Vijayan v. Martha and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 Ex.FA.No. 64 of 2008() ---------------------AGAINST THE ORDER DATED 20/09/2008 IN E.A. 1183/04 IN E.A.438/01 IN E.P.21/91 IN O.S.64/1980 of PRL.SUB COURT,IRINJALAKUDA .................... ## APPELLANT:PETITIONER: ------------------------------- VIJAYAN, AGED 55, S/O.MANIKKUTTY, KATTILAVALAPPIL HOUSE, VELUKKARA VILLAGE AND DESOM MUKUNDAPURAM TALUK. BY ADV. SRI.T.N.MANOJ ## RESPONDENTS: RESPONDENTS: --------------------------- 1. MARTHA, W/O.LATE KULAVEETIL ITTIACHAN AYYANTHOLE VILLAGE DESOM, THRISSUR TALUK. 2. MEGY, D/O.LATE KULAVEETIL ITTIACHAN AYYANTHOLE VILLAGE DESOM, THRISSUR TALUK. 3. GEORGE, S/O.LATE KULAVEETIL ITTIACHAN AYYANTHOLE VILLAGE DESOM, THRISSUR TALUK. 4. ANTONY, S/O.LATE KULAVEETIL ITTIACHAN AYYANTHOLE VILLAGE DESOM, THRISSUR TALUK. 5. DOMINIC, S/O.LATE KULAVEETIL ITTIACHAN AYYANTHOLE VILLAGE DESOM, THRISSUR TALUK. 6. JESSY, D/O.LATE KULAVEETIL ITTIACHAN AYYANTHOLE VILLAGE DESOM, THRISSUR TALUK. 7. SABURAJ, S/O.LATE KULAVEETIL ITTIACHAN AYYANTHOLE VILLAGE DESOM, THRISSUR TALUK. 8. JAMES, S/O.LATE KULAVEETIL ITTIACHAN AYYANTHOLE VILLAGE DESOM, THRISSUR TALUK. Ex.F.A.64/08 9. JOHNY, S/O.LATE KULAVEETIL ITTIACHAN AYYANTHOLE VILLAGE DESOM, THRISSUR TALUK. 10. YACOB, S/O.CHIRAMEL KOLENKANNY KOCHAPPU, VELOOKARA VILLAGE, MUKUNDAPURAM TALUK. R5 BY ADV. SRI.RENJITH THAMPAN THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON 05/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C. KURIAKOSE,J.** **- - - - - - - - - - - - - - - - - - - - - - - - -** Ex.F.A.No.64 of 2008 **- - - - - - - - - - - - - - - - - - - - - - - - -** Dated: 5[th] November, 2008 ## **JUDGMENT** Under challenge in this Execution First Appeal is the order passed by the Execution Court in E.A.No.1183 of 2004 filed by the appellant seeking adjudication of his rights, title and interest over the petition schedule properties. According to the petitioner, his father Manikutty purchased the petition schedule property from the 10[th] respondent-Yacob for valid consideration vide document No.1789/83 of Vadakumkara S.R.O. Later vide document No.1806/92 and 2003/92 of the same S.R.O. Manikutty settled the properties in favour of the petitioner. Enquiries by the petitioner revealed that suit O.S.No.64/1980 was filed by one Ittiachian, the predecessor-ininterest of respondents 1 to 9 herein against the 10[th] respondentYacob seeking specific performance of a contract for sale of the petition schedule properties along with certain other extents and that the said suit was decreed ex parte on 16.3.1984 and that petition had been filed by the decree-holders for getting delivery of the properties covered by the decree. It was at that time that E.A.No.1183/04 filed by the appellant under Order XXI Rule 99 seeking adjudication of his right, title and interest over the properties and for a declaration that Ex.F.A.No.64/08 - 2 - respondents 1 to 9 are not entitled for delivery of the property as sought for in the E.P. Other persons similarly circumstanced as the petitioner who had also purchased properties from Yacob filed separate petitions seeking adjudication of their rights over their respective extent of properties. The grievance of the petitioner is that under the impugned order, the learned Subordinate Judge dismissed the petition filed by the appellant holding that the appellant and other petitioners have no right to get their rights adjudicated since they are transferees pendente lite. 2. In anticipation of the appeal, the respondent-decree-holders had lodged caveat O.P.No.929/08 and when the appeal came up for admission, I have heard the submissions of Mr.T.N.Manoj, learned counsel for the appellant and Mr.Ranjith Thampan, learned counsel for the 5[th] respondent (one of the decree-holders who had lodged caveat). 