P.A. Hamza v. Shabeer Abdulkhader

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **THURSDAY, THE 6TH DAY OF FEBRUARY 2014/17TH MAGHA, 1935`** ## **OP(C).No. 4480 of 2013 (O)** **------------------------------------[E.A. NO.677/13 IN E.P. NO.278/13 IN O.S.NO.116/2009 OF THE FIRST - ADDITIONAL SUB COURT,KOZHIKODE]** **........** **PETITIONER:** **-------------------** **P.A.HAMZA, AGED 55 YEARS, S/O.ABDULLA HAJI, RESIDING AT CRESCENT HOUSE, EAST NADAKKAVU, CALICUT, CHAIRMAN AND MANAGING DIRECTOR, INDUS MULTI BUSINESS CENTRE (P) LTD., INDUS AVENUE BUILDING, KASABA VILLAGE, KOZHIKODE.** **BY ADVS.SRI.V.V.SURENDRAN, SRI.P.A.HARISH, SMT.RESMI NANDANAN.** **RESPONDENT:** **---------------------** **SHABEER ABDULKHADER, S/O.ABDUL KHADER HAJI, RESIDING AT WHITE CASTLE, P.O.CIVIL STATION, KANNUR, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, ABDULKHADER HAJI, S/O.KUTTY HASSAN, RESIDING AT WHITE CASTLE, P.O.CIVIL STATION, KANNUR - 670 001.** **BY S.SREEKUMAR, SENIOR ADVOCATE, ADVS. SRI.P.MARTIN JOSE, SRI.P.PRIJITH.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29-01-2014, THE COURT ON 06-02-2014 DELIVERED THE FOLLOWING:** **Prv.** **O.P.(C).NO.4480/2013-O:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1. TRUE COPY OF THE AWARD PASSED BY THE LOK ADALATH DATED 13.02.2010.** - **EXHIBIT P2. TRUE COPY OF THE LAWYER NOTICE DATED 07.10.2010.** - **EXHIBIT P3. TRUE COPY OF THE EXECUTION PETITION BEFORE THE SUB COURT, KOZHIKODE AS E.P. 345/11.** - **EXHIBIT P4. TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN E.P. 345/11.** - **EXHIBIT P5. TRUE COPY OF THE EXECUTION PETITION AS E.P. 278/13 BEFORE THE SUB COURT, KOZHIKODE.** - **EXHIBIT P6. TRUE COPY OF THE ORDER OF THE LEARNED SUB JUDGE IN E.A. 677/13 IN E.P. 278/13 DATED 11.07.2013.** - **EXHIBIT P7. TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN E.P. 278/13.** ## **RESPONDENT'S EXHIBITS:** - **EXT.R1.(A): TRUE COPY OF THE AGREEMENT DTD. 06/08/2005 EXECUTED BETWEEN PETITIONER AND RESPONDENT HEREIN.** - **EXT.R1.(B); TRUE COPY OF THE AGREEMENT DTD. 11/03/2008.** - **EXT.R1.(C): TRUE COPY OF THE COMPROMISE PETITION UNDER ORDER 23 RULE 3 OF CODE OF CIVIL PROCEDURE.** - **EXT.R1.(D): TRUE COPY OF THE AWARD DTD. 13/02/2010 PASSED BY LOK ADALATH.** - **EXT.R1.(E): TRUE COPY OF THE E.P. NO.345 OF 2011 IN O.S. NO.116/2009 FILED BEFORE THE SUB COURT, KOZHIKODE.** - **EXT.R1.(F): TRUE COPY OF THE E.A. NO. 168/2012 IN E.P. NO. 345/2011 IN O.S. NO. 116/2009 FILED BY M/S. INDUS MULTI - BUSINESS CENTRE (P) LTD., BEFORE THE SUB COURT, KOZHIKODE.** - **EXT.R1.(G): TRUE COPY OF THE E.A. NO.169/2012 IN E.P. NO. 345/2011 IN O.S. NO. 116/2009 FILED BY M.K. FARIDA HAMZA BEFORE THE SUB COURT, KOZHIKODE.** **EXT.R1.(H): TRUE COPY OF THE E.P. NO.278/2013 IN O.S. NO. 116/2009 FILED BY SHABEER ABDUL KHADER BEFORE THE SUB COURT, KOZHIKODE.** - **EXT.R1.(I): TRUE COPY OF THE OBJECTION IN E.P. NO. 278/2013 IN O.S. NO. 116/2009 FILED BY P.A. HAMZA BEFORE THE SUB COURT, KOZHIKODE.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - ## O.P.(C) No. 4480 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of February, 2014 ## **J U D G M E N T** Under challenge is Ext.P6 order whereby the court below allowed E.A.No.667/2013 in E.P.No.278/2013 in O.S.No.116/2009. 2. The facts absolutely necessary for the disposal of this petition are as follows: The respondent had instituted a suit for recovery of ₹ 375 lakhs against the petitioner as O.S.No. 116/2009. The matter was made over to Lok Adalath where the parties reached a compromise and an award was passed. As per the award, the amount was to be paid within a specific date and it was agreed that the attachment of the property effected in the suit can be made absolute. Since the petitioner herein did not honour the award, the respondent was constrained to seek execution of the same. In execution, the decree holder sought to bring the attached ## **O.P.(C) No. 4480 of 2013** **-2-** property to sale. Then, two claim petitions were filed, forestalling further proceedings in the execution. 3. The petitioner mentions that another suit, as O.S.No.167/2010 claiming about 10 crores, was filed₹ against him by one Mr. Hashim Abu Nabeel and the claim made by that person is that the portion of money that is now directed to be paid to the respondent in this case is his money. It is further pointed out that the attached property if brought to sale, personal execution sought for which has been allowed by the court below by the impugned order cannot be sustained. It is contended on behalf of the petitioner that since a charge created over the property unless the charge is exhausted, personal execution cannot be resorted to. It is also contended that the decree does not provide for personal execution and on that ground also, the order is bad. 4. The respondent has filed a counter affidavit controverting the allegations in this petition. It narrates the **-3-** ## **O.P.