Suresh M.R vs Vasanthakumar

Type Court Judgment Court Kerala Decided Feb 03, 2021

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Citation: sooperkanoon.com/1692709
Court: Kerala High Court
Judge: Honourable Mr. Justice Sathish Ninan
Decided On: Feb 03, 2021
Case Number: OP(C)/1645/2020

Parties & Advocates

Appellant / Petitioner

Suresh M.R

Respondent

Vasanthakumar

Excerpt

.....boundary could not have been the property of the judgment debtor. if it was the southern 22 cents out of the 53 cents on the north, then the southern boundary should have beenthe property of the judgment debtor; but the southern boundary of the property sold is the property of one “unnikrishnan and parayil”. the sy. number of the property included in the award and sale and sought to be delivered over is sy. no.293/2 and its northern boundary is the property of the judgment debtor himself. therefore, the extent tallies, survey number tallies and but for the non-mentioning of road also as a boundary in addition to the property of sasikumar, the boundaries also tally. therefore, there is no scope for any ambiguity regarding the identity of the property. -: 5 :-8. matters does not end there; the judgmentdebtor himself had, in an earlier round of litigation, admitted the identity of the property sold as, the southern 22 cents. claiming a right of way through this 22 cents to the northern 53 cents, the judgment debtor had approached this court in op(c) 3402/2017. therein the judgment debtor has categorically averred thus, “the petitioner hereinwas trying to arrange the funds by selling an adjoining property which is having an extent of 53 cents. the access to the said property is through 3.5 metre wide pathway through the property notified for sale in ext.p7”. in ext.p7 mentioned therein, the property notified for sale was the 22 cents in sy.293/2 lying on the south of the 53 cents. therefore, it is evident that the property included in the award and which was sold is, the 22 cents which lies on the south of the 53 cents belonging to the judgment debtor and it was always understood so.9. it is important to note that, along with the said original petition (o.p.(c) 3402 of 2017), the -: 6 :-judgment debtor had produced a rough sketch of theproperties, which was marked as ext.p12 in the said original petition. therein he has clearly demarcated the 53 cents in.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN WEDNESDAY, THE 3RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942 OP(C).No.1645 OF 2020 AGAINST THE ORDER DATED 30.10.2020 IN EA 542/2020 AND IN EA 1ST ADDITIONAL SUB COURT THRISSUR ----- PETITIONER/PETITIONERS/JUDGMENT DEBTOR: SURESH M.R AGED 48 YEARS S/O RAMAKRISHNAN, MANALUMKUNNATH HOUSE, THEKKUMKARA VILLAGE, THEKKUMKARA P.O., THALAPPILLY TALUK, THRISSUR DISTRICT-680 589 BY ADVS. SRI.LINDONS C.DAVIS SMT.E.U.DHANYA RESPONDENT/RESPONDENT/DECREE HOLDER: VASANTHAKUMAR AGED 62 YEARS S/O AYYAPPAN, CHENDRA VEETIL, ARANATTUKARA P.O. THRISSUR TALUK, THRISSUR DISTRICT-680 618. R1 BY ADV. KALEESWARAM RAJ THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
================== ================== Dated this the 3rd day of February, 2021

JUDGMENT

The matter arises in execution of a compromise decree. The issue, as is presently raised, is regarding the identity of the property to be delivered over in execution. The petitioner is the

judgment debtor and the respondent is the decree

holder.

2. The litigation between the parties, as POP 24.07.2015 and an award passed. As per the award, the judgment debtor was to pay an amount of `39 lakhs to the decree holder. A charge was created

over 22 cents of property in Sy. No.293/2 of Thekkumkara village for the said amount. On the failure of the judgment debtor to pay the debt, the decree holder initiated execution proceedings. The property was sold and was purchased by the decree holder. Application was filed for delivery of the

property. Delivery is objected to by the judgment

-: 2 :- debtor on the ground of identity of the property. The judgment debtor, also filed an application under Section 47 raising challenge on identity. The execution court, relying in the commissioner's report and the other available materials overruled the objections and ordered delivery.

