BINDHU Vs. SALOMI

JUDGEMENT

(1.) In this appeal, appellants assail the order of the Family Court, Kottarakkara in E.A.No.87/2022 in E.A.No.46/2021 in E.P. No.43/2018, by which it dismissed their petition filed under Order XXI Rule 58 of the Code of Civil Procedure (for short, CPC)

(2.) The case of the appellants is that by virtue of Ext.A1 sale deed dtd. 20/4/2007 of SRO Kottarakkara, Sri.Mohanan and late Lillykutty jointly purchased the petition schedule property having an extent of 23.47 Ares comprised in Resurvey No.26/9/2 in Mylom village from one Mr.Sreedharan. 1 st appellant/1st claim petitioner is the wife of Mohanan, who is abroad. 2 nd appellant/2nd claim petitioner is the legal heir of Lillykutty. Appellants/claim petitioners are in possession and enjoyment of the petition schedule property. On 2/7/2022, when a surveyor, an Advocate Commissioner and Amin deputed from the Family Court, Kottarakkara visited the petition schedule property, appellants/claim petitioners came to know that there was a suit as O.S.118/2005 filed by R1 and R2 against R3 Daniel and they had obtained an ex-parte decree against R3 and in E.P.43/2018 in O.S.118/2005, the Family Court, Kottarakkara executed a settlement deed No.1100/2020 of SRO Kottarakkara in favour of R2 - Lisy including the petition schedule property owned by appellants/claim petitioners covered by Ext.A1 sale deed. It was contended by the appellants/claim petitioners that their predecessor in title, Sreedharan, purchased the petition schedule property from R3 Daniel in the year 2004 and subsequently, in March 2007, Sreedharan and Daniel executed an exchange deed in respect of their respective properties. Though R3 had filed a suit as O.S.NO.97/2007 before the Sub Court Kottarakkara against Sreedharan, Mohanan and Lillykutty claiming ownership over the petition schedule property, the said suit was dismissed. The petition schedule property belongs to the appellants/claim petitioners. Hence, the claim petition is filed to set aside the attachment order in O.S.118/2005 and in E.P.43/2018 and to release the claim schedule property from the attachment with a further relief to set aside the settlement deed No.1100/2020 of SRO Kottarakkara executed by Family Court, Kottarakkara in favour of R2 Lisy.

(3.) Respondents 1 and 2 resisted the claim petition, contending that the petition is not maintainable either in law or on the facts; that the claim petitioners or their predecessors in interest have not acquired any title or possession over the petition schedule property. According to respondents 1 and 2, the claim petition has been filed with the ulterior motive of causing obstruction to the delivery of the property in favour of R2 in the execution proceedings. R1 and R2 filed O.S.112/2001 before the Family Court, Kollam, against R3 Daniel, claiming past and future maintenance and also claiming marriage expenses of R2. By order dtd. 7/4/2001, the Family Court, Kollam, attached the petition schedule property belonging to R3 under Order XXXVIII Rule 5 CPC. Subsequently, O.S.112/2001 was transferred to Family Court, Kottarakkara, which was renumbered as O.S.118/2005. While the said suit was pending before the Family Court, Kottarakara, R3 Daniel who was the sole defendant in the said suit, entered into a compromise with the R2 herein, namely the 2nd plaintiff in O.S.118/2005 and he agreed to transfer his landed property, including the petition schedule property in favour of R2 - Lisy and accordingly, a compromise decree was passed on 29/9/2007 in O.S.No.118/2005. When the 3 rd respondent - Daniel who was the judgment debtor in O.S.118/2005 failed to execute the conveyance deed in respect of the property as mandated in the compromise decree, 2 nd respondent - Lisy/decree holder filed E.P.No.43/2018 for getting the conveyance deed executed through the process of the Family Court and accordingly, on 16/7/2020 the Family Court executed the conveyance deed in respect of the petition schedule property in favour of 2nd respondent Lisy and thus Lisy obtained title and ownership over the petition schedule property. Since there was an attachment over the petition schedule property, R3 Daniel had no right to alienate the property in favour of Sreedharan in violation of the attachment order. Mohanan and Lillykutty, who allegedly purchased the property from Sreedharan have had knowledge of the attachment order in respect of the petition schedule property and they fraudulently obtained the sale deed by colluding with R3 Daniel and created documents by influencing the revenue officials. The alienation of the property allegedly done by R3 Daniel, which was under attachment, is barred under Sec. 64 CPC. The appellants/claim petitioners are not entitled to the reliefs sought in the claim petition.