High Court of KeralaSingle Judge2022-01-14Original Petition dismissed; the court conclude...

OP(C) No. 54 of 2022 (In EA 96/2016 in OS 654/1999, Additional Munsiff Court, Alappuzha)

Case / Petition Number:OP(C).No.54/2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. BADHARUDEEN
Judgment Date: 2022-01-14
Court Decision / Holding: Original Petition dismissed; belated application barred by limitation. The court upheld the Munsiff’s order, holding that the delivery petition was not maintainable under the relevant limitation provisions and that the remedy to seek delivery by a separate suit is not totally barred in principle but not in this case due to the extreme delay.
Final Disposition: Original Petition dismissed; the court concludes the application is barred by limitation and evidences no merit to interfere with the executing court’s order.

Parties to the Case

Appellants / Petitioners

Saramma
Sanusha S.
Sanuja S.
Sanath A P

Respondents

Federal Bank Ltd.
Vakkachan S/O Maichel
Pramod S/O Gopinathan Nair
Umesh S/O Sukumaran Vazhuvelil
Raji W/O Umesh
V R Rajesh S/O Rajappakurup
A G Murali S/O Govindan Nair
Gopalakrishnan S/O Sekharan
Lekha W/O Sunil Kumar
Kavitha W/O Ponnappan
K Chaithra Ambadi

Legal Representation & Advocates

Counsels for Petitioners

• K.I. Mayankutty Mather
• Uthara Asokan

Case Synopsis & Summary

This Original Petition arises under Article 227 challenging Ext.P12, an order in EA 96/2016 from OS 654/1999 before the Additional Munsiff Court, Alappuzha. The suit by the plaintiffs sought recovery of Rs.96,477 with interest, culminating in a decree, sale of the plaint schedule property, and its sale confirmation on 24 September 2006, followed by delivery on 26 February 2008. The petitioners are the legal heirs of the defendant. They filed I.A.96/16 on 19 January 2016 seeking redelivery, arguing that the delivery petition should have been filed within one year from sale confirmation under Article 134 of the Limitation Act. The respondents did not oppose the plea. The Munsiff’s order indicates that the delivery petition was not filed within the one-year period, and the petition was supported by authorities including older Kerala High Court decisions. The court also notes a Full Bench decision in Danish Varghese v. Jancy Danish (2021 (1) KLT 631) clarifying that the remedy to obtain delivery by a separate suit is not totally barred. The petition was filed eight years after delivery, and after transfers to respondents 3–11. The Kerala High Court ultimately held that the petition is barred by limitation under Article 137 CPC and dismissed the Original Petition, upholding the Munsiff’s order.

Provisions of Law Cited

Article 134 of the Limitation ActArticle 137 of the Limitation ActSection 47 of the Code of Civil ProcedureArticle 227 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that the delivery petition was not filed within one year from the date of confirmation of sale as required by Article 134 of the Limitation Act. They relied on several prior Kerala High Court decisions cited by counsel to contend potential remedies and limitations on delivery petitions, but acknowledged the matter ultimately depends on Article 137 CPC. They urged that the remedy to obtain delivery by a separate suit should not be deemed wholly barred, and cited the Full Bench decision in Danish Varghese v. Jancy Danish (2021) as supportive context.

