Kerala High Court
Sureshkumar vs Sudharsan
Author: A.V.Ramakrishna Pillai
Bench: Thottathil B.Radhakrishnan, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
MONDAY, THE 1ST DAY OF OCTOBER 2012/9TH ASWINA 1934
Ex.FA.No. 33 of 2011 ( )
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OS.66/2001 of PRINCIPAL SUB COURT, ATTINGAL
APPELLANT(S)/PETITIONER:
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SURESHKUMAR, S/O. DHARMARAJAN,
AGED 46 YERS, SHIBIN NIVAS, KEEZHATTINGAL VILLAGE
CHIRAYINKIL TALUK, PIN - 695 101.
BY ADV. SRI.G.BHAGAVAT SINGH
RESPONDENT(S)/COUNTER PETITIONERS:
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1. SUDHARSAN, S/O. KESAVAN,
THIRUVATHIRA, MANAMPOOR VILLAGE, MANAMPOOR VILLAGE
CHIRAYINKIL TALUK, PIN - 695 611.
2. SAHADEVABN, S/O. KESAVAN,
M.S. BHAVAN, KEEZHATTINGAL, CHIRAYINIKIL TALUK
PIN - 695 101.
* 2. SAHADEVABN, S/O. NEELAKANTAN,
"USHUS", KARAKKONAM, KEEZHATTINGAL, CHIRAYINIKIL TALUK
PIN - 695 101.
* NAME OF FATHER OF R2 AND THE ADDRESS CORRECTED AS PER ORDER
DATED 29.6.2012 IN I.A.NO.1482/12.
3. AJITHKUMAR, S/O.MANOHARAN,
KUNNUVILA VEEDU, KEEZHATTINGAL, CHIRAYINKIL TALUK
PIN - 695 101.
R1 BY ADV. SRI.P.K.MUHAMMED
R3 BY ADVS. SRI.P.HARIDAS
SMT.S.SIKKY
THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON
01-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VPV
THOTTATHIL B.RADHAKRISHNAN
&
A.V.RAMAKRISHNA PILLAI, JJ.
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Ex.F.A.No.33 of 2011
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Dated this the 1st day of October, 2012
JUDGMENT
Thottathil B.Radhakrishnan,J.
1.This appellant filed an application under Order XXI Rule 58 of CPC. The claim is as regards a property attached and brought to sale. The application raising the claim was filed in 2011. The defendants had produced documentary evidence. The impugned order is issued on 18.10.2011.
2.The law is that an application under Order XXI Rule 58 should be tried as if it is a suit.
3.The finding in the impugned order is that the property claimed by the claim petitioner, on the basis of the documents produced, including revenue records, is not shown to be the same as the property covered by the order of attachment and sale.
EXFA.33/11 2
4.The appellant/claim petitioner relied on revenue documents, including tax receipts. The tax receipts show Sy.No.1352/7 and the schedule of the property under attachment and sale shows the Survey Number as 1352/7/1. The court below ought not to have decided the matter solely relying on such evidence. The entire evidence that may be required to answer such an issue is not on record. It could be a case where the appellant would also have been at fault. At the same time, the adjudication of such a nature has far reaching consequences, having regard to the effect of an order that would be passed following such adjudication as that order is deemed to be a decree. We also do not rule out the requirement to have the property identified, if the claim petitioner were to request the court below for that. The court below could have and in our view, it ought to have, granted further opportunity to the appellant to place further evidence, including oral, if necessary. EXFA.33/11 3 With the aforesaid, we set aside the impugned order and remit the case for reconsideration, directing the parties to mark appearance before the court below on 30.10.2012. We record the submission on behalf of the auction purchaser that he having deposited the amounts, further proceedings before the court below be expedited. He may request the court below for expeditious disposal of the matter. The appeal allowed accordingly, without expressing anything on merits. No costs.
Sd/-
THOTTATHIL B.RADHAKRISHNAN Judge Sd/-
A.V.RAMAKRISHNA PILLAI Judge kkb.1/10.