Kerala High Court
Safia vs Shrinivasa B.Salian on 26 March, 2019
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY ,THE 26TH DAY OF MARCH 2019 / 5TH CHAITHRA, 1941
Ex.FA.No. 39 of 2004
AGAINST THE ORDER DATED 17-08-2004 IN E.A.NO.167/2001 IN
E.P.NO.65/1999 IN O.S.NO.63/1994 ON THE FILE OF THE SUB COURT,
KASARAGOD
APPELLANT(PETITIONER/CLAIMANT):
SAFIA
D/O. MARTHYA ALIKUNHI AND W/O.M.P.MOHAMMED,
RESIDING AT MANNAMKUZHI KODI BAIL VILLAGE, POST
UPPALA, KASARAGOD TALUK.
BY ADVS.
SRI.D.KRISHNA PRASAD
SRI.D.NARENDRANATH
SRI.M.HARISHARMA
SRI.T.P.ELDHOSE
RESPONDENTS(RESPONDENTS/PETITIONER & RESPONDENT):
1 SHRINIVASA B.SALIAN, S/O BHANU MOOLYA
RESIDING AT ARUN CHAMBERS, TRADER, BOMBAY 400034.
(DIED)
THE DEATH OF THE RESPONDENT NO. 1 IS RECORDED AS PER
ORDER DATED 26.09.2007 VIDE MEMO (CF 9192/07) DATED
17/09/2007.
2 M.P.MOHAMMED SO.PALLIKUNHI HAJI
RESIDING AT MANAMKUZHI, KODI BAIL VILLAGE,, POST
UPPALA, KASARAGOD TALUK.
3 CHANDRAVATHI
W/O SHRINIVASA B.SALIAN, RESIDING AT 101, MAHAVIR
APARTMENT, TARDEO ROAD, OPP.SWATHI SNACKS, MUMBAI-
400 007
4 PADMANABHA SALIAN
S/O.SHRINIVASA B.CHALIAN, RESIDING AT 101, MAHAVIR
2
Ex.FA.No. 39 of 2004
APARTMENT, TARDEO ROAD, OPP.SWATHI SNACKS,
MUMBAI-400 007
5 NARENDRA
S/O.SHRINIVASA B.SALIAN, RESIDING AT 101, MAHAVIR
APARTMENT, TARDEO ROAD, OPP.SWATHI SNACKS,
MUMBAI-400007
6 ARATHI GODE
D/O.SHRINIVASA B.SALIAN, RESIDING AT 101, MAHAVIR
APARTMENT, TARDEO ROAD, OPP.SWATHI SNACKS,
MUMBAI-400007
BY ADVS.
SRI.K.G.GOURI SANKAR RAI FOR RESPONDENT No.1
SRI.R.PARTHASARATHY FOR RESPONDENT No.2
SRI.SURESH KUMAR KODOTH
OTHER PRESENT:
SRI.R.PARTHASARATHY
THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON
26.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3
Ex.FA.No. 39 of 2004
JUDGMENT
The dismissal of a claim petition filed under Order 21 Rule 58 of the Code of Civil Procedure, is under challenge by the claimant.
2. The 1st respondent obtained a decree for money against the 2nd respondent. The decree was a compromise decree, entitling the 1st respondent to recover an amount of Rs.1,50,000/- with interest.
3. An extent of 20 cents of property, with a building thereon, was attached before judgment on 11/03/1994. On non-compliance of the terms of the decree, the 1st respondent filed E.P.No.65/1999 for realization of the decree debt by sale of the attached property. At that point of time, the claimant, who is none other than the wife of the judgment debtor, filed E.A.No.167/2001 under Order 21 Rule 58 of the Code of Civil Procedure, claiming title over the property under attachment. As per the impugned order, the court below 4 Ex.FA.No. 39 of 2004 negatived the claim.
4. Heard the learned counsel on either sides.
5. A larger extent of property (31 cents) including the 20 cents covered under the claim petition belonged to one Pallikunhi Haji as per Ext.A3 sale deed dated 06/05/1975. From out of the 31 cents covered under Ext.A3, he conveyed an extent of 11 cents to one Aisamma under Ext.A2 sale deed dated 17/01/1994. The remaining extent of 20 cents was conveyed by him as per Ext.A1 sale deed, on 25/02/1997, to the claimant. The said Pallikunhi Haji is none other than the father of the judgment debtor.
6. There is no dispute that Ext.A1 sale deed relates to the property in question. Evidently, even as on the date of attachment, the judgment debtor did not have any right over the property. The title over the property, at the said point of time, vested with Sri.Pallikunhi Haji, the father of the judgment debtor. Though Ext.A1 sale deed is after the attachment, since the judgment debtor did not have any right over the property even as on the date of attachment, the said 5 Ex.FA.No. 39 of 2004 transfer cannot be held to be vitiated in any manner. Title over the property vested with the claimant under Ext.A1 sale. The finding of the court below that the claimant does not have title over the property in question cannot be sustained.
7. There is a building situated in the property. Exts.B1 and B2 are the building tax assessment registers. It shows that the judgment debtor is the owner of the building. Though the claimant would rely on Ext.A4 building tax extract, as noticed by the court below, that is subsequent to the attachment, the records prior to that shows that the judgment debtor is the owner of the building. Obviously, the name was changed to that of the claimant, to defeat any proceedings for recovery. Going by the materials on record, it is evident that the judgment debtor is the owner of the building situated in the property in question. No contra evidence is available to hold otherwise. The only conclusion possible is that, the judgment debtor is the owner of the building situated in the property in question and the title over the land vests with his wife- the claimant. 6 Ex.FA.No. 39 of 2004
8. In the above view of the matter, the claim is liable to be allowed in respect of the land excluding the building situated thereon. The decree holder is entitled to proceed against the building, in execution of the decree.
In the result, the appeal is allowed. The claim petition is allowed in part. The title of the claimant over the property in question, excluding the building situated thereon is declared. The 1st respondent decree holder shall be entitled to continue the execution proceedings as against the building situated in the property.
Sd/-
SATHISH NINAN JUDGE rsr