(C) No. 4480 of 2013** circumstances under which the award was passed and E.P. came to be filed for execution. Initially, the decree holder sought to have the attached property brought to sale as per E.P.No.345/2011. Since the immovable properties were situated in the limits of another court, the decree was transferred to the latter court. Then, two claim petitions were filed laying independent claim over the property under attachment and the adjudication of those claims are pending. Since the decree holder found that the attempt to bring the properties to sale is not yielding results, he moved E.P.No.278/2013 for personal execution after getting leave of the court. A copy of the E.P. is produced as Ext.R1. It is pointed out that the execution petition was posted for evidence and the decree holder was examined as PW1. E.P. was posted on several subsequent occasions. While E.P. was being adjourned, the O.P. came to be filed and as a result of the interim order in the O.P., no order has been passed in the E.P. ## **O.P.(C) No. 4480 of 2013** **-4-** 5. The learned counsel appearing for the petitioner pointed out that in view of the fact that a charge has been created over the immovable property under attachment and since the decree sought to be executed by proceedings against the property, unless the remedies against the properties attached are exhausted, the decree holder cannot resort to personal execution. It is also contended that the award which is deemed to be a decree for the purpose of execution does not envisage personal execution. 6. The learned counsel appearing for the respondent on the other hand pointed out that the modes of the execution of the decree are well settled that if there is any doubt, one needs to refer only to Section 51 of C.P.C. There is nothing which prevents a party from seeking simultaneous execution and that would be clear from Order XX1 Rule 21 also which reads as follows: “21. Simultaneous Execution.-- The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment debtor.” ## **O.P.(C) No. 4480 of 2013** **-5-** 7. When simultaneous execution is sought for unless the court feels that there are reasons to decline the same, the decree holder is entitled to proceed with the execution more than one way. It is therefore contended that the order impugned does not suffer from any legal infirmities. 8. The contention raised by the learned counsel for the petitioner that since the property attached as is being proceeded against, no personal execution can be taken over, does not appear to be sound in law. Of course, there may be priority regarding execution. But to say that personal execution is tabooed while proceedings are being conducted against the property attached may not be correct. 9. It is well settled that the decree holder may resort to more than one ways for execution of decree as provided under law and Order XXI Rule 21 makes it clear that unless the court feels that there are justifiable grounds, simultaneous execution cannot be declined. Therefore, the ## **O.P.(C) No. 4480 of 2013** **-6-** criticism that the court below was not justified in ordering simultaneous execution has to fail. 10. As to the contention that the award which forms part of a decree while being executed does not envisage personal execution is a matter to be gone into by the Execution Court on merits. In Ext.P6 order, which is now impugned before this Court, there is no finding in that regard and as could be seen from the counter affidavit, it is clear that the evidence has been adduced in the case and the matter is pending consideration before the lower court. 11. The learned counsel appearing for the respondent relied on the decision reported in **Om Prakash** v. **Sm. Tahera Begam and others [AIR 1955 Allahabad 382], M/s. St. Sebastians Kuries And P.Ltd.** v. **Mukundan and Others [1991 KHC 656]** and **Anjengo Coir Mattings** v. **Indian Overseas Bank [1996(1) KLT 506]** contended that simultaneous execution is permissible. ## **O.P.(C) No. 4480 of 2013** **-7-** In the result, this original petition is dismissed directing the court below to proceed with the execution petition in accordance with law. **P.BHAVADASAN JUDGE** ds