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2010 DIGILAW 741 (KER)

C. C. THOMAS v. STATE OF KERALA

2010-09-28

P.R.RAMACHANDRA MENON

body2010
JUDGMENT : P.R. Ramachandra Menon, J. 1. Whether the correctness and sustainability of the 'Sale Certificate' issued pursuant to the sale conducted in execution of the ARC Award can be examined by the 'Court', while considering the matter under Rule 84 of the Kerala Co - operative Societies Rules, is the point involved in this writ petition. 2. The case has got a long history. The basic dispute is between the ownership rights of the Petitioner and the possessory rights of the 3rd Respondent, who was the owner of the property once upon a time, who sold the same in favour of one Mr. Jose, who in turn executed sale deed in favour of the 6th Respondent. The sequence of events as described in the writ petition shows that the 5th Respondent availed a loan from the 4th Respondent Society, on the strength of the above collateral security offered by the 6th Respondent. Since the due amount was not cleared as specified, the matter led to ARC, wherein an Award was passed in favour of the Society. Pursuant to the execution proceedings, the property was caused to be sold in a public auction and the Petitioner turned to be the successful bidder, who satisfied the bid amount and got Ext. P8 Sale Certificate. 3. In the course of the above proceedings, the 3rd Respondent had turned up with a claim petition, contending that the property actually belonged to the said Respondent and not liable to be auctioned, in respect of dues from the 5th and 6th Respondents. The said claim petition was rejected by the 2nd Respondent as per Ext. P2, which was subjected to challenge in WP (C) No. 24710/2003 leading to Ext. P3 judgment. As borne by Ext. P3, this Court observed that the Petitioner therein (3rd Respondent herein) was having alternate remedy as provided under the Statute and he was relegated to approach the Civil Court, intercepting the coercive proceedings for a period of 6 months, making if clear that it will not stand in the way of settling the liability under the One Time Settlement Scheme. 4. While so, Ext. P4 sale notice was issued and the sale was conducted on 20/02/2006 wherein the Petitioner offered the highest sale consideration of Rs. 6,05,500/- and bid the property in his name. The 3rd Respondent filed Ext. 4. While so, Ext. P4 sale notice was issued and the sale was conducted on 20/02/2006 wherein the Petitioner offered the highest sale consideration of Rs. 6,05,500/- and bid the property in his name. The 3rd Respondent filed Ext. P6 before the 2nd Respondent to set aside the sale, which was dismissed as devoid any merit, vide Ext. P7 and the sale was confirmed on 07/07/2006, followed by issuance of Ext. P8 Sale Certificate dated 19/07/2006. After obtaining the Sale Certificate, the Petitioner filed necessary proceedings to effect transfer of registry and got the mutation effected, remitting the basic tax for the property as evident from Ext. P9 receipt from November 2007 onwards. 5. In furtherance to the above proceedings, the 2nd Respondent issued Ext. P10 notice to the 6th Respondent to quit the premises, so as to deliver the property to the Petitioner. But immediately thereafter the 2nd Respondent issued Ext. P11 on 27/09/2006 expressing 'helplessness' in this regard by virtue of the hurdle placed by 'R.84' of the Kerala Co -operative Societies Rules. Being aggrieved of Ext. P11, the Petitioner challenged the same by filing WP (C) No. 25917/2006, wherein Ext. P12 judgment was passed directing the 2nd Respondent to effect 'delivery' of the property, observing that the obstruction caused was by the 'defaulter himself and hence Rule 84 was not applicable. Pursuant to this Ext. P13 request was made by the 2nd Respondent to the concerned Sub Inspector of Police for giving necessary police assistance to effect delivery. 6. In the mean while, Ext. P7 order passed by the 2nd Respondent refusing to set aside the sale was sought to be challenged by the 3rd Respondent by approaching the Government, wherein Ext. P14 interim stay was granted, which was subsequently vacated as per Ext. P15-dated 26/12/2006, accepting the version put forth by the Petitioner. It is stated by the learned Counsel for the Petitioner that the appeal was subsequently dismissed by the Government. 7. Being aggrieved of the situation, the 3rd Respondent preferred RP No. 75/2007 seeking to review Ext. P12 judgment, pointing out that the 3rd Respondent / review Petitioner was actually a party in possession of the property concerned; that he was never a defaulter before the 4th Respondent; that the obstruction by the said review Petitioner came within the purview of Rule 84 and hence that the matter required to be reconsidered. P12 judgment, pointing out that the 3rd Respondent / review Petitioner was actually a party in possession of the property concerned; that he was never a defaulter before the 4th Respondent; that the obstruction by the said review Petitioner came within the purview of Rule 84 and hence that the matter required to be reconsidered. Taking note of the facts and circumstances, Ext. P11 order passed by the 2nd Respondent (which was Ext. P6 in the earlier writ petition) was set aside and the 2nd Respondent was directed to reconsider the matter, giving an opportunity of hearing to the review Petitioner as well. After hearing the parties concerned, the 2nd Respondent passed Ext P18 holding that the contention raised by the 3rd Respondent herein i.e.; review Petitioner was quite sustainable by virtue of Rule 84 of the Rules and hence that the 2nd Respondent was not in a position to effect delivery of the property and hence that the Petitioner might approach the Civil Court for redressal of his grievance. The Petitioner is before this Court challenging the said order passed by the 2nd Respondent on many a ground, legal as well as factual. 