Contentions of Respondents

The respondents supported dismissal, contending that the delivery petition was filed after an inordinate delay and is barred by the limitation provisions, particularly Article 137 CPC. They highlighted that delivery was effected in 2008 and the petition was filed only in 2016, eight years later, following assignees and transfers to respondents 3–11. They also emphasized the need to uphold the Munsiff’s finding that the petition was time-barred.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
State Bank of Travancore v. Shankaran	1991 KHC 57	Mentioned Only	Cited by counsel; used in context of delivery petition timing but not adopted as controlling in this decision.
Haneefa v. United Finance Corporation	2006 KHC 159	Mentioned Only	Cited in the course of arguments on limitation but not treated as decisive.
Ganapat Singh (dead) by L.Rs v. Kailash Shankar & Ors.	1987 KHC 1000(SC)	Mentioned Only	Cited as part of broader limitation discussion, not determinative of the outcome in this petition.
Danish Varghese v. Jancy Danish	2021 (1) KLT 631	Positive	Full Bench decision relied upon to support the proposition that the remedy to obtain delivery through a separate suit is not totally barred.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 14[TH] DAY OF JANUARY 2022 / 24TH POUSHA, 1943** ## **OP(C) NO. 54 OF 2022** ## **IN EA 96/2016 IN OS 654/1999 OF ADDITIONAL MUNSIFF COURT,** ## **ALAPPUZHA** ## **PETITIONERS:** 1 SARAMMA AGED 37 YEARS W/O A N PONNAPPAN, ASARIPARAMBIL, MARARIKULAM NORTH P O, ALAPPUZHA-688549. 2 SANUSHA S. D/O A N PONNAPPAN, ASARIPARAMBIL, MARARIKULAM NORTH P O, ALAPPUZHA-688549. 3 SANUJA S. D/O A N PONNAPPAN, ASARIPARAMBIL, MARARIKULAM NORTH P O, ALAPPUZHA-688549. 4 SANATH A P. S/O A N PONNAPPAN, ASARIPARAMBIL, MARARIKULAM NORTH P O, ALAPPUZHA-688549. BY ADVS. K.I.MAYANKUTTY MATHER UTHARA ASOKAN ## **RESPONDENTS:** - 1 FEDERAL BANK LTD. MARARIKULAM BANK LTD, MARARIKULAM BRANCH, KANJIKKUZHY P O, ALAPPUZHA-688 523,REPRESENTED BY ITS MANAGER. - 2 VAKKACHAN S/O MAICHEL, KAKKAMYIL, POLLETHAI P O, KATTOOR MURI, KALAVOOR VILLAGE, ALAPPUZHA-688522. - 3 PRAMOD S/O GOPINATHAN NAIR, SREYAS, MUTHAMMA P O, CHARAMANGALAM MURI, THANNEERMUKKOM SOUTH VILLAGE, CHERTHALA-688527. O.P(C).No.54/2022 2 4 UMESH S/O SUKUMARAN VAZHUVELIL, CHERANALLOOR GRAMA PANCHAYATH, SOUTH CHITTOOR P O, EDAKUNNAM, CHERANALLOOR VILLAGE, KANAYANNOOR TALUK, ERNAKULAM-682034. 5 RAJI W/O UMESH, VAZHUVELIL, CHERANALLOOR GRAMA PANCHAYAT, SOUTH CHITTOOR P O, EDAKUNNAM, CHERANALLOOR VILLAGE, KANAYANNOOR TALUK, ERNAKULAM-686512. 6 V R RAJESH S/O RAJAPPAKURUP, VADAKKEKUNNATHU, MARARIKULAM NORTH GRAMA PANCHAYATH, S L PURAM P O, MARARIKULAM MURI, MARARIKULAM NORTH VILLAGE, CHERTHALA-688523. 7 A G MURALI S/O GOVINDAN NAIR, ASWATHY BHAVANAM, MARARIKULAM MURI, S L PURAM P O, MARARIKULAM MURI, MARARIKULAM NORTH GRAMA PANCHAYATH, MARARIKULAM NORTH VILLAGE, CHERTHALA-688523. 8 GOPALAKRISHANAN S/O SEKHARAN, KUNNATH, MARARIKULAM NORTH GRAM PANCHAYATH, S L PURAM P O, MARARIKULAM MURI, MARARIKULAM NORTH VILLAGE, CHERTHALA-688523. 9 LEKHA W/O SUNIL KUMAR, PADMALAYAM, MANNANCHERRY PANCHAYATH, ARYAD NORTH P O, ARYAD NORTH MURI, KOMALAPURAM VILLAGE, AMBALAPPUZHA TALUK-688008. 10 KAVITHA W/O PONNAPPAN, ARESSERIL, MARARIKULAM NORTH GRAMA PANCHAYATH, MARARIKULAM NORTH P O, MARARIKULAM MURI, MARARIKULAM NORTH VILLAGE, CHERTHALA-688523. 11 K CHAITHRA. AMBADI, S L PURAM P O, CHERTHALA-688523. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2022, THE COURT ON 14.01.2022 DELIVERED THE FOLLOWING: O.P(C).No.54/2022 3 ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C).No.54 of 2022_ ================================ _Dated this the 14[th] day of January, 2022_ _**J U D G M E N T**_ The order Ext.P12 in E.A.No.96/2016 in O.S.No.654/1999 on the file of Additional Munsiff Court, Alappuzha dated 29.10.2021 is under challenge in this Original Petition filed under Article 227 of the Constitution of India. The petitioners herein are the legal heirs of the defendant in O.S.654/1999 on the file of Additional Munsiff Court, Alappuzha. The plaintiffs/petitioners instituted Suit against the defendant to recover Rs.96,477/- with interest @ 16.32%. Thereafter, decree was put in execution, which ended in the sale of plaint schedule property and the sale was confirmed on 24.09.2006. The property was delivered thereafter on 26.02.2008. In fact, notice was issued to the O.P(C).No.54/2022 4 respondents and they did not oppose the plea of delivery and accordingly delivery was effected. Though delivery was effected on 26.2.2008, the petitioners herein filed this petition as I.A.96/16 on 19.01.2016. According to the petitioners, the delivery petition was filed on 19.11.2007, though as provided under Article 134 of the Limitation Act the same should have been filed within one year. Other contentions also raised challenging the sale, but no evidence let in to substantiate the said contentions. 2. It is submitted by the learned counsel for the petitioners that since the delivery application was not filed within one year from the date of confirmation of sale, the same cannot be sustained. In this connection, the learned counsel placed 2 decisions reported in [1991 KHC 57], _**State Bank of Travancore v. Shankaran;**_ [2006 KHC 159], _**Haneefa v. United Finance Corporation and**_ [1987 KHC 1000(SC)], _**Ganapat Singh (dead) by L.Rs v. Kailash Shankar & Ors.**_ O.P(C).No.54/2022 5 3. The legal position is not in dispute. In para.11 of the order impugned, the learned Munsiff also observed that delivery petition was not filed within the prescribed period of one year. It is the settled law that though delivery petition shall be filed within one year from date of confirmation of sale for getting the property delivered through execution proceedings, the remedy of the auction purchaser to get delivery by filing a separate Suit is not totally barred (see Full Bench decision of this Court in [2021 . (1) KLT 631], _**Danish Varghese v. Jancy Danish**_ 4. The present petition was filed before the executing court after 8 years, from the date of delivery under Section 47 of the Code of Civil Procedure. The Limitation Act does not say specifically what is the period of limitation to file a petition under Section 47 of C.P.C. Therefore, residuary Article 137 of the Limitation Act would apply in a proceedings under Section 47 of C.P.C. Under Article 137 of C.P.C, 3 years is the period fixed for O.P(C).No.54/2022 6 filing any other application, for which no period of limitation provided elsewhere in the Limitation Act, from the date when the right to apply accrues. Here, delivery was effected after notice to the respondents. Therefore, if at all they had any contention, that should have raised the same within 3 years from the date of delivery and not thereafter. In view of the matter, this petition is barred by limitation. 5. Here, though admittedly delivery petition was filed on 19.11.2007, this contention was not raised before the execution court and accordingly delivery was effected on 26.02.2008. After a long period of 8 years, this petition has been filed seeking redelivery of the property. In this context, it has to be observed that since the petitioners failed to raise this contention before delivery, the petitioners could not raise this contention after effecting delivery of the property, that too, after sale of the properties by the bank and subsequent transfers made thereafter to respondents O.P(C).No.54/2022 7 3 to 11 in this case. In view of the matter, this belated application deserves no merit. Therefore, I am not inclined to interfere with the order and I endorse the view taken by the learned Munsiff. Accordingly, this Original Petition lacks merit and is dismissed. Sd/- ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ O.P(C).No.54/2022 8 ## **APPENDIX OF OP(C) 54/2022** PETITIONERS' EXHIBITS Exhibit P1 TRUE COPY OF THE DECREE PASSED BY THE ADDITIONAL MUNSIFF COURT, ALAPPUZHA IN OS 654/1999. Exhibit P2 TRUE COPY OF THE SALE CERTIFICATE ISSUED BY THE ADDITIONAL MUNSIFF COURT, ALAPPUZHA. Exhibit P3 TRUE COPY OF DELIVERY RECEIPT IN EP NO.291/2000 IN OS 654/1999 OF THE ADDITIONAL MUNSIFF COURT, ALAPPUZHA. Exhibit P4 TRUE COPY OF PROCEEDINGS OF THE ADDITIONAL MUNSIFF COURT, ALAPPUZHA IN E A NO.358/2007. Exhibit P5 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT TO A N PONNAPPAN. Exhibit P6 TRUE COPY OF THE REPRESENTATION GIVEN BY THE 4TH PETITIONER TO THE 1ST RESPONDENT -BANK. Exhibit P7 TRUE COPY OF THE REPLY GIVEN BY THE 1ST RESPONDENT-BANK TO THE 4TH PETITIONER. Exhibit P8 TRUE COPY OF E A NO.96/2016 FILED BEFORE THE MUNSIFF COURT, ALAPPUZHA. Exhibit P9 TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT TO EA 96/2016. Exhibit P10 TRUE COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT. Exhibit P11 TRUE COPY OF THE OBJECTION FILED BY RESPONDENTS 3 TO 10 TO EA NO.96/2016 BEFORE THE EXECUTION COURT. Exhibit P12 TRUE COPY OF THE ORDER IN E A NO.96/2016 OF THE MUNSIFF COURT, ALAPPUZHA.