N.N. Sivadasan Nair and Prasanna S. Nair v. Saju Mathews

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **TUESDAY, THE 18TH DAY OF NOVEMBER 2014/27TH KARTHIKA, 1936** ## **OP(C).No. 2550 of 2012 (O)** **-------------------------------------** ## **OS 634/1995 OF ADDITIONAL SUB COURT, KOTTAYAM** **........** **PETITIONER(S):** **-----------------------** **1. N.N.SIVADASAN NAIR, B-707, SAGAR RESIDENCY, SECTOR-27, NERUL, NAVI MUMBAI-400 706.** **2. PRASANNA S.NAIR, W/O. N.N.SIVADASAN NAIR, B-707, SAGAR RESIDENCY, SECTOR-27, NERUL, NAVI MUMBAI-400 706.** **BY ADVS.SRI.P.B.KRISHNAN** **SMT.GEETHA P.MENON** **SRI.N.AJITH SRI.P.B.SUBRAMANYAN** **RESPONDENT(S):** **-------------------------** **SAJU MATHEWS, PROPRIETOR, G.P.RUBBER TRADERS, CHENNAKKUNNU, PONKUNNAM, KOTTAYAM.** **BY ADV. SRI.P.CHANDRASEKHAR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **OP(C).No. 2550 of 2012 (O) -------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** ## **--------------------------------------** - **EXT.P1 : TRUE COPY OF THE PLAINT, DTD.30.8.1995 IN OS NO.634/1995 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KOTTAYAM.** - **EXT.P2 : TRUE COPY OF THE JUDGMENT, DTD.6.3.1997 IN CC NO.428/1995 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE'C COURT-II, KANJIRAPPALLY.** - **EXT.P3 : TRUE COPY OF THE JUDGMENT, DTD.11.3.1997, IN CC 429/1995 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II, KANJIRAPPALLY.** - **EXT.P4 : TRUE COPY OF THE RECEIPTS DTD.28.1.1998 & 23.1.1998 FOR THE REMITTANCE OF THE FINE AMOUNT IN CC NO.428 & 429 OF 1995 RESPECTIVELY.** - **EXT.P5 : TRUE COPY OF THE JUDGMENT, DTD.27.7.1998 IN OS NO.634/1995 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KOTTAYAM.** - **EXT.P6 : TRUE COPY OF EP NO.404/1998 DTD.27.11.1998, IN OS NO.634/1995 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KOTTAYAM.** - **EXT.P7 : TRUE COPY OF THE EXTRACT DATED NIL OF CRCD REPORTS IN CC NO.428/1995 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KANJIRAPPALLY.** - **EXT.P8 : TRUE COPY OF THE EXTRACT DATED NIL OF CRCD REPORTS IN CC NO.429/1995 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KANJIRAPPALLY.** - **EXT.P9 : TRUE COPY OF THE B DIARY DATED NIL IN EP NO.404/1998 IN OS NO.634/1995, ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KOTTAYAM.** - **EXT.P10: TRUE COPY OF THE B DIARY DATED NIL IN EP NO.231/2001 IN OS NO.634/1995, ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KOTTAYAM.** - **EXT.P11: TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DTD.2.4.2002,IN OS NO.126/2002, MUNSIFF'S COURT, KOTTAYAM.** - **EXT.P12: TRUE COPY OF EA NO.1195/2011 IN EP NO.404/1998 AND EP NO.231/2001 IN OS NO.634/1995 DTD.30.11.2011, ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KOTTAYAM.** - **EXT.P13: TRUE COPY OF THE OBJECTION DTD.9.2.2012 IN EA NO.1195/2011 IN EP NO.404/1998 AND EP NO.231/2001 IN OS NO.634/1995 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KOTTAYAM.** **Msv/** **-2-** **-2-** **OP(C).No. 2550 of 2012 (O) -------------------------------------** **EXT.P14: CERTIFIED COPY OF COMMON ORDER DTD.9.4.2012 IN EA NO.1195/2011 AND EA NO.1196/2011 IN EP NOS.404/1998 AND 231/2001 IN OS NO.634/1995 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KOTTAYAM.** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------------------------** **EXT.R1(a): TRUE COPY OF THE ORDER DTD.31.10.1998 IN CMP.NO.5563/98 IN C.C.NO.429/95 OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, KANJIRAPPALLY.** **EXT.R1(b): TRUE COPY OF THE NOTICE ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE-II, KANJIRAPPALLY DATED 7.1.1999 TO THE 1ST PETITIONER.** **EXT.R1(c): TRUE COPY OF THE DECREE IN OS.NO.633/1998 ON THE FILE OF THE MUNSIFF COURT, KOTTAYAM DATED 28.6.1999.** **EXT.R1(d): TRUE COPY OF THE SALE CERTIFICATE IN FAVOUR OF THE PETITIONER.** **EXT.R1(e): TRUE COPY OF THE ORDER DATED 10.8.2009 OF THE MUNSIFF COURT, KOTTAYAM IN EA.NO.91/2004 IN EP.233/2002 IN OS.633/1998.** **EXT.R1(f): TRUE COPY OF THE DECREE DATED 27.11.2001 IN OS.NO.361/1999 OF THE PRINCIPAL SUB COURT, KOTTAYAM.** **EXT.R1(g): TRUE COPY OF THE ORDER DATED 3.10.2012 IN IA.NO.2121/2012 IN IA.1054/12 IN OS.NO.361/1999 OF THE PRINCIPAL SUB JUDGE, KOTTAYAM.** ## **//TRUE COPY//** ## **P.S.TO JUDGE** Msv/ ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - O.P.(C) No. 2550 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of November, 2014 ## **J U D G M E N T** Under challenge is Ext.P14 order whereby the court below dismissed E.A.Nos. 1195 of 2011 and 1196 of 2011 in E.P.Nos. 404 of 1998 and 231 of 2001 in O.S.No. 634 of 1995. 2. The facts absolutely necessary for the purpose of disposal of this petition are as follows: There were monetary transactions between the petitioner and the respondent before the court below and the second respondent before the court below was indebted to the first respondent. The first petitioner before the court below is the wife of the second respondent. 3. In 1995, the second respondent before the court below who is the first petitioner herein was indebted to the tune of 1.64 lakhs to the respondent before this Court. In₹ order to discharge the said debt, three cheques and a ## **O.P.