must be the one arising between the parties and _secondly_ , the dispute relates to the execution, discharge or satisfaction of the decree. Thus, the objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible.” 9. The challenge in Section 47 being against the executability of the decree, the scope of interference is limited to cases where the decree is found to be _void ab initio_ and a nullity CRP No.303 of 2021 7 or if the decree is not capable of execution under law, either because the same was passed in ignorance of the provisions of law or by the law promolugated after the passing of the decree making it inexecutable. The challenge against the sale in the case at hand is based on procedural violations and irregularities in conducting the sale, do not fall within the ambit of Section 47 of the Code. For the aforementioned reasons, the Civil Revision Petition is dismissed. Sd/- **V.G.ARUN Judge** dpk CRP No.303 of 2021 8 ## **APPENDIX OF CRP 303/2021** ## **PETITIONER ANNEXURES** **Annexure A1 TRUE COPY OF MORTGAGE DEED DATED 01.02.2013. Annexure A2 TRUE COPY OF MORTGAGE DEED DATED 08.12.2014. Annexure A3 TRUE COPY OF THE ENCUMBRANCE DATED 20.02.2020.**