Thomas, Jose Thomas, and Jiby Thomas v Hydross

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 8[TH] DAY OF FEBRUARY 2022 / 19TH MAGHA, 1943** ## **OP(C) NO. 246 OF 2022** **IN CHALLENGE OF THE ORDER DATED 27.11.2021 IN E.A NO.167/2021 IN E.P.NO. 69/2019 IN O.S NO.199/2013 ON THE FILE OF SUB COURT,** ## **OTTAPPALAM** ## **PETITIONERS/RESPONDENTS/JUDGMENT DEBTORS** **1 THOMAS, AGED 90 YEARS S/O.OUSEPH, KIZHAKKEL HOUSE, KANDAMANGALAM DESOM, KOTTOPADAM VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.** **2 JOSE THOMAS, AGED 61 YEARS S/O.THOMAS, KIZHAKKEL HOUSE, KANDAMANGALAM DESOM, KOTTOPADAM VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.** **3 JIBY THOMAS, AGED 57 YEARS S/O.THOMAS, KIZHAKKEL HOUSE, KANDAMANGALAM DESOM, KOTTOPADAM VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 582.** **BY ADVS. P.JAYARAM GIGI PAPPACHAN K.R.PAUL** ## **RESPONDENT/PETITIONER/DECREE HOLDER** **HYDROSS, AGED 59 YEARS S/O.MOOSAN, ULLATTUKUDIYIL HOUSE, P.O.VENGOLAKARA, ARACKAPPADY VILLAGE, KUNNTHUNADU TALUK, ERNAKULAM DISTRICT-683 556.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(C) No.246 OF 2022 2 ## _**`"C.R"`**_ ## **`JUDGMENT`** ``` Judgment debtors in E.P. No.69/2019 in O.S No.199/2013 is aggrieved in the matter of order dated 27.11.2021 in E.A No. 167/2021, whereby the learned Munsiff attached the property belonged to the judgment debtors excluding the property where charge was created under Section 55(4)(b) of the Transfer of Property Act, with a view to sell the same to realize the decree debt. ``` ``` 2.Heard the learned counsel for the petitioners on admission. ``` ``` 3.An interesting question arises for consideration in this matter is; whether a decree holder who obtained a charge decree in terms of section 55 (4) (b) of the Transfer of Property Act is precluded from proceeding against the judgment debtors by issuing warrant of arrest on finding means or by attaching and selling ``` OP(C) No.246 OF 2022 3 ## _**`other properties/assets excluding the property where the statutory charge is created ?`**_ ``` 4.It is submitted by the learned counsel for the petitioners, at the time of admission that, the decree is for payment of advance amount in consequence of a sale agreement entered into between the parties. Therefore, statutory charge under 55 (4) (b) is there. In such contingency, the decree holder shall proceed against the property first, and thereafter only the other proceedings is liable to be initiated. In support of this contention, the learned counsel placed decision reported in [A.I.R.1935 Nagpur 129], Fatehchand Mangilal Marwadi v. Indian Cotton Co. Ltd, Bombay. ``` ``` 5.I have perused the said decision and it was held therein that where a charge is created in the decree, the decree over certain specified properties for the payment ``` 4 OP(C) No.246 OF 2022 ``` of the decree amount, the decree holder should first exhaust his remedy against the charged property before proceeding against the other property. In the event of the charge proving insufficient to realise the decree, there is nothing to prevent the decree holder from proceeding against the other property. ``` ``` 6.The said decision was rendered while dealing with Section 100 of the Transfer of Property Act. ``` ``` 7.I am inclined to distinguish the ratio of the said decision which was rendered during 1935. In fact, a decree holder who obtained a decree for realization of money without any charge on any property is permitted legally to proceed against the judgment debtor in person as well as by attachment and sale of all his assets, both movable and immovable. In the decision reported in [1996 KHC 107 : 1996 (1) KLT 506] : 1996 (1) KLJ 504], ``` OP(C) No.246 OF 2022 5 ``` Anjengo Coir Mattings v. Indian Overseas Bank, this Court held that there is no bar in law to proceed simultaneously against the person and property of the judgment debtor while executing a decree. Thus the law permits an ordinary decree holder to decide himself the mode of execution so as to get the decree debt realised according to his choice. I don't think that a decree holder who obtains a charge decree is in a weaker position than that of an ordinary decree holder who doesn't have any charge to realise the decree debt. It is to be noted that a decree holder who obtains a decree by creating charge upon a property or protected by a statutory charge is in a more better position than that of a decree holder without the aid of a charge decree. If so, it cannot be digested to prudence that a decree holder who obtained a charge decree can realise the decree debt only by proceeding against the charged ``` OP(C) No.246 OF 2022 **==> picture [7 x 7] intentionally omitted <==** ``` property and his right to get the decree executed in other modes can be opted after exhausting the proceedings against the charged property. ``` ``` 8.Therefore, I am of the view that even in the case of charge decree also the decree holder's position is at par with an ordinary decree holder who doesn't have a charge decree. In view of the matter, the contention raised by the learned counsel for the petitioner cannot be countenanced. I am of the view that the decree holder can proceed against the judgment debtor/s either by issuing warrant or to attach and by sale of any other assets including movable and immovable even in the case of a charge decree by creation of law or otherwise. ``` ``` Therefore, the impugned order of the learned Munsiff doesn't suffer from any perversity, arbitrariness ``` OP(C) No.246 OF 2022 **==> picture [7 x 7] intentionally omitted <==** ``` or absolutely illegality. Therefore, the same is liable to be upheld. Consequently, this Original Petition stands dismissed. ``` **Sd/-** ``` A. BADHARUDEEN, JUDGE ``` ``` Cak ``` OP(C) No.246 OF 2022 8 ## **APPENDIX OF OP(C) 246/2022** PETITIONER EXHIBITS ## **Exhibit P1** **COPY OF THE ORDER DATED 27.11.2021 IN E.A NO.167/2021 IN E.P.NO.69/2019 IN O.S NO.199/2013 ON THE FILES OF SUB COURT, OTTAPALAM.** **Exhibit P2** **TRUE COPY OF THE JUDGMENT DATED 11.07.2016 IN O.S.NO.199/2013 ON THE FILES OF SUB COURT, OTTAPALAM.** **Exhibit P3** - **TRUE COPY OF THE DECREE DATED 11.07.2016 IN O.S.NO.199/2013 ON THE FILES OF SUB COURT, OTTAPALAM.** - **Exhibit P4 TRUE COPY OF THE E.P.NO.69/2019 IN O.S.NO.199/2013 ON THE FILES OF SUB COURT, OTTAPALAM.** - **Exhibit P5 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN E.A NO.167/2021 IN E.P.NO.69/2019 IN O.S NO.199/2013 ON THE FILES OF SUB COURT, OTTAPALAM.** **Exhibit P6 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT NO.2 IN E.A NO.167/2021 IN E.P.NO.69/2019 IN O.S NO.199/2013 ON THE FILES OF SUB COURT, OTTAPALAM.** ``` //TRUE COPY// ``` ``` PA TO JUDGE ```