K S ISMAIL Vs. M K MAICHAEL

JUDGEMENT

(1.) THE petitioner is the judgment debtor in O.S.No.45 of 2002, on the file of the Principal Sub Court, Kottayam. THE decree was transferred to the Sub Court, Kasaragod for execution, as the judgment debtor belongs to Kasaragod and the properties sought to be sold are also situated in Kasaragod. On transfer of the decree, the respondent filed E.P.No.43 of 2009 for realization of the decree amount by sale of the item of immovable property which was attached before judgment.

(2.) THE judgment debtor contended, in the counter filed by him, as follows:

(3.) THE property in question was attached before judgment. Nobody raised any claim to the attached property. Even in execution, no claim was filed against attachment. In the counter filed by the respondent, he does not say that he is not the owner of the property. He only says that he has no saleable interest. No documents were produced by the judgment debtor to show that he transferred the property. Who created mortgage to the Kerala Financial Corporation is also not clear from the counter statement filed by the judgment debtor in the Execution Petition. Later, an application was filed to receive documents, in which, he stated that the property belongs to Sayyed Jabar Sadiq. Even in that affidavit, the judgment debtor does not say as to who transferred the property to Sayyed Jabar Sadiq. Even after the filing of the counter statement and affidavit in support of E.A.No.34 of 2011, the facts are not clear at all. If the petitioner/judgment debtor is not the owner of the property, he need not worry at all about the sale of that item. THE court will consider the encumbrance certificate and pass appropriate orders in the Execution Petition. THE petitioner cannot be stated to be an aggrieved party and he cannot challenge the order passed by the court below. If the petitioner is not the owner of the property, his rights cannot be affected by the sale of the property. If there is mortgage in favour of the Kerala Financial Corporation, it is for the decree holder to satisfy himself about the encumbrance. If the property is transferred by the judgment debtor to a third party, still the executing court has to consider whether the transfer is hit by Section 53 of the Transfer of Property Act. THE order passed by the court below does not call for interference. For the aforesaid reasons, the Original Petition is dismissed.