Kerala High Court
Rosy vs *1. Rappai on 20 November, 2012
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 20TH DAY OF NOVEMBER 2012/29TH KARTHIKA 1934
CRP.No. 911 of 2006 (G/D)
-----------------------
AGAINST THE ORDER IN I.A. NO. 5039/01 IN OS.12/1999 of I ADDL.SUB
COURT, THRISSUR
REVISION PETITIONERS/ADDITIONAL PETITIONERS/LEGAL HEIRS OF OR:
---------------------------------------------------------------
1. ROSY, AGED 64,
W/O.LATE CHEMMANNUR ANTONY, KORAPATH LANE
THRISSUR VILLAGE, THRISSUR TALUK.(DELEATED)
2. JANCY DAVIS, W/O.PUDUKADAN DAVIS AND
D/O.LATE CHEMMANNUR ANTONY, KORPATH LANE
THRISSUR VILLAGE, THRISSUR TALUK.
3. JASEENTHA JOHNY, W/O.OLLUKARAN JOHN,
D/O.LATE CHEMMANNUR ANTONY, KORPATH LANE
THRISSUR VILLAGE, THRISSUR TALUK.
4. JIJY EDWIN, W/O.EDWIN,
D/O.LATE CHEMMANNUR ANTONY, KORPATH LANE
THRISSUR VILLAGE, THRISSUR TALUK.
5. JAMUNA VINCENT, W/O.VINCENT,
D/O.LATE CHEMMANNUR ANTONY, KORPATH LANE
THRISSUR VILLAGE, THRISSUR TALUK.
6. JASMIN,
D/O.LATE CHEMMANNUR ANTONY, KORPATH LANE
THRISSUR VILLAGE, THRISSUR TALUK.
7. JELLY,
D/O.LATE CHEMMANNUR ANTONY, KORPATH LANE
THRISSUR VILLAGE, THRISSUR TALUK.
8. JAILAJA,
D/O.LATE CHEMMANNUR ANTONY, KORPATH LANE
THRISSUR VILLAGE, THRISSUR TALUK.
BY ADV. SRI.G.SREEKUMAR (CHELUR)
RESPONDENT(S)/DEFENDANTS AND THIRD PERSONS:
-------------------------------------------
*1. RAPPAI, S/O.PALISSERY LONAPPAN,
PERINGAVU VILLAGE, DESOM, THRISSUR TALUK.(DELETED)
CRP.No. 911 of 2006 (G/D) :2:
2. MAR APREM KURI LIMITED,
M.O.ROAD, THRISSUR, REP. BY ITS CHIARMAN
C.F.THIMOTHI, S/O.CHANDY FRANCIS, MISSION QUARTERS
CHEMBUKAVU VILLAGE, THRISSUR TALUK.
3. OFFICIAL RECIEVER,
I.P.43/98, DISTRICT COURT, THRISSUR.
4. BAHULEYAN, S/O.KARAYIL KRISHNAN,
MANALUR DESOM, MANALUR VILLAGE, THRISSUR TALUK
(*THE FIRST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF
THE PETITIONERS VIDE ORDER DT. 9.8.2012 IN I.A. 1879/2012.)
R2 BY ADV. SRI.K.JAYAKUMAR
R2 BY ADV. SRI.P.B.KRISHNAN
R4 BY ADV. SRI.DILIP J. AKKARA
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
06-11-2012, THE COURT ON 20.11.2012 PASSED THE FOLLOWING:
K. VINOD CHANDRAN, J
- - - - - - - - - - - - -- - - - - - - - - - - - - - - -
C.R.P No. 911 of 2006
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 20th day of November, 2012
O R D E R
The legal heirs of the plaintiff in a suit for specific performance, challenges the order passed in an application filed before the court below, to get registration of the sale deed, through court, in pursuance to the decree passed. The brief facts which led to the suit is that the plaintiff and the defendant entered into an agreement dated 22.12.1997 for sale of 10 cents of property standing in the name of the defendant. The defendant having failed to execute conveyance as per the agreement, the plaintiff filed the suit which was decreed on 26.6.2001. The balance sale consideration of Rs.1.25 lakhs was also deposited before court. The plaintiff, then, filed a petition numbered as I.A NO.5039 of 2001 for getting registration of the sale deed through Court.
2. In the Interlocutory Application, the defendant, who was the respondent, was set ex-parte. The plaintiff having expired, his legal representatives were impleaded as CRP 911 / 2006 : 2 : additional petitioners 2 to 9. Respondents 2 to 4 also were impleaded in the petition. The second respondent, a company engaged in "kuri" business; claimed a mortgage of the property in the year 1990, by deposit of title deeds, by the first respondent/defendant. This was in lieu of the 'kuri' transactions entered into by the first respondent with the second respondent. Altogether 17 suits with respect to various transactions were filed by the second respondent against the 1st respondent, and the decrees therein were executed. In the execution proceedings, the property was purchased by the second respondent in Court auction for a sum of Rs.7,50,000/-. The sale was confirmed on 19.7.2004.
3. The 4th respondent was another individual who raised the claim over the property and approached the competent court under the Insolvency Act, 1955 for declaring the first respondent as an insolvent and the cause of action was projected as the sale of the very same property by the first respondent to one Mercy Vincent. The 4th respondent claimed to be a creditor of the 1st respondent. The Insolvency Petition was allowed adjudging the first respondent as insolvent as per CRP 911 / 2006 : 3 : Order dated 8.9.2004.
4. I have heard learned counsel Sri.G. Sreekumar for the revision petitioner and Sri.P.B.Krishnan for the second respondent. The learned counsel for the revision petitioner would contend that the suit filed was only for the specific performance of an agreement and it cannot at all be termed to be a "suit for land". The lower court had proceeded on totally irrelevant consideration and embarked upon an enquiry into whether the property was available, free of encumbrance for conveyance as sought for in the I.A. The decree having been passed, the lower court on the application filed by the legal representatives of the plaintiff is only enjoined upon to execute the conveyance deed. Whatever rights available to the beneficiary or decree holder is, for him, to assert and claim in appropriate proceedings. To advance his contentions, the learned counsel would place reliance on ADCON electronics Pvt. Ltd., v. Daulat and another (2001(7)SCC
698) and Nilgiri Estates P. Ltd. v Khaniva Housing (India)Pvt. Ltd.(2012 KHC 2250). Learned counsel would also point out that the sale relied upon by the second CRP 911 / 2006 : 4 : respondent was on 19.7.2004; when the IP was pending before the competent court. The Insolvency Petition having been allowed adjudging the first respondent as insolvent, the same would relate back to the date of filing; that is the year 1998. The exact date, though not available, what prompted the said Insolvency petition was assignment of 10 cents of land, on 25.9.1998, and the petition is numbered in the year 1998.
5. The learned counsel for the second respondent, however, would take me to Section 28 more specifically sub- section (6) of the Insolvency Act, 1955, wherein the right of a secured creditor is said to be unaffected by any order of adjudication passed under Section 28. Ext.B33, evidences the mortgage of 1.8.1990 and Ext.B32 is the decree dated 29.1.2002 in O.S No.496/2000 filed by the second respondent. The property was sold in court auction and purchased by the second respondent for Rs.7,50,000/- and the sale was confirmed on 19.7.2002. The application under Section 28 of the Specific Relief Act, it is contended, is succinctly declared in Ramankutty Guptan v. Avara(1994(1)KLT 453), to be not an execution proceedings. The learned counsel would CRP 911 / 2006 : 5 : invite my attention on Hungerford Investment Trust v. Haridas Mundhra(1972 SC 1826) to urge that a decree for specific performance is specifically provided under Order 21 Rule 32 and the same cannot be equated to the usual execution proceedings. The principle that the execution court cannot go behind the decree may not squarely apply here, in so far as by virtue of the decree; under Order 21 Rule 32 the Court is called upon to convey the properties without encumbrance and any encumbrance created has to be examined. It is also pointed out that in a suit, enforcing mortgage, Order 32 Rule5 of the Civil Procedure Code stands amended in the State of Kerala under Section 122 of the Code providing for a composite decree. There is no distinction of a preliminary decree and a final decree and when properties have been sold, in a suit on mortgage, no right is left with the mortgagor. Learned counsel also would rely upon Rajendra Prasad v. South Indian Bank Ltd.(1997(2)KLT458) and Philomina Jose v. Federal Bank Ltd.(AIR 2006 SC 1162) to advance the said view.