3. Heard Smt.Dhanya.E.U on behalf of the petitioner-judgment debtor and Smt.A.Aruna on behalf of the respondent-decree holder.

4. The property included in the compromise decree and which was sold in execution, and sought to be delivered is, 22 cents in Sy. No.293. The challenge on identity is only with reference to the

eastern           boundary             of    the        property.          As    per   the
description                 of     the      property           sold,       the     eastern
boundary             is          the     property            of      one        Sasikumar.
According             to         the     judgment            debtor,       the     eastern

boundary of the 22 cents in Sy. No.293/2 is, “road and property of Sasikumar” and is hence, not the property sold. He would further contend that, the property having the eastern boundary as “property of Sasikumar” is his 53 cents in Sy. No.292/2 which -: 3 :- lies on the immediate northern side of the 22 cents which is now sought to be delivered over. According to the judgment debtor he has no objection in 22 cents being carved out from the said 53 cents on the north.

5. From the materials on record it is evident that, the judgment debtor owns 2 items of properties lying adjacent to each other; 22 cents in Sy. No.293/2 on the south and 53 cents in Sy. No.292/2 on its immediate north. The eastern boundary of the 53 cents in Sy. No.292/2 is “the property of Sasikumar”, whereas the eastern boundary of the 22 cents in Sy. 293/2 is, “road and the property of Sasikumar”.

6. The award of the Lok Adalath and the

subsequent sale deed described the eastern boundary of the 22 cents in Sy. No.293/2 as, “property of Sasikumar”; it omitted to mention about the road. That it was only an omission and it does not in any manner affect the identity of the property as demonstrated hereunder. -: 4 :-

7. The northern boundary description of the

property included in the award as well as in the sale is, the property of the judgment debtor. If it was the northern 53 cents that was included in the award, then the northern boundary could not have been the property of the judgment debtor. If it was the southern 22 cents out of the 53 cents on the north, then the southern boundary should have been

the property of the judgment debtor; but the southern boundary of the property sold is the property of one “Unnikrishnan and Parayil”. The Sy. number of the property included in the award and sale and sought to be delivered over is Sy. No.293/2 and its northern boundary is the property of the judgment debtor himself. Therefore, the extent tallies, survey number tallies and but for the non-mentioning of road also as a boundary in addition to the property of Sasikumar, the boundaries also tally. Therefore, there is no scope for any ambiguity regarding the identity of the property. -: 5 :-

8. Matters does not end there; the judgment

debtor himself had, in an earlier round of litigation, admitted the identity of the property sold as, the southern 22 cents. Claiming a right of way through this 22 cents to the northern 53 cents, the judgment debtor had approached this Court in OP(C) 3402/2017. Therein the judgment debtor has categorically averred thus, “the petitioner herein

was trying to arrange the funds by selling an adjoining property which is having an extent of 53 cents. The access to the said property is through 3.5 metre wide pathway through the property notified for sale in Ext.P7”. In Ext.P7 mentioned therein, the property notified for sale was the 22 cents in Sy.293/2 lying on the south of the 53 cents. Therefore, it is evident that the property included in the award and which was sold is, the 22 cents which lies on the south of the 53 cents belonging to the judgment debtor and it was always understood so.

9. It is important to note that, along with the said original petition (O.P.(C) 3402 of 2017), the -: 6 :-

judgment debtor had produced a rough sketch of the

properties, which was marked as Ext.P12 in the said Original Petition. Therein he has clearly demarcated the 53 cents in Sy. No.292/2 on the north and 22 cents in Sy. No.293/2 on its south, and the southern 22 cents as the property sold in execution. Therefore, the challenge on identity, presently raised by the judgment debtor, lacks merit and bona fides.

