Kerala High Court
A.M.Sali Maulavi vs S.Sasidharan Pillai on 15 January, 2020
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941
EFA.No.48 OF 2001
AGAINST THE ORDER IN EA NO.32/95 AND 33/95 IN EP NO.138/93 OF THE
SUB COURT, KOTTARAKKARA IN OS 1531/1991 DATED 11-10-2001 OF
SUB COURT,KOTTARAKKARA
APPELLANT/1ST RESPONDENT/DECREE HOLDER:
A.M.SALI MAULAVI,
DARSALAM, VATTIYOORKAVU VILLAGE,
TRIVANDRUM.
BY ADVS.
SRI.M.A.ABDUL HAKHIM
SRI.SIBY J.MONIPPALLY
RESPONDENTS/CLAIM PETITIONERS/2ND RESPONDENT AND JUDGMENT DEBTOR:
1 S.SASIDHARAN PILLAI
S/O SREEDHARAN PILLAI, TC 15/1502,
VAZHUTHACAUD,RESIDING AT ROHINI, AERAM,
THADICAUD PO,ANCHAL VILLAGE, KOLLAM DISTRICT
2 A S ABDUL HASHIM
S/O SULAIMAN KUNJU,VALIYA VEEDU,AREATHU CHERI,
CHATHANNOOR VILLAGE, KOLLAM DISTRICT
R1 BY ADV. SRI.T.K.MARTHANDAN UNNITHAN
R1 BY ADV. SRI.K.P.UNNIKRISHNAN
THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06-07-
2018, THE COURT ON 15-01-2020 DELIVERED THE FOLLOWING:
EFA.No.48 OF 2001 2
JUDGMENT
The decree holder in a suit has filed this Execution First Appeal challenging the order of the Sub Judge, Kottarakkara, issued in E.A.No.32 of 1995, and E.A.No.33 of 1995, as per which, the claims asserted by the 1st respondent has been upheld and the earlier order of attachment obtained by him over the property owned by the 2nd respondent, who is the judgment debtor, has been found inoperable.
2. The apercus of the facts involved would show that the appellant herein had filed O.S.No.1531/1991, on the files of the Sub Court, Kottarakkara, against the 2nd respondent herein seeking a decree for certain amount of money and that it was decreed on 20/10/1992, for an amount of Rs.91,840/-, along with future interest. The appellant says that along with the suit, he had moved an application for attachment before judgment of the property in question and that this was allowed by the Court below by order dated 01/01/1992, which was effected on 03/01/1992 as per the provisions of EFA.No.48 OF 2001 3 Order 21 Rule 54 of the Code of Civil Procedure (hereinafter referred to as 'CPC' for short).
3. The appellant says that, thereafter, once he obtained the decree, he put it to execution, at which time, the 1st respondent herein filed the afore mentioned two applications; one making a claim under Order 21 Rule 58 of the CPC over the property in question and the other for stay of the sale proceedings, pending adjudication of the former application. The appellant says that the Court below, without consideration of the facts involved in its proper perspective, allowed both the applications through the impugned order; and thus prays that it be set aside.
4. I have heard Shri.M.A.Abdul Hakhim, learned counsel for the appellant, but did not have the opportunity of hearing the version of the respondents, since they were neither present in person nor represented through counsel at the time when this matter was heard. In fact, there was no representation for them either on 14/01/2020 or on 15/01/2020, when EFA.No.48 OF 2001 4 this matter was considered earlier, thus constraining me to dispose of this appeal in their absence.
5. As is ineluctable from the impugned order, three reasons have weighed with the Court below in allowing the applications of the 1st respondent. For the first, the court below has found that in the Encumbrance Certificate produced on record by the 1st respondent- claimant, namely Ext.A3, there is no mention regarding the earlier attachment ordered by the Court; for the second, that the order of attachment had not been properly communicated to the office of the Sub Registrar, as required under Section 89(5) of the Registration Act, 1908; and thirdly, that the earlier interim order of attachment had not been made final by the Court subsequently.
6. Shri.M.A.Abdul Hakhim, learned counsel for the appellant, contested all the afore findings of the court below, asserting that these have been arrived at without proper appreciation of the materials and evidence EFA.No.48 OF 2001 5 available.
7. On the first and second aspects afore, he says that Ext.A3 is an Encumbrance Certificate produced on record by the claim petitioner and that mere absence of an endorsement therein regarding the attachment over the property covered by it, it could not have led the court below to find against the attachment particularly, because it has also come out in evidence that a subsequent registered sale agreement executed by the 2nd respondent with another person, namely Pookoya Thangal, which has been marked on record as Ext.B1, has also not found a place in the said Encumbrance Certificate. He says that Ext.A3, therefore, could not have been accepted as the sole criteria by the court below to find against the alleged non-communication of the attachment order to the Sub Registrar's Office.