(C) No. 2550 of 2012** **-2-** demand draft were issued to the first respondent. Two cheques for a sum of 15,164.15/- and 92,250/- were₹ ₹ dishonoured, while the other cheque and demand draft were encashed. The first respondent instituted criminal proceedings as C.C.No. 428 of 1995 and C.C.No. 429 of 1995 under Section 138 of the Negotiable Instruments Act before the Judicial First Class Magistrate's Court-II, Kanjirappally. While the criminal proceedings were pending, O.S.No. 634 of 1995 was instituted before the Sub Court, Kottayam for realizing a sum of 1,21,786/- due on the same transaction.₹ By Ext.P2 judgment, in criminal case, the first petitioner before this Court was found guilty. He was found guilty in both cases namely C.C.No. 428 of 1995 and C.C.No. 429 of 1995 by judgment dated 06.03.1997 and 11.03.1997 respectively and he was directed to pay a compensation of ₹20,000/- as per Ext.P2 order and 1,10,000/- as per Ext.P3₹ order also. The accused, who is the first petitioner herein preferred Crl.A. No. 49 of 1997 and Crl.A.No. 51 of 1997 **O.P.(C) No. 2550 of 2012** **-3-** against the conviction and sentence in the two cases. The appeals were dismissed by order dated 31.07.1997. The first petitioner thereafter preferred Crl.R.P.No. 700 of 1997 and Crl.R.P.No.706 of 1997 before this Court. At the time of admission, in one of the cases, he was directed to deposit ₹1,10,000/- and in other cases 20,000/- which he deposited₹ on 23.01.1998 and 28.01.1998 respectively. After the deposit had been made, by Ext.P5 O.S.No. 634 of 1995 was decreed. It is conceded that in Ext.P5 judgment, criminal cases have been referred to. But the deposit made as per the orders of this Court were not taken note of. By judgment dated 28.07.1998, this Court dismissed the Crl.R.Ps. 4. It is not in dispute that on 18.08.1998, the plaintiff in O.S.No. 634 of 1995 filed C.M.P.No. 5562 of 1998 and C.M.P.No. 5563 of 1998 before the Judicial First Class Magistrate's Court-II, Kanjirappally for withdrawal of the amount deposited. Ultimately, on 31.10.1998, the application was dismissed which is evidenced by Ext.R1(a). ## **O.P.(C) No. 2550 of 2012** **-4-** Thereafter, the respondent before this Court preferred Ext.P6 execution petition as E.P.No.404 of 1998 on 27.11.1998 for recovery of the amount covered by decree in O.S.No. 634 of 1995. During the pendency of that E.P. as per Ext.P7 and Ext.P8 applications on 01.02.1999, the decree holder had withdrawn the compensation amount deposited as per the orders of this Court while admitting the Criminal Revision Petitions. 5. The records reveal that all through out in the suit as well as in the execution petitions, the defendant who is the judgment debtor remained absent and notice was issued to him through paper publication. Ultimately, on 09.02.2001, the property of the judgment debtor having an extent of 50 cents with a building of 2000 sq.ft. was brought to court sale and it was bid by the decree holder for a sum of ₹1,82,328/-. The sale was confirmed on 19.05.2001 and sale certificate was duly issued. He filed E.P.No. 231 of 2001 for effecting delivery and in that proceedings also, notice was **-5-** ## **O.P.(C) No. 2550 of 2012** taken out to the judgment debtor through paper publication. Ultimately, the property was delivered on 23.11.2001. 6. In the meanwhile, by Ext.A1 dated 01.12.1997, the first petitioner herein had transferred his property in favour of his wife who is the second petitioner. She instituted O.S.No. 126 of 2002 before the Munsiff Court, Kottayam wherein a Commission was taken out and the report shows that valuable trees have been cut and removed from the property. However, the suit happened to be dismissed. Thereafter, the second petitioner before this Court filed E.A.No. 1195 of 2011 and E.A.No.1196 of 2011 from which the impugned order arises for setting aside the sale and not to deliver the property. 7. The petition was resisted by the respondent herein on several grounds. One of the contentions taken was that the petitioner before the court below had no subsisting title in the property to maintain a petition of the nature as is presently done. The sale in her favour had been set aside ## **O.P.(C) No. 2550 of 2012** **-6-** and therefore she had no locus standi to file the petition. Further, it was contended that the entire proceedings followed were in accordance with law and there is no infirmity in any of the proceedings before the court. It is also contended that the decree holder had no notice of deposit in the criminal cases and therefore it could not be taken as due payment towards the decree amount. Accordingly, it was prayed that the petition may be dismissed. 8. For the purpose of interlocutory applications PWs 1 to 3 were examined from the side of petitioners and Ext. A1 to A19 were marked. From the side of the contesting respondents, Exts. B1 to B7 were marked. 