JACOB KUNNATH POULOSE Vs. WILSON ENASSERIVEETTIL KURIAN

JUDGEMENT

(1.) The appellant herein is the claimant in E.A.89/2006 in E.P.425/2000 in O.S.446/1999 on the file of the Addl. Sub Court, Thrissur. The said application was filed under Order 21 Rule 99 CPC complaining of threat and dispossession from the property (10 cents) which was under order of attachment in the aforementioned suit. The execution court dismissed the said application as per order dt. 28.3.2006. An appeal preferred by the appellant as A.S.122/2006 before the Addl. District Court, Thrissur was also dismissed. Hence this second appeal.

(2.) The learned counsel appearing for the appellant made the following submissions before me in support of the appeal:- The appellant who is a stranger to the suit had agreed to purchase the attached property on 17.5.1988. He paid an advance of Rs.3,00,000/-. He was put in possession also under the agreement which was one reduced to writing. He has so far paid Rs.9,00,000/- to the defendant in O.S.446/1999. The aforementioned suit was a collusive money suit in which the appellant's vendor who figured as the defendant did not reveal the agreement in favour of the appellant. The agreement for sale in favour of the appellant was entered into before the order of attachment. Hence the appellant is a bona fide purchaser whose rights under the agreement cannot be defeated in execution of the collusive decree passed in the above suit (vide Ramesan v. Abdul Majeed - 1987 (1) KLT 864 and Abdul Jalal v. Mariya Financiers - 2002 (2) KLT 107). It is true that the appellant did not produce the agreement before the execution court. But he produced the same before the lower appellate court as per I.A.1826/2006. The said application for receiving additional evidence ought to have been considered before the appeal before the lower appellate court was taken up for consideration (vide Sankaranarayanan v. Rama Guptan - 1979 KLT 744). However, the lower appellate court rejected the said application only while disposing of the appeal. The orders passed by the courts below are thus liable to be set aside.

(3.) I am afraid that I cannot agree with the above submissions. O.S.446/1999 was a money suit filed by the 2nd defendant herein against the 1st respondent. The said suit was, after a contest, decreed. The decree holder/2nd respondent filed E.P.425/2000 for realisation of the decree amount of Rs.1,64,314/- by sale of the immovable properties of the 1st respondent herein. The sale was conducted on 28.6.2002 and the property was sold for Rs.1,85,000/-. In the objection filed in response to the notices under Order 21 Rules 22 and 66 CPC, the 1st respondent had not mentioned about any agreement having been entered into by him for sale of the 10 cents of property claimed by the appellant herein. The sale was adjourned on several occasions on the application of the 1st respondent herein who had no case at any point of time that there was an agreement for sale in favour of the appellant herein. As per E.A.889/2002, the 1st respondent/judgment debtor had filed an application for setting aside the sale. The said application was dismissed. An appeal before the District Court and a civil revision petition before this court by the 1st respondent/judgment debtor were also dismissed. He had no case before the superior courts also that there was an agreement for sale in respect of 10 cents of property. It was long thereafter when the property was attached in execution that the appellant claiming himself to be the beneficiary of an agreement for sale dt.17.5.1988 came out with a claim that he had agreed to purchase 10 cents and had paid an advance amount of Rs.3 lakhs. The property is situated in Kunnamkulam village of Thalappilli taluk in Trichur District. The appellant/claimant hails from Kunnathunadu near Perumbavoor. He claims to have paid a further amount of Rs.6 lakhs thus totaling to Rs.9 lakhs for the property. The entire property itself was purchased by the 1st respondent/judgