SAJITHA Vs. KARAPPARA MINI CHITTY FUND

JUDGEMENT

(1.) Ex.FA.Nos.29/2024, 30/2024 and Ex.FA No.32/2024 are filed by the claim petitioners, challenging the orders passed in EA.Nos.5/2020, 11/2020 and E.A.No.3/2020 respectively in E.P No.45/2017 in O.S.No.56/2015 by the Sub Court, Alappuzha dismissing their applications purportedly filed under Order 21 Rule 58 CPC.

(2.) It is the case of the claim petitioners that they have purchased the properties described in the schedule, in 2015 from one Sebastian Varghese, who is the first judgment debtor/first defendant. It is contended that, the said Sebastian Varghese was the absolute owner in possession of a larger extent of 40 Ares and 46 Sq. meters of property, and he assigned a portion of it to the claim petitioners. It is also contended that, while the claim petitioners were thus enjoying the properties, they came to know that the entire larger extent of 40.46 Ares of property is put in auction sale by the Sub Court, Alappuzha in E.P.No.45/2017, in O.S.56/2015. The properties purchased by the claim petitioners are also included in the auction sale and if the sale is proceeded with, it will cause irreparable loss and injury. The claim petitioners are not indebted to the decree holder and the decree holder and the judgment debtor are fraudulently attempting to snatch their properties. The proclamation schedule was also not affixed anywhere in the property. Hence, the claim petitioners prayed for excluding the petition schedule property from the auction sale.

(3.) The first respondent filed objections to the claim petitions by contending that, the petitions are not maintainable and that the property has already been sold in court auction on 1/1/2020. It is contended that, the property was under equitable mortgage in favour of the first respondent and in the suit a compromise decree was passed on 26/8/2016 allowing the decree holder to realise the decree amount charged over the property. It is also contended that, the sale deed was executed in favour of the claim petitioners with an intention to delay and defeat the claim of the first respondent and that the same is null and void. It is further contended that, the claim petitioners were aware about the execution proceedings and the mortgage, and that the petitions are filed in collusion with the judgment debtor.