T. SHYAM PRASAD v. P.T. NISHA and R.M. SUDARSAN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945** ## **EX.SA NO. 11 OF 2023** **AGAINST THE JUDGMENT DATED 26.07.2023 IN AS NO.91 OF 2022 OF ADDITIONAL DISTRICT COURT - II, KOZHIKODE AND ORDER DATED 12.08.2022 IN EA.NO.333/2022 IN EP NO.607 OF 2017 IN OS.NO.18/2006 OF ADDITIONAL SUB COURT - I, KOZHIKODE** ## **APPELLANT/APPELLANT/CLAIM PETITIONER:** **T.SHYAM PRASAD, AGED 39 YEARS S/O.DR.A.RAJAGOPAL, RAJAGIRI, NELLIKKODE, NELLIKODE AMSOM, DESOM, KOZHIKODE TALUK KOZHIKODE DISTRICT,, PIN - 673016 BY ADVS. P.U.SHAILAJAN NIDHEESH T.P MIDHUN SUDARSANAN P.** ## **RESPONDENTS/RESPONDENTS/RESPONDENTS/DECREE HOLDER AND JUDGMENT** ## **DEBTOR/PLAINTIFF&DEFENDANT:** **1 P.T.NISHA AGED 46 YEARS W/O.KRISHNAKUMAR, PULIYERI HOUSE, VENGERI AMSOM, DESOM, KOZHIKODE DISTRICT,, PIN - 673010 2 R.M.SUDARSAN, AGED 54 YEARS S/O.R.M.KARUNAKARAN, DIRECTOR, CONCORD LEASING AND HIRE PURCHASE PRIVATE LIMITED, CHILANKA, CHEVARAMBALAM P.O, CHEVAYUR AMSOM AND DESOM, KOZHIKODE DISTRICT,, PIN - 673317 BY ADVS. FIROZ K.M. - R1 M.SHAJNA(K/1017/2006) - R1** ## **THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON** ## **06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EX.SA NO. 11 OF 2023** **2** ## **J U D G M E N T** (Dated this the 6[th] day of March, 2024) This Second Appeal has been filed under Section 100 Order XLII Rule I r/w Order XXI Rule 58 of the Code of Civil Procedure, challenging the verdicts in A.S.No.91/2022 on the files of the Additional District Court - II, Kozhikode arising from the verdict in E.A.No.333/2022 in E.P.No.607/2017 in O.S.No.18/2006 on the files of the Additional Sub Court, Kozhikode. 2. Heard the learned counsel for the appellant, who is the claim petitioner in E.A.No.333/2022 and the learned counsel for the 1[st] respondent, who is the decree holder in O.S.No.18/2006, on admission. 3. I shall refer the parties in this second appeal as 'claim petitioner' and 'decree holder'. 4 **.** The claim petitioner filed E.A.No.333/2022 when building No.D.588.2.2.4 was proposed to be sold in execution of the decree in O.S.No.18/2006 on the files of the First Additional Sub Court, Kozhikode. The contention raised by the claim petitioner before the execution court was that the so-called shop **EX.SA NO. 11 OF 2023** **3** room was actually purchased by the claim petitioner as per sale certificate issued by the Sub Judge, Kozhikode as on 02.11.2018. According to the claim petitioner, E.P.No.363/2009 in O.S.No.246/2006 led to the issuance of sale certificate in favour of the claim petitioner after confirmation of sale and delivery thereof. Then, the claim petitioner contended that the building No.D.588.2.2.4 is the property he obtained as per sale certificate issued on 02.11.2018 and therefore, the same could not be sold in execution of the decree in O.S.No.18/2006. 5. The decree holder resisted the same specifically contending that the property proposed for sale in E.P.No.607/2017 is different from one covered by the sale certificate. Therefore, the claim petitioner could not succeed. 6. The trial court recorded evidence. PW1 - the claim petitioner, was examined and Exts.A1 to A4 were marked. Ext.B1 - encumbrance certificate produced by the 1[st] respondent/decree holder also was marked. 7. Finally, the trial court dismissed the claim petition holding that the property covered by Ext.A1 sale certificate issued in the name of the claim petitioner is 'building No.C.588.2.2.4' and the property proposed to be sold in **EX.SA NO. 11 OF 2023** **4** E.P.No.607/2017 is one shown as 'building No.D.588.2.2.4', which is scheduled in the claim petition **.** The appellate court also confirmed the said finding in an appeal filed challenging the verdict of the execution court for the same reasons. 8. The learned counsel for the claim petitioner submitted that the number is mistakenly shown in the sale certificate and the property delivered in execution of decree in O.S.No.246/2006 in E.P.No.363/2009 is the property scheduled in claim petition. 9. The learned counsel appearing for the decree holder submitted that the present execution is proposing sale of building No.D.588.2.2.4 and not building No.C.588.2.2.4 and therefore, the claim petition must fail, since the claim petitioner did not obtain building No.D.588.2.2.4, as per Ext.A1. 10. On perusal of Ext.A1 sale certificate, it is emphatically clear that room bearing No.C.588.2.2.4 is one purchased by the claim petitioner and he did not purchase the room bearing No.D.588.2.2.4, scheduled in the claim petition as per Ext.A1 11. In fact, no materials available before this Court to hold that the room bearing No.C.588.2.2.4 obtained by the claim petitioner as per Ext.A1 sale certificate and room bearing **EX.SA NO. 11 OF 2023** **5** No.D.588.2.2.4 are one and the same. It is in this backdrop, the trial court as well as the appellate court rightly nonsuited the claim petitioner holding so. 12. On evaluation of materials as discussed herein above, no substantial question of law arises to admit and maintain this appeal and therefore, this appeal deserves dismissal. 13. In this case, in fact, the learned counsel for the appellants/defendants failed to justify any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus: _**“2. Power of Court to direct that the appeal be heard on the question formulated by it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 14. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by **EX.SA NO. 11 OF 2023** **6** any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 15. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]** , the Apex Court held that: **EX.SA NO. 11 OF 2023** **7** _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ 16. In a latest decision of the Apex Court in **Government of Kerala v. Joseph** , reported in **[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]** , it was held, after referring **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179] (three – Judge** Bench) _,_ as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 17. The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under **EX.SA NO. 11 OF 2023** **8** Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial _question of law” by suffixing the words “of general importance”_ as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 18. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. 19. In the result, this appeal is found to be meritless and **EX.SA NO. 11 OF 2023** **9** the same is dismissed without being admitted. All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal stand dismissed. It is made clear that, in execution of the decree in O.S.No.18/2006, as per the proceedings in E.P.No.607/2017, building No.C.588.2.2.4 is not liable to be sold, since attachment if any, in relation to building No.C.588.2.2.4 would not make the sale as per Ext.A1 non-est and an attachment by itself would not create any substantial right over the property attached, though private alienation of property attached is void as per Section 64 of the Code of Civil Procedure. At the same time, sale proceedings in respect of the building No.D.588.2.2.4 can go on. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. ## **SD/-** **A. BADHARUDEEN** ## **JUDGE** rp