Kerala High Court
K.S.Ajith Kumar vs K.S.Ajith Kumar on 29 August, 2019
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 29TH DAY OF AUGUST 2019 / 7TH BHADRA, 1941
Ex.FA.No.1 OF 2015
AGAINST THE ORDER IN E.A No.14/2011 IN E.P No.39/2009 IN OS
No.82/2008 OF SUB COURT, NEDUMANGAD DATED 18.12.2014.
APPELLANT/5TH RESPONDENTS:
K.S.AJITH KUMAR,
AGED 43 YEARS,
S/O.KRISHNA PILLAI, CMRA 100,KUTHATTUVILA,
NALANCHIRA, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM.
BY ADV. SRI.M.R.SARIN
RESPONDENTS/CLAIM PETITIONER/DECREE HOLDERS AND JUDGMENT
DEBTORS:
1 MURALEEDHARAN NAIR,
S/O.GANGADHARAN PILLAI, JAYA BHAVAN, NEDUMKARTHA,
MANIKKAL, PULLAMPARA, NADUMANGAD, PIN - 695 541.
2 SREEKANTH
S/O.SREEKANTAN NAIR, ASWATHY BHAVAN, CHENTHIPPORU,
VENCODE P.O., VATTAPPARA, PIN - 695 028.
3 DR.AMBEDKAR SMARAKA SOCIETY
KACHANI, KARAKULAM, REPRESENTED BY SECRETARY,
PIN - 695 564.
4 DR.AMBEDKAR MEMORIAL COLLEGE OF PHARMACEUTICAL
SCIENCE (AMCOPS)REPRESENTED BY CHAIRMAN, KACHANI,
KARAKULAM, PIN - 695 564.
5 AJITHKUMAR @ KACHANI AJITH
KOCHUKARIKKAKA VEEDU, KACHANI, ARUVIKARA VILLAGE,
PIN - 695 564.
R1 BY ADV. SRI.K.JAYAKUMAR (SR.)
ADV. SRI.D.KISHORE
R2 BY ADV. SRI.HARISH R. MENON
ADV. SRI.K.T.SHYAMKUMAR
R3-R5 BY ADV. SRI.LIJI.J.VADAKEDOM
THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON
29.08.2019, ALONG WITH Ex.FA.2/2015, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 29TH DAY OF AUGUST 2019 / 7TH BHADRA, 1941
Ex.FA.No.2 OF 2015
AGAINST THE ORDER IN E.A No.15/2011 IN E.P No.35/2009 IN OS
No.84/2008 OF SUB COURT, NEDUMANGAD DATED 18.12.2014.
APPELLANT/5TH RESPONDENT:
K.S.AJITH KUMAR
AGED 47 YEARS
S/O.KRISHNA PILLAI, CMRA 100, KUTHATTUVILA,
NALANCHIRA, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM.
BY ADV. SRI.M.R.SARIN
RESPONDENTS/CLAIM PETITIONERS/DECREE HOLDERS AND JUDGMENT
DEBTORS:
1 MURALEEDHARAN NAIR
S/O.GAGADHARAN PILLAI, JAYA BHAVAN, NEDUMKARTHA,
MANIKKAL, PULLAMPARA, NADUMANGAD, PIN - 695 541.
2 VIJAYAKUMAR
S/O.DAMODARAN NAIR, MANOJ BHAVAN, ERUKUNNAM,
MANIKANTESWARAM P.O., PEROORKADA,
THIRUVANANTHAPURAM, PIN - 695 013.
3 DR.AMBEDKAR SMARAKA SOCIETYKACHANI, KARAKULAM,
REPRESENTED BY SECRETARY,PIN - 695 564.
4 DR.AMBEDKAR MEMORIAL COLLEGE OF PHARMACEUTICAL
SCIENCE (AMCOPS), REPRESENTED BY CHAIRMAN, KACHANI,
KARAKULAM, PIN - 695 564.
5 AJITH KUMAR @ KACHANI AJITH
KOCHUKARIKKAKA VEEDU, KACHANI, ARUVIKARA VILLAGE,
PIN - 695 564.