8. As an alternate argument on this issue, Shri.M.A.Abdul Hakhim submits that, going by Order 21 Rule 54 of the CPC, the Court Amin had communicated the order of attachment EFA.No.48 OF 2001 6 as is required therein and has also filed the record of the same before the court below and therefore, that the alleged non-communication of the order to the office of the Sub Registrar would be of no consequence, it not being so mandated by the afore provision of the CPC.
9. On the third aspect, Shri.M.A.Abdul Hakhim submits that the finding of the Execution Court, that the order of attachment had not been finalized by the Trial Court is completely without basis because, even going by the impugned order, it is clear that a preliminary order on the application for attachment had been issued under Order 38 Rule 5 of CPC, which was thereafter confirmed with the endorsement "Keeping the interim attachment above the I.A, I.A. closed" (sic). He says, therefore, that the reasons stated in the impugned order are wholly without basis, adding that the further reason which appears to have impelled the Court below to find against his client is that the 1st respondent-claim petitioner had taken a loan on the said EFA.No.48 OF 2001 7 property from a Nationalized Bank which, in any event, could not have been used against his client, because the said loan was taken much after the attachment order had been issued by the Court below.
10. I have considered the afore submissions of Shri.M.A.Abdul Hakhim and have also examined the order which is impugned in this appeal quite closely.
11. As has been seen above, the court below has given great amount of importance to Ext.A3 Encumbrance Certificate to conclude that the order of attachment had not been served on the Sub Registrar's Office, as required under Section 89 (5) of the Registration Act. However, it is also on record that the said Encumbrance Certificate does not mention Ext.B1, which is a subsequent registered sale agreement executed by the 2nd respondent in favour of a person by name Pookoya Thangal and therefore, the overwhelming importance attached to Ext.A3 certainly appears to be untenable. EFA.No.48 OF 2001 8
12. That apart, the fact that Ext.B1 document had been produced and marked in evidence would clearly show that even though the respondents contend that there was an agreement between them with respect to the property in question prior to the order of attachment, the 2nd respondent appears to have entered into a registered agreement with the afore mentioned Shri.Pookoya Thangal much later, certainly creating a cloud of suspicion over execution of the alleged agreement between them in the year 1991. These aspects have, however, not been considered by the court below in its proper perspective, but has nevertheless concluded that, since the sale deed has been executed by the 1st respondent in favour of the 2nd respondent in the year 1994, relevance of Ext.B1 is lost and consequently that their original agreement in the year 1991 must obtain primacy.
13. I am afraid that this line of reasoning of the court below cannot find my favour and that this is a matter that the said EFA.No.48 OF 2001 9 Court will have to consider afresh, after affording necessary opportunity to the parties.
14. That being so, further question is whether the order of attachment had been properly communicated as per law. As rightly pointed out by Shri.M.A.Abdul Hakhim, the provisions of the CPC, namely Order 21 Rule 54 thereof, does not postulate the communication of attachment to the Sub Registrar's Office and the record produced by the Amin shows that he had effected the attachment by communicating it to all Authorities, as are required under the said provision. Therefore, the axiomatic question is whether, even if it is assumed that there was no communication to the Sub Registrar's Office as is required under Section 89 (5) of the Registration Act, will the order of attachment loose its validity and whether the rigour of the same would be lost to the appellant for ever.
15. That apart even if Ext.A2 agreement, stated to have been executed on 27/06/2019, can be relied upon, the fact remains that a certain EFA.No.48 OF 2001 10 Smt.Vasumathi Amma is also shown to be a beneficiary under it and in the absence of her making any claim over the property in question, the court below ought to have assessed the said document with greater circumspection and ought not to have accepted it as if it offers full rights or claims over it to the 1strespondent- Shri.S.Sasidharan Pillai.
16. The afore aspects do not appear to have been considered by the Court below and it has proceeded on the assumption that merely because the provisions of Section 89(5) of the Registration Act had allegedly not been complied with, the order of attachment would not bind the 1st respondent and therefore, that his claim petition deserves to be allowed.
17. In the afore circumstances, I am certainly of the view that the order impugned in this appeal cannot find this Court's imprimatur and that the execution applications in question will have to be reconsidered by the court below in its proper perspective, taking note of all the relevant and germane aspects, EFA.No.48 OF 2001 11 including the applicable provisions of law as discussed above.
Resultantly, this appeal will stand allowed; with the impugned order being set aside; with a consequential direction to the Court below to reconsider E.A.No.32 of 1995 and E.A.No.33 of 1995 in E.P No.138 of 1993 in O.S.No.1531 of 1991 and issue appropriate orders thereon, after affording necessary opportunity of being heard to both sides, as expeditiously as is possible, but not later than six months from the date of receipt/ production of a copy of this judgment.
Sd/-
DEVAN RAMACHANDRAN JUDGE MC/16.1.2020