Kerala High Court
The Manager, Catholic Syrian Bank vs George on 16 January, 2026
2026:KER:4051
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
RSA NO. 641 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 20.01.2012 IN AS
NO.29 OF 2011 OF THE SUB COURT, NEYYATTINKARA ARISING
OUT OF THE JUDGMENT AND DECREE DATED 05.10.2010 IN E.A
No.480 OF 2010 IN E.P No.73/2009 IN OS NO.664 OF 1996 OF
II ADDITIONAL MUNSIFF COURT, NEYYATTINKARA
APPELLANT/1ST RESPONDENT/1ST COUNTER CLAIM PETITIONER:
THE MANAGER,
CATHOLIC SYRIAN BANK
NEYYATTINKARA BRANCH, NEYYATTINKARA.
BY ADVS.
SHRI.R.S.KALKURA
SRI.HARISH GOPINATH
SHRI.M.S.KALESH
SRI.V.VINAY MENON
RESPONDENTS/APPELLANTS AND RESPONDENTS 2 TO 4/CLAIM
PETITIONER & COUNTER CLAIM PETITIONER:
1 GEORGE
AGED 50 YEARS, S/O. THOMAS, RESIDING AT
KIZHAKKEKARA VEEDU, VALIYAPARAMB, MARAYAMUTTOM
DESOM, MARAYAMUTTOM VILLAGE, MARAYAMUTTOM P.O.,
THIRUVANANTHAPURAM-695 131.
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R.S.A No.641 of 2012
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2 BABY
W/O. RAJAN(LATE), SHEEJA BHAVAN, MARAYAMUTTOM
DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA
TALUK, PERUMKADAVILA P.O.,
THIRUVANANTHAPURAM-695 124.
3 SHEEJA
D/O. BABY, SHEEJA BHAVAN, MARAYAMUTTOM DESOM,
PERUMKADAVILA VILLAGE, NEYYATTINKARA TALUK,
PERUMKADAVILA P.O., THIRUVANANTHAPURAM-695 124.
4 AJITH
S/O. RAJAN(LATE), SHEEJA BHAVAN, MARAYAMUTTOM
DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA
TALUK, PERUMKADAVILA P.O.,
THIRUVANANTHAPURAM-695 124.
BY ADVS.
SRI.SREEKANTH S.NAIR, FOR R1
SRI.S.JATHIN DAS
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 16.01.2026, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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R.S.A No.641 of 2012
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EASWARAN S., J
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R.S.A No.641 of 2012
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Dated this the 16th day of January, 2026
JUDGMENT
This appeal arises out of the judgment dated 20.01.2012 in A.S No.29/2011 on the files of Sub Court, Neyyattinkara, which reversed the dismissal of the claim petition by the Additional Munsiff Court-II, Neyyattinkara, on 05.10.2010.
2. The appellant is a decree holder in a suit for recovery of money filed as O.S No.664/1996, which was decreed on 20.03.1997 and an Execution Petition lodged on 03.07.1997 as E.P No.202/1997. Since the sole judgment debtor died, the legal representatives were impleaded on 24.10.1997. Consequently, on certain technical reason, the Execution Petition was dismissed. On 12.02.2009, a fresh Execution Petition was filed as 2026:KER:4051 R.S.A No.641 of 2012 4 E.P No.73/2009 and E.A No.163/2009 was filed for attachment of the property of the judgment debtor and the attachment was ordered on 13.03.2009. On 24.07.2009, the said property was proclaimed to be sold under Order 21 Rule 66 of the Code of Civil Procedure (for short 'CPC'). It is stated that the decree holder-Bank itself purchased the property. Subsequently, the 1 st respondent herein stating that he is a subsequent assignee of the property already sold in the auction, through a sale deed dated 24.03.1999, lodged an application under Order 21 Rule 97 of CPC, contending that as on the date of attachment, the judgment debtor did not have the right title and interest over the property. The claim petition was negated on the ground that the purchase of the property was for an amount of Rs.7,500/-, whereas the property itself was having a value of an amount of Rs.1,00,000/-. The Execution Court further found that the sale of the property was to defeat 2026:KER:4051 R.S.A No.641 of 2012 5 the legitimate claim of a creditor and therefore the said sale is void. Accordingly, the claim petition was dismissed. Aggrieved, the claim petitioner filed A.S No.29/2011 and by judgment dated 20.01.2012, the First Appellate Court in an erroneous application of the law held that since the attachment over the claim petition property was after 12 years of passing of the decree, the execution is time barred and accordingly allowed the application, against which the decree holder-Bank has came up with the present appeal.
3. Heard Shri.R.S.Kalkura, the learned counsel appearing for the appellant and Shri.Sreekanth S. Nair, the learned counsel appearing for the 1 st respondent.
4. By order dated 19.06.2012, this appeal was admitted on the following substantial questions of law:-
1. When an attachment of property is sought to be effected long prior to the period of limitation 2026:KER:4051 R.S.A No.641 of 2012 6 prescribed under Article 136 of the Limitation Act and it is sought to be brought to sale by a proclamation subsequently, can the court dismiss the execution petition on the ground of bar of limitation especially when a step in progress of the execution has already been initiated against the property of the judgment debtor within the period of limitation prescribed?
2. Is not a notice under Rule 66 of Order XXI of the Code issued to the respondents be a step in progress in execution and if taken prior to the period of limitation, will not the decree holder be entitled to bring the property to sale?