8. The 2nd Respondent has filed a counter - affidavit seeking to sustain Ext. P18 and the course and events as aforesaid. The 3rd Respondent has filed a counter - affidavit stating that the writ petition is not at all maintainable and that the Petitioner, having an effective alternate remedy under the relevant rule (as mentioned in Ext. P18), no interference is called for. 9. Referring to the sequence of events as narrated in the pleadings, the learned Counsel for the Petitioner brought it to the notice of this Court that the property originally belonged to the 3rd Respondent, who conveyed the same to one Mr. Jose as per Sale Deed No. 5336/96 dated 04/10/96 of the SRO, Nellayi as conceded by the 3rd Respondent himself in paragraph 4 of his counter - affidavit. Aforesaid Jose then sold the property in favour of the 6th Respondent as per Sale Deed No. 5645/97 dated 18/11/97. It is contended by the 3rd Respondent that the deed executed by the 3rd Respondent was actually not a sale deed, but was a 'sham document' and no possession of the property was handed over. Aforesaid Jose then sold the property in favour of the 6th Respondent as per Sale Deed No. 5645/97 dated 18/11/97. It is contended by the 3rd Respondent that the deed executed by the 3rd Respondent was actually not a sale deed, but was a 'sham document' and no possession of the property was handed over. It is also contended by the 3rd Respondent that the transferee from the hands of the 3rd Respondent and the Respondents 5 and 6 were acting hand - an - glove with each other, who created some documents which in turn was being resisted by the 3rd Respondent by filing different proceedings including complaints in respect of the offences and also by filing OS No. 1573/97 before the Munsiff's Court, Irinjalakuda in respect of the 'possession'. It is stated that the issue in this regard was sought to be taken up even before the Apex Court and that the possession of the 3rd Respondent now stands settled. 10. With regard to the basic issue as to the maintainability of the writ petition, the learned Counsel for the 3rd Respondent submits that the rule position is crystal - clear and the statement of the 3rd Respondent in the counter - affidavit has not been rebutted by the Petitioner and there is no case for anybody that the 3rd Respondent was the defaulter before the 4th Respondent, to be ousted from the purview of Rule 84 of the Rules. This being the position, the 3rd Respondent is very much entitled to press the aforesaid rule into service and to contend that the remedy of the Petitioner if any, lies elsewhere. Reliance is also sought to be placed on the decision rendered by this Court in Varghese v. Muthukulam Service Co - operative Society 1980 KLT 400 (Paragraph 2) and also Selma Beevi v. Karunakaran Pillai 1999 (3) KLT 350 , passed by the Division Bench (wherein the earlier decision has been referred to). For the purpose of convenience of references, Rule 84 of the said Rules is extracted below: R.84. For the purpose of convenience of references, Rule 84 of the said Rules is extracted below: R.84. Delivery of possession.- Where any lawful purchaser of immovable property is resisted and prevented by any person other than a person, (not being the defaulter) claiming in good faith to be in possession of the property art his own account, from obtaining possession of the immovable property purchased, any Court of competent jurisdiction, on application and production of the certificate of sale referred to in Sub-rule (5) of Rule 83 above, shall cause the proper process to be issued for the purposes of putting such purchaser in possession in the same manner as if the immovable property purchased had been decreed to the purchaser by a decision of the Court. Obviously, the delivery of possession to be effected by the statutory authority is made subject to the different parameters as prescribed therein. It is clearly stipulated that the party concerned has to approach the 'Court', if the delivery is resisted / prevented by any person other than a person (not being the defaulter) and subject to the condition that he is claiming in good faith to be in possession of the property, on his own account. 