9. On an appreciation of the materials before it, court below declined to accept the plea of fraud and found that sale was strictly in accordance with law and that the petitioner before the court below had no subsisting title to maintain a petition and accordingly, dismissed both the **-7-** ## **O.P.(C) No. 2550 of 2012** applications. 10. Assailing the findings of the court below Sri. P.B.Krishnan, the learned counsel appearing for the petitioners contended that the entire proceedings culminating in the passing of the decree and ultimately in the delivery of the property is vitiated by irregularities and illegalities and therefore, the entire sale and delivery is a nullity. 11. Drawing inspiration from the decision reported in **D. Purushotama Reddy And Another** v. **K. Sateesh** [(2008) 8 SCC 505], it was contended that the decree passed in the suit without taking note of the deposit of compensation as per the orders of the Criminal court is a nullity and such a decree could not have been executed and if that be so, the entire proceedings are vitiated in law. 12. For the above proposition, the learned counsel for the petitioner placed reliance on the following passage in **D. Purushotama Reddy** 's case (cited supra): **O.P.(C) No. 2550 of 2012** **-8-** “Submission of the learned counsel for the respondent that the said question as not raised before the learned trial judge or before the High Court is of no moment. Sub-section(5) of Section 357 of the Code castsa duty upon the court. It was for the trial court/High Court to take the same into consideration. Such consideration was required to be bestowed despite the fact that the said provision was not brought to its notice.” 13. He then contended that this is a case where the decree holder has unduly enriched himself at the cost of the judgment debtor. Had the deposits been duly given credit to at the time when the decree was sought to be passed, it could have been seen that no amount was due on the date of decree and therefore the decree passed in the suit is without jurisdiction and it is a nullity. That affects the sale also. Relying on the Section 357(5) of the Cr.P.C. it is contended that the Statute mandates that compensation awarded by the Criminal court shall be given credit to while considering a compensation granted by the Civil Court. If that principle is to be followed, the amount deposited in pursuance to the order of this Court should have been given credit to before the decree could have been passed in the ## **O.P.(C) No. 2550 of 2012** **-9-** suit. The decree passed without taking note of the deposit cannot have sanction in law. It is therefore contended that the entire proceedings are vitiated and sale should be set aside. 14. Sri. P. Chandrashekhar, the learned counsel appearing for the contesting respondent pointed out that the first petitioner before this Court who also the judgment debtor is not a petitioner before the court below at all and the second petitioner before this Court who is the petitioner before the court below has no subsisting title to the property to maintain the claim of the present nature. It is contended that the principle laid down in **Purushotama Reddy** 's case (cited supra) is only to the effect that while passing a decree in the Civil Court, the court is to take note of the compensation that might have been awarded in the Criminal case under Section 138 proceedings, which arises from the same transaction. But that does not mean that the court is to adjust the amount and the decree could be passed only **-10-** ## **O.P.(C) No. 2550 of 2012** for the balance amount. 15. The learned counsel also went on to point out that as on the date of passing of the decree, the decreetal amount was much more than what was in deposit and therefore the contention that had the amount in deposit been given credit to, no decree could have been passed cannot be sustained in law. It is also contended that at no point of time, there was any attempt to show that when had the amounts deposited been given credit to, no decree could have been passed. 16. After a lapse of 10 years, to come forward with such a plea is without any justification and cannot be countenanced in law. More over, the learned counsel pointed out that the second petitioner who filed the petition before the court below and whose title was set at naught by the court below cannot now be heard to say that she is entitled to maintain a petition under Article 227 of Constitution of India. The learned counsel also emphasized ## **O.P.(C) No. 2550 of 2012** **-11-** that at no point of time, the first petitioner who laid claim to the property was ever an applicant before the court below. Therefore, it is contended that there is no merit in the contentions raised by the petitioner. 17. Starting from the decision reported in **Purushotama Reddy** 's case (cited supra), it is true that in the said decision, the Apex Court had occasion to consider the question of compensation being awarded in an offence punishable under Section 138 of Negotiable Instruments Act and the effect of the compensation awarded in such a case with reference to the decree that may be passed on the same transaction in a Civil suit. Probably, one could also say that if the compensation had already been deposited, that should have been taken note of while passing the decree. To that extent, finding of the court below that the compensation had not been deposited at the time of passing of the decree is not true. Going by the dates, it is clear that a sum of 1,30,000/- was deposited on 23.01.1998 and the₹ ## **O.P.