5. Shri.R.S.Kalkura, the learned counsel appearing for the appellant would contend that the findings rendered by the First Appellate Court is perverse. Article 136 of the Limitation Act, 1963, provides 12 years for a execution of a decree and that within such time, any number of execution petitions can be filed. The execution petition was dismissed for a technical reason in the year 1999 and that before the expiry of the period of limitation provided under Article 136 of the Limitation Act, 1963, the present execution petition was filed. Therefore, the First Appellate Court 2026:KER:4051 R.S.A No.641 of 2012 7 could not have held that the execution is beyond the period of limitation. As regards the claim of the respondents, it is submitted that the property having a value of more the Rs.1,00,000/- is now sold for an amount of Rs.7,500/- and that to after passing of the decree. Admittedly, the sale took place on 24.03.1999, whereas the decree for recovery of money passed on 20.03.1997 and the transaction is clearly hit by Section 53 of the Transfer of Property Act, 1882.
6. Per contra, Shri.Sreekanth S. Nair, the learned counsel for the 1st respondent supported the findings of the First Appellate Court and contended that the sale having taken place prior to the order of attachment, no right title and interest vested with the judgment debtor or its legal heirs and therefore the First Appellate Court had rightly found that the claim petitioner was entitled to succeed. He would further point out that admittedly the sale of the property took 2026:KER:4051 R.S.A No.641 of 2012 8 place after the period of the limitation as provided under Article 136 of the Limitation Act, 1963.
7. I have considered the rival submissions raised across the Bar, perused the judgments rendered by the courts below and also the records of the case.
8. In order to consider the substantial questions of law framed by this Court, it is imperative for this Court to deal with the contention of the claim petitioner that the execution proceedings are lodged beyond the period of limitation. Admittedly, the decree was passed on 20.03.1997, whereas the second execution petition was filed on 12.02.2009. It is not shown before this Court as to how E.P No.73/2009 is beyond the period of limitation under Article 136 of the Limitation Act, 1963.
9. What is contended before this Court is that, by the time the application for attachment was preferred and a sale proclamation was taken out for 2026:KER:4051 R.S.A No.641 of 2012 9 proclaiming the claim schedule property for sale, the period of 12 years lapsed. What is provided under Article 136 of the Limitation Act, 1963, is the time limit for initiation of the measures for putting the decree into execution. Once, the execution petition is filed within the period of 12 years, it is immaterial as to whether, the decree stands finally executed beyond the period of 12 years. If the contention of the claim petitioner is accepted, then the provisions of Article 136 will have to be re-written by this Court and every decree that is passed will have to be executed finally within a period of 12 years from the date of passing of the decree. Such an interpretation to Article 136 of the Limitation Act, 1963, is not possible.
10. A reading of the application filed under Order 21 Rule 97 of CPC, which led to the First Appellate Court passing the impugned judgment shows, what is attacked is in fact the sale in favor of the decree 2026:KER:4051 R.S.A No.641 of 2012 10 holder. It is now trite law that the manner in which the property was put up for sale through the proceedings under Order 21 Rule 66 of CPC, cannot be a subject matter of an adjudication in an application under Order 21 Rule 97 of CPC. The infirmity or defect in any sale proceedings can only be questioned either under Section 47 or under Order 21 Rule 90 of CPC. If that be so, it is imperative for this Court to find that the challenge against the proceedings of sale in execution of the decree could not have been gone into by the First Appellate Court in an application under Order 21 Rule 97 of CPC.
11. As regards the contention of the claim petitioner that the property was assigned in his favour by the judgment debtor prior to the sale being effected on 24.07.2009, the trial court has correctly found that the said sale is hit by Section 53 of the Transfer of Property Act, 1882.
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12. In Porinchu v. John [1995 (2) KLT 339], a Single Bench of this Court has held that the Execution Court is always empowered to go into the question as to whether the sale is hit by Section 53 of the Transfer of Property Act, 1882. In the considered view of this Court, the Execution Court had correctly applied the law on the this point and had dismissed the application. The First Appellate Court had gone on a wrong tangent altogether and had construed the provisions of law on an extraneous consideration of the facts as well as the law, which was pleaded before this Court. Therefore, this Court cannot subscribe to the findings rendered by the First Appellate Court and thus it becomes imperative for this Court to answer the substantial questions of law in favour of the appellant as follows:-
(a) When an attachment of property sought to be effected long prior to the period of limitation prescribed under Article 136 of the Limitation Act, 2026:KER:4051 R.S.A No.641 of 2012 12 1963 and it is brought for sale, a plea of limitation under Article 136 of the Limitation Act cannot be raised, when the execution petition is filed within the statutory period of limitation. In other words, what is contemplated is only a filing of the execution petition within the period of limitation and it is immaterial as to whether the decree was executed beyond the period of limitation under Article 136 of the Limitation Act.
(b) When a notice under Rule 66 of Order 21 of CPC is issued to the respondent in a step in progress in the execution of a decree and the said proceedings are taken in an execution petition filed within the period of limitation, the decree holder is entitled to bring the property for sale, because, the execution petition is filed within the period of limitation of 12 years under Article 136 of the Limitation Act, 1963.
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13. Accordingly, this appeal is allowed by reversing the judgment and decree in A.S No.29/2011 on the files of Sub Court, Neyyattinkara, and restoring the order dated 05.10.2010 in E.A No.480/2010 in E.P No.73/2009 in O.S No.664/1996 on the files of Additional Munsiff Court -II, Neyyattinkara.
The judgment, however, does not preclude the respondents from approaching the appellant - Bank for an amicable settlement and also for clearing of liability due under the decree and in which case, the appellant-Bank is at liberty to consider such request.
Sd/-
EASWARAN S. JUDGE AMR