11. The first question to be concerned is whether the 3rd Respondent is a 'defaulter' and if he is not claiming it in good faith, to be in possession of the said property. By virtue of the undisputed pleadings and materials on record, it is quite evident that the 3rd Respondent is not connected in any way with the loan transaction and is not a defaulter and thus satisfies the first limb. With regard to the second limb, it is also evident that the possession of the property by the 3rd Respondent stands well established by virtue of the decree stated and passed in favour of the 3rd Respondent making it clear that the 3rd Respondent can be evicted from the premises only in accordance with relevant provisions of the law and not otherwise. To put it more clear, the above stipulation under the rule is not with reference to the 'title' of the property in question, but with regard to the 'possession' alone. The resistance being made by the person who is in possession of the property, the 3rd Respondent satisfies the second limb as well. To put it more clear, the above stipulation under the rule is not with reference to the 'title' of the property in question, but with regard to the 'possession' alone. The resistance being made by the person who is in possession of the property, the 3rd Respondent satisfies the second limb as well. As such, the observation made by the 2nd Respondent in Ext. P18, that Rule 84 clearly places a hurdle on the way of the 2nd Respondent in causing the delivery to be effected, is quite correct and sustainable. The 3rd Respondent is entitled to succeed to this extent and the remedy of the Petitioner, as pointed out in Ext. P18, is only by approaching the 'Court' for appropriate relief. 12. With regard to the other incidental aspects, in view of the legal position as above, it is relevant to note that Rule 84 does not clearly specify 'which Court' is to be approached by the aggrieved party i.e.; the purchaser of the property. Going by the scheme of the statute and the discussions made by this Court in the decisions cited supra, it can only be the 'Civil Court'. Then the next question is, to what extent interference is possible before such Court? 13. The course and events to be pursued by the purchaser of the property on obtaining the sale certificate is clearly discernible from the rule itself. Rule 84 stipulates that on filing an application before the Court and on production of the certificate of sale referred in Sub-rule (5) of Rule 83, it is for the Court to issue proper process for the purpose of putting such purchaser in possession of the property, in the same manner as if the immovable property purchased had been decreed to the purchaser by a decision of the Court. This clearly shows that the 'Sale Certificate' obtained by the purchaser is to be given effect as a 'deemed decree' and to be proceeded further, so as to put the purchaser (deemed decree - holder) in possession, of course, after issuing notice to the opposite side. 14. From the above, it is clear that the Civil Court, while acting under Rule 84 of the Kerala Co - operative Societies Rules, is to act only as an 'Execution Court', to the extent as it is permitted and provided under the said rule, treating the Sale Certificate as a decree. 14. From the above, it is clear that the Civil Court, while acting under Rule 84 of the Kerala Co - operative Societies Rules, is to act only as an 'Execution Court', to the extent as it is permitted and provided under the said rule, treating the Sale Certificate as a decree. It is settled law, that the Execution Court, cannot go behind the decree, unless 'fraud' is specifically pleaded and established. Coming to the case in hand, no such factual position has been substantiated by the 3rd Respondent, but for the contention raised in paragraph 7 of the counter - affidavit. 15. Yet another aspect to be considered is that the 3rd Respondent, while conceding in paragraph 4 of the counter - affidavit, that the property was originally sold by him to one Mr. Jose vide Sale Deed No. 5336/96 dated 04/10/96 of the SRO, Nellayi, it is contended that the said sale is actually not liable to be considered as a valid sale and no possession of the property was handed over. It is stated that, it was pursuant to borrowal of a sum of Rs. 1.5 lakhs from the aforesaid Jose. The adequacy of the consideration is not a ground to be considered by this Court, to see whether the sale was proper or not. It is for the 3rd Respondent to file a suit to cancel the 'Sale Need', if the sale is vitiated due to some or other reason. Similarly, it is for the 3rd Respondent to file appropriate proceedings to set aside Ext. P8 'Sale Certificate' dated 19/07/2006 before the appropriate forum. In the said circumstances, as on date, the sale stands complete and the only aspect to be considered is with regard to the 'delivery' of the property, which is to be acted upon by the appropriate Civil Court, if at all any proceedings are filed by the Petitioner in this regard, under Rule 84 of the Kerala Co-operative Societies Rules as made clear in Ext. P18. 16. In the above circumstances, while sustaining Ext. P18 and declining interference holding that the writ petition is not maintainable, the Petitioner is set at liberty to approach the competent Civil Court for obtaining appropriate relief to have delivery of the property covered by Ext. P8 Sale Certificate as aforesaid. Writ petition is disposed of as above.