6. The plaintiff, admittedly, is a person who set up his CRP 911 / 2006 : 6 : claim on the basis of an agreement executed, long after the mortgage. Any right or title if conveyed under the terms of the agreement would have conferred only the equity of redemption available with the mortgagor. The mortgage itself having been enforced by a suit filed thereon; the confirmation of sale in such suit settles the issue and no right or title remains with the mortgagor. Any deed executed by the mortgagor would not have vested any right or title on the vendee. A sale deed executed in pursuance of a decree for specific performance, by the court, cannot confer any rights beyond that available with the mortgagor.
7. The Calcutta High Court in Nilgiri Estates Pvt. Ltd. (supra) relied on the Supreme Court decision in ADCON Electronics (supra) to hold that the suit, which was the subject matter of issue, was for specific performance simplicitor and not a suit for land. Both the decisions of the Calcutta High Court and the Hon'ble Supreme Court were with respect to the territorial jurisdiction on a reference to the provisions in the Letters Patent of the Calcutta High Court and the Bombay High Court. Both the cases dealt with the suit CRP 911 / 2006 : 7 : being filed in a Court which did not have jurisdiction with respect to the immovable property dealt with. In ADCON Electronics (supra), the Supreme Court relied on M/s.Moolji Jaitha and Co. v. Khan-desh Spinning and Weaving Mills Co. Ltd., AIR 1950 FC 83. Noticing the separate observations of the learned Judges of the Federal Court, in regard to the import of the expression "suit for land", it was held that the expression "suit for land" as occurring in Clause 12, Letters Patent, of the High Court of Judicature at Bombay, means a suit which is instituted with the object of establishing claims regarding title to the property or possession of it. The observation of Justice Mahajan was quoted with approval -
"If an attempt is made to find a comprehensive definition of the phrase, it will eventually be discovered that it has created further complications. I, therefore, content myself by saying that where the nature of the suit is such that in substance it involves a controversy about land or immovable property and the Court is called upon to decide conflicting claims to such property and a decree or order is prayed for which will bring about a change in the title to it, that suit can be said to be in respect of CRP 911 / 2006 : 8 : land or immovable property; but where incidentally in a suit, the main purpose of which or the primary object of which is quite different, some relief has to be given about land, the title to it not being in dispute in the real sense of the term, then such a suit cannot fall within the four corners of this expression." (sic).
It was also held by Their Lordships of the Supreme Court:
"From the above discussion it follows that a "suit for land" is a suit in which the relief claimed relates to title to or delivery of possession of land or immovable property. Whether a suit is a "suit for land" or not has to be determined on the averments in the plaint with reference to the reliefs claimed therein; where the relief relates to adjudication of title to land or immovable property or delivery of possession of the land or immovable property, it will be a "suit for land".
The above observations would indicate that in the instance case even if the suit could be said to be not a suit on land; the instant proceedings is one which would directly affect title to the land; in the teeth of the dispute raised on the title by the 2nd respondent. It cannot be urged that there is no warrant for the Court concerned to go behind the decree and proceed CRP 911 / 2006 : 9 : on a roving enquiry into the title when all that is required is a mere conveyance being executed.