R1 BY ADV. SRI.K.JAYAKUMAR (SR.)
ADV. SRI.D.KISHORE
R2 BY ADV. SRI.HARISH R. MENON
ADV. SRI.K.T.SHYAMKUMAR
R3-R5 BY ADV. SRI.LIJI.J.VADAKEDOM
THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON
29.08.2019, ALONG WITH Ex.FA.1/2015, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
JUDGMENT
[ Ex.FA.1/2015, Ex.FA.2/2015 ] Dated this the 29th day of August 2019 Orders allowing claim petitions filed under Order 21 Rule 58 of the Code of Civil Procedure are assailed in these appeals by the common auction purchaser.
2. The first respondent in these appeals are the common claim petitioner. The second respondent in the appeals are the respective decree holders. Respondents 3 onwards are the common judgment debtors.
3. The second respondent - decree holder filed suits for money. The suits were decreed. Property having an extent of 28.33 Ares situated in Re-Survey No.60/30 of Aruvikara village was proceeded against in execution of the decrees. The property was sold in both the execution proceedings on 03.12.2010 and were purchased by the appellant - auction purchaser. [ Ex.FA.1/2015, Ex.FA.2/2015 ] -2-
4. The first respondent raised a claim in terms of Order 21 Rule 58 of the Code of Civil Procedure contending that he had purchased the property from the judgment debtors as per Ext A1 sale deed as early as on 29.08.2006. It was contended that as on the date of sale in execution, the judgment debtors did not have title over the property.
5. The execution court inquired into the claim petition and upheld the title of the claimant. It is aggrieved by the said order that the auction purchaser is before this court.
6. Heard learned counsel Sri.M.R.Sarin on behalf of the appellant - auction purchaser and Sri.D.Kishore, learned counsel for the first respondent - claim petitioner.
7. Mainly two contentions are urged; firstly, that the sale in favour of the first respondent - claim petitioner under Ext A1 was not under due authority from the society and secondly, Ext A1 sale [ Ex.FA.1/2015, Ex.FA.2/2015 ] -3- in favour of the first respondent - claim petitioner is only a sham document.
8. The contention of the appellant as against the validity of Ext A1 sale deed is on the allegation that as per the bye laws of the judgment debtor society, the quorum of the governing body is "7" whereas the decision to sell the property in question under Ext A1 was taken by the Governing Body which had a quorum of only "5". Therefore, Ext A1 sale deed is against the provisions of the bye laws and hence not valid, submits the learned counsel. It is noticed that Ext A1 sale was pursuant to Ext X1 decision of the general body of the society, dated 25.06.2006. As is evident from Ext X1, the decision to sell was taken in view of the debts owed by the society and to wipe off the same. The governing body of the society as per its decision dated 28.08.2006 marked as Ext A2 only acted in terms of the decision of the general body. Therefore, the decision to sell is in fact not one taken by the governing body but by [ Ex.FA.1/2015, Ex.FA.2/2015 ] -4- the very general body of the society. That apart, as is evident from Ext X2 decision of the general body, the bye laws were amended and the quorum of the governing body was brought down from "7" to "5". Though the appellant raises some objection to the validity of the amendment, none of the members of the society have challenged the same. Therefore, in any view of the matter, Ext A1 sale cannot be attacked on the ground of authority.
9. Coming to the contention as to whether Ext A1 sale has taken effect or was it only a sham document, Ext A4 is a proceeding in relation to Ext A1 sale, under the Stamp Act. It is evident therefrom that, proceedings were initiated alleging undervaluation of the property. That is a sufficient indication regarding the genuineness of the transaction. That apart it is to be noticed that the sale deed is of the year 2006 whereas the present suits are only in the year 2008. There is no reason [ Ex.FA.1/2015, Ex.FA.2/2015 ] -5- to assume that in the year 2006 the judgment debtors executed Ext A1 sale to ward off the property from the plaintiff in the suit. The court below on appreciating the evidence has found Ext A1 sale deed valid. No materials are placed before me to arrive at a different conclusion.
In the result, these appeals fail and are dismissed.
SATHISH NINAN JUDGE vdv