10. The judgment debtor had been repeatedly

trying to stall the execution in one manner or the other. The common judgment in O.P.(C) Nos.3402/2017 and 3178/2019 refers to the same; they are not being reiterated here since it is not necessary for adjudication of the present issue but to notice his conduct. The present objection regarding identity is also nothing but an attempt to hamper the execution. Having found that the objection raised regarding the identity of property is not bona fide and is without any substance, there is no warrant to accede to the prayer of the petitioner-judgment debtor for remitting the matter back to the -: 7 :- execution court for taking evidence on the application. The Original Petition lacks merit and is accordingly dismissed. Sd/- SATHISH NINAN JUDGE kns/- //True Copy// P.S. to Judge OP(C).No.1645 OF 2020 APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1              A TRUE COPY OF P.O.P.12/14
EXHIBIT P2              A TRUE COPY OF EP 26/16 IN P.O.P 12/14
EXHIBIT P3              A TRUE COPY OF DELIVERY APPLICATION NUMBERED

EA 263/2019 FILED BY THE RESPONDENT HEREIN EXHIBIT P4 A TRUE COPY OF APPLICATION NUMBERED EA EXHIBIT P5 A TRUE COPY OF THE SALE CERTIFICATE DATED 28.5.2019 EXHIBIT P6 A TRUE COPY OF DOCUMENT OF THE PETITIONER NUMBERED 1272/2004 OF WADAKKANCHERY SRO EXHIBIT P7 A TRUE COPY OF APPLICATION NUMBERED EA EXHIBIT P8 A TRUE COPY OF THE COMMISSION REPORT DATED 21.8.2020 WITH SKETCH

EXHIBIT P9              A TRUE COPY OF THE OBJECTION DATED 24.8.2020
EXHIBIT P10             A TRUE COPY    OF    APPLICATION   NUMBERED   EA
EXHIBIT P11             A TRUE COPY    OF    APPLICATION   NUMBERED   EA
EXHIBIT P12             A TRUE COPY OF THE ORDER DATED 30.9.2020 IN

EA 542/2020 EXHIBIT P13 A TRUE COPY OF THE ORDER DATED 5.10.2020 IN EA 549/2020 RESPONDENT'S/S EXHIBITS: EXHIBIT R1A TRUE COPY OF THE AGREEMENT DATED 24/08/2013 ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT. EXHIBIT R1B TRUE COPY OF THE AWARD OF THE LOK ADALATH DATED 24/07/2015. EXHIBIT R1C TRUE COPY OF THE SALE PROCLAMATION DATED APPENDIX-OP(C).No.1645 OF 2020 -2- EXHIBIT R1D TRUE COPY OF THE ODER DATED 10/12/2018 IN E.A.NO.161/2018. EXHIBIT R1E TRUE COPY OF THE ORDER DATED 06/04/2019 IN E.A.89/2019.. EXHIBIT R1F TRUE COPY OF THE ORDER DATED 23/11/2019 IN EA.834/2019 AND EA.835/2019. EXHIBIT R1G TRUE COPY OF THE ORDER DATED 23/11/2019 IN EA.263/2019. EXHIBIT R1H TRUE COPY OF THE COMMON JUDGMENT DATED OP(C).3178/2019. EXHIBIT R1I TRUE COPY OF THE COUNTER STATEMENT FILED IN EA.542/2020. EXHIBIT R1J TRUE COPY OF THE COUNTER STATEMENT FILED IN EA.549/2020. EXHIBIT R1K TRUE COPY OF THE MEDICAL ECORDS OF THE DAUGHTER OF THE RESPONDENT. EXHIBIT R1L TRUE COPY OF THE JUDGMENT DAED 05/04/2017 IN OP(C).1137/2017. -----

Same Court & Year Kerala · 2021 Same Parties Suresh M.R vs Vasanthakumar Same Judge Honourable Mr. Justice Sathish Ninan