8. Looking in this perspective, the decision in Hangerford Investment Trust (supra) assumes significance. It was held that the proceedings under Order 21 Rule 32 in execution of the decree for specific performance cannot be executed as a money decree. The execution can only be in the manner prescribed by Rule 32 of Order 21 and the Court retains control, even after the decree is passed. This was followed in the decision of the Supreme Court in Ramankutty Guptan(supra). Reference was also made to Section 28 of the Specific Relief Act to hold that after passing the decree for specific performance, the Court, does not cease to have any jurisdiction. It was held that the Court retains control over the decree even after the decree has been passed. In the instant case, it is of utmost relevance that the mortgagor has enforced a mortgage and had purchased the property in court auction.
9. The view of the Division Bench of this Court in Rajendra Prasad(supra) that Order 34 of the Civil CRP 911 / 2006 : 10 : Procedure Code as amended in the year 1974, under Section 122, would survive the Amendment Act of 1976 was not approved by the Supreme Court in Philomina Jose (supra). But, it cannot be disputed that Order 34 of the Code as amended in the year 1974 in the State of Kerala was re- adopted in terms of Section 122 of the Code of Civil Procedure with effect from 20.11.1990. In Philomina Jose, since there was no order passed by the Court confirming the sale as required in Order 21 Rule 32, the right of the mortgagor to redeem the property was held to be still available to him. It was held in para 14:
"The effect of Section 97(1) of the Amendment Act is that all the local amendments made to any of the provisions of the Code either by a State Legislature or by a High Court which were inconsistent with the Code as amended by the Amendment Act stood repealed irrespective of the fact whether the corresponding provision of the Code had been amended or modified by the Amendment Act and that was subject only to what was found in sub-section (2) of Section 97. (See Ganpat Giri v. IInd Additional District Judge, Balia and Ors. (AIR 1986 SC 589). That being so, till 20.11.1990, the Kerala amendment was not effective from 1.2.1977". CRP 911 / 2006 : 11 :
10. That position was one available before the amendment of 20.11.1990 and after amendment there is substantial difference between the procedure in Order 34 as adopted by the State of Kerala, in so far as there are no two stages as has been noticed by the Division Bench in Rajendra Prasad(supra), is the contention of the respondent. However, it is to be noticed that by CPC(Amendment) Act, 2002, more specifically by Section 16; any amendment, not consistent with the principal act as amended in 2002, made by a State Legislature or a High Court would stand repealed. Hence the position after the Amendment Act, 2002 is similar to that declared in Philomina Jose(supra). The Amendment Act, 2002 came into force on 23.5.2002. The decree in the mortgage suit, Ext.B2, filed by the2nd respondents is on 29.1.2002, before the amendment. In any event here is a case where the sale in the mortgage suit has been confirmed.
10. The mortgage was of the year 1990 and the suit filed by the mortgagor of the year 2000. Decree was passed in 29.1.2002 and sale was confirmed on 19.7.2004. In any event it cannot be said that the right of redemption of the mortgagor CRP 911 / 2006 : 12 : survives, in so far as the sale to the mortgagee, in pursuance to a decree; was confirmed. The revision petitioner's prayer that the Court concerned with an application under Section 28 of the Specific Relief Act need only receive deposit of balance sale consideration and execute a deed cannot stand to reason. The same would lead to absurd results since a deed would be executed, where there is absolutely no title or even equity of redemption available with the mortgagor; who was the defendant against whom specific relief was sought for. The mortgagors right to redeem survives till the confirmation of sale. Title pases on confirmation of sale in a suit on mortgage. The right of mortgagor to redeem is dependent on the proviso to Section 60 of the Transfer of Property Act and it stands extinguished by act of parties or by decree of a Court.
The Civil Revision Petition hence is found to be without any merit and hence, is rejected. No order as to costs.
Sd/-
K. VINOD CHANDRAN,
JUDGE
jma //true copy//
P.A to Judge