LAWS(KER)-2021-7-89

DEVADAS Vs. BABY REMYA

Decided On July 30, 2021
DEVADAS Appellant
V/S
Baby Remya Respondents

JUDGEMENT

(1.) Petitioner is the decree-holder in E.P.73 of 2007 in O.S.153 of 2002 of Sub Court, Attingal. This original petition has been filed against the order in E.A.229 of 2011 in the above stated E.P. dated 7.1.2016 by which petition filed under Sec.47 of the Code of Civil Procedure, 1908, to set aside the sale was allowed.

(2.) O.S.153 of 2002 is a Suit for money. As per the decree in O.S.153 of 2002 copy of which is produced as Ext.P1, the petitioner/Decree Holder/plaintiff was allowed to realise an amount of Rs.1,25,220/- with interest on the original amount of Rs.1,20,000/- at the rate of 6% per annum charging the decree schedule properties. The Suit was filed after the death of the debtor against the legal representatives who are his mother, wife and children. Against Ext.P1 decree, appeal was preferred as A.S.16 of 2011 by the respondent herein, the 3rd judgment-debtor and 5th judgment-debtor(her minor brother) in the E.P. and copy of the appeal memorandum is marked as Ext.P2. In the appeal the challenge was that item No.2 in the decree schedule property is not liable to be proceeded for the debt of the original defendant as it is not a property inherited by the legal representatives of the debtor. The specific contention in the appeal was that the property belonged to the wife of the debtor who is her mother. No stay of the execution proceedings was granted by the Appellate Court in Ext.P2 appeal since there was delay in filing the appeal. Hence the respondent here in filed O.P.(C).397 of 2011 before this Court for stay pending consideration of Ext.P2. But as per the judgment dated 3.12.2012, this Court dismissed the said O.P for default since the delay petition pending before the District Court was dismissed and accordingly Ext.P2 appeal was also dismissed , copy of which is marked as Ext.P3 . So the challenge with regard to the liability over item No.2 property was concluded by the dismissal of Ext.P2 appeal. The petitioner carried the decree in execution and the properties were brought for sale and it was purchased by the petitioner and item No.1 of the decree schedule was delivered to the petitioner/decree holder. But E.A.229 of 2011 was filed by the respondent on the very same grounds to set aside the sale of item No.2 of the decree schedule properties. The true copy of that E.A. has been produced as Ext.P4. By Ext.P5 order the Sub Court, Attingal allowed Ext.P4. Against which this Original Petition has been filed.

(3.) Notice was issued to the respondent/petitioner in E.A.229 of 2011. Adv.K.P.Sujesh Kumar appeared on behalf of the respondent and both sides were heard.