3. Mr.T.N.Manoj, learned counsel for the appellant would argue that the view of the learned Subordinate Judge that a transferee pendente lite is not entitled for adjudication of claims under Order XXI Rule 102 C.P.C. is incorrect. Counsel submitted that Order XXI Rule 102 contemplates adjudication as to obstructions to delivery in Ex.F.A.No.64/08 - 3 - pursuance of a decree for possession of immovable properties. Counsel highlighted that the decree in O.S.No.64/1980 was a decree for specific performance which dealt with contractual obligations of the vendor and the vendee and did not deal with the title over the properties so as to defeat the right of the appellant to have adjudication of his right, title and interest of the property conducted under Order XXI Rule 99. Counsel argued that the actual impact of Section 52 of the Transfer of Property Act while read harmoniously with Section 19(2) of the said Act was not taken into account by the learned Subordinate Judge. The appellant was a bonafide purchaser of the property before decree was passed and hence in as much as the appellant was not made a party to the suit, the decree could not be enforced against the appellant and the appellant could not be dispossessed on the strength of that decree. The distinction between the binding nature of the decree and the enforceability of the decree has not been kept in mind by the learned Subordinate Judge, according to the counsel. Counsel submitted that the court below after having found that the encumbrance certificate did not reveal any order of attachment should have found that the appellant is a bonafide purchaser and had no opportunity of the notice of the suit or Ex.F.A.No.64/08 - 4 - execution proceedings. It should have been found by the court below that the decree and proceedings were kept unknown to the appellant and similarly situated persons over a span of 25 long years by not making entries in the registry records about the alleged attachment order and that was the prime reason for the appellant and the similar transferees of different portions of the property to purchase the property without knowing the alleged order of attachment. The pleadings of the parties have been misconstrued by the court below, according to the counsel. Counsel submitted that though the decree is of the year 1984, the execution petition was filed only in the year 1991 and the petitioner came to have notice of the proceedings only in the year 2004. Counsel submitted that the proceedings leading to the decree were collusive in nature and hence the provisions contained in Section 52 of the T.P.Act dealing with lis pendens could not have any application. Binding judicial precedents governing the point were ignored by the court below, counsel submitted. Mr.Manoj would rely on the judgment of this court in **Padmaja v. Sajeev** (2006(1) KLT 265). He also relied on the judgment of the Supreme Court in **Durga Prasad v. Deep Chand** (AIR 1954 S.C. 75) and the judgment in **Sreenivasan v. Peter Jebaraj** (CDJ 2008 SC 663). Ex.F.A.No.64/08 - 5 - Mr.Manoj also relied on the judgment of the Supreme Court in **Sanjay Verma v. Manik Roy** (2006(8) Supreme 1007). 4. Mr.Ranjith Thampan, learned counsel for the caveator was able to meet all the submissions of Mr.Manoj. Mr.Ranjith Thampan relied on the judgment of the Supreme Court in **Guruswamy Nadar v. P.Lakshmi Ammal(D) through Lrs.** (ILR 2008(2) Ker. 473) and the judgment of this court in **Padmaja v. Sajeev** (supra). Mr.Thampan also relied on the judgment of this court in **Musthafa v. Andrews** (ILR 2006(1) Ker. 18). As directed by me copy of the petition was placed before me by Mr.Manoj. 5. Despite the persuasive and learned submissions of Mr.T.N.Manoj, I am unable to agree that the order under appeal warrants interference. Admittedly, the document under which the appellant claims title came into existence only after the commencement of the litigation, namely O.S.No.64/80. O.S.No.64/80 was obviously a suit for specific performance of a contract for sale of the property scheduled therein – the decree schedule property. Per se the document under which the appellant claims title is hit by the doctrine of lis pendens. Even assuming that the appellant was a bonafide purachser for value without notice of the agreement for sale Ex.F.A.No.64/08 - 6 - which has relied for the decree under execution, then also the judgment of the Supreme Court in **Guruswamy Nadar's** case (supra) decides the issue against the appellant. In other words, all the arguments advanced by Mr.Manoj stands answered by the Supreme Court through that judgment and the order impugned in this appeal is supported by the above judgment of the Supreme Court. 6. The result is that the appeal fails and the same will stand dismissed. However in reiteration of the interim directions issued by me on 5.11.2008, there will be a direction to the respondents-decreeholders not to demolish the buildings which exists on the decree schedule property as of now, for a period of three months of taking possession of the properties through the execution court. srd ## **PIUS C.KURIAKOSE, JUDGE**