(C) No. 2550 of 2012** **-12-** decree was passed on 27.07.1998. The amount due on the two dishonoured cheques comes to only ₹ 1,07,415/-. However, one has to notice that the interest was also due on the amount and it was for the judgment debtor at the relevant time to show that after adjusting the amount of compensation deposited, no amount was due under the decree. It is here that the conduct of the judgment debtor assumes importance. At no point of time, he participated in the proceedings and kept away from the court on all occasions. It is significant to notice that while he participated in the criminal proceedings, he chose not to take part in the sale proceedings at all. He did file an appeal against convictions and also Civil Revision Petition against the order in the appeals. But he neithter appeared in the suit nor in the execution proceedings at any point of time to contest the proceedings. 18. It is pointed out by the learned counsel for the respondent that the application before the court below was ## **O.P.(C) No. 2550 of 2012** **-13-** only by the second petitioner. The first petitioner before this Court did not raise any claim to the property involved in this proceedings. 19. The claim put forward by the second petitioner before the court below was that the property has been assigned in her favour by the first petitioner as per Ext.A1 which was marked before the court below. However, it has come out in evidence that the sale in favour of the second petitioner by the first petitioner has been set aside by the court below. Therefore, the petitioner before the court below in both these applications had no subsisting title to maintain an action against the sale and delivery of the property. 20. The learned counsel appearing for the petitioner then pointed out that if the sale in favour of the second petitioner is set at naught, it is also more favourable to the first petitioner and that apart from being a _lis pendens transfer_ the property remains in the name of the first ## **O.P.(C) No. 2550 of 2012** **-14-** petitioner. If that be so, as already stated, since the proceedings are invalid in law, the sale has to be set aside. 21. There were no such contentions before the court below. All the while, it was the second petitioner who had agitated the right over the property and laid claim to the property involved in this proceedings. Viewed from that angle, reliance placed in the decision reported in **A.G.M. Constructions (P) Ltd.** v. **Shibu Kumar** [2010 4 KLT 189] may not be of much help to the petitioners. 22. The sale in favour of the second petitioner by the first petitioner was set at naught and also one needs to notice that the sale was during the existence of attachment of the property in this case. Of course, the sale is subject to attachment. It could not strictly be called a _pendente lite transfer_ because the property as such was not involved in litigation. Whatever that be, since the sale in favour of the second petitioner by the first petitioner was set at naught and since the first petitioner was not an applicant before the ## **O.P.(C) No. 2550 of 2012** **-15-** court below taking claim to the property involved in the proceedings, it could not be said that there was any valid claim made in respect of the property. 23. Probably, it could be said that the sale might be defective had it been properly challenged in view of Order XX1 Rule 64. It could have been contended that the entire property need not have been sold to satisfy the decree. But that contention ought to have been taken at the relevant time and not after ten years of the sale and delivery of the property. 24. The contention raised by the first respondent that he was unaware of the deposit in the criminal proceedings may not be quite correct. But that does not help the petitioners much in this case. After having willfully abstained from appearing in court, why should any indulgence be shown to them. Even after finding that the sale in favour of his wife have been set at naught, the first petitioner did not choose to approach the court below ## **O.P.(C) No. 2550 of 2012** **-16-** seeking to have the sale set aside labelling it as vitiated by fraud or irregular or illegal for the reason that property sold was in excess than what was necessary to make a decree debt. Though the court below might not have noticed all these facts, ultimately, court below found that the petitioner before the court below is not entitled to any relief. Though for different reasons, this court finds no reason to interfere with the findings of the court below. This Original Petition is without merits and it is accordingly dismissed. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge