SYAM KUMAR Vs. JAYAPALAN NAIR

JUDGEMENT

(1.) Petitioner in E.A. No. 798 of 2009 in E.P. No. 84 of 2000 in O.S. No. 615 of 1994 of the court of learned II Additional Munsiff, Thiruvananthapuram is the appellant before, me. Respondents 1 to 4 obtained a decree for redemption of mortgage and on depositing the mortgage money, sought delivery of possession in E.P. No. 84 of 2000. Delivery was ordered on 27.10.2009. At that stage appellant came with E.A. No. 798 of 2009 resisting delivery under Rule 97 of Order XXI of the Code of Civil Procedure (for short, "the Code"). He claimed that he has obtained assignment of the property mentioned in E.A.No. 798 of 2009 from the Ist judgment debtor as per Ext.A1, assignment deed No. 3509 of 2007. It is his case that the said property was obtained by the 1st judgment debtor by way of kudikidappu in O.A.No. 187 of 1999. Ext.A3 is the purchase certificate. Exts.A2, A4 and A5 are receipts produced by the appellant for payment of revenue. To show that appellant is a bonafide purchaser, he produced Ext.A7, encumbrance certificate. To contend that the property covered by E.A.No. 798 of 2009 is not the decree schedule property, appellant produced Exts.A6 and A8, certificate of possession and copy of survey plan. The application (E.A.No. 798 of 2009) was resisted by respondents 1 to 4 who contended that attempt of appellant is to prolong litigation at the instance of 1st judgment debtor. Executing court dismissed E.A.No. 798 of 2009. Appellant challenged that order before learned I Additional District Judge, Thiruvananthapuram in A.S.No. 162 of 2011. That appeal was dismissed. Judgment and decree of the learned Additional District Judge are under challenge in this Second Appeal raising the following as substantial questions of law:

(2.) It is contended by learned counsel for appellant that identity of properties is not ascertained by the courts below. Further contention is that appellant is a bonafide purchaser for consideration without notice of pending suit and hence is entitled to resist delivery proceedings.

(3.) So far as dispute regarding identity is concerned, I do not find much merit In that contention, for, if delivery proceedings do not concern the property over which appellant is now laying hands, there was no necessity at all for the appellant to resist delivery proceedings. Therefore, it is certain that delivery ordered and sought to be effected is with respect to the property over which appellant is claiming right, title and possession. Learned Additional District Judge has observed that in Ext.A1, assignment deed in favour of appellant the old survey number of property is mentioned as 420/A1, re-survey as 129 and block number as 3 while the decree schedule property is comprised in survey No. 420/A1-1. Learned Additional District Judge has pointed out that the only difference is that sub division number is separately given for the decree schedule property. As regards the slight difference in the boundaries, it is pointed out that since the suit was filed in the year, 1994 and Ext.A1 is in the year, 2007 some change in the boundary of property is quite normal. In the above circumstances, contention raised as regards lack of identity of property does not merit consideration nor does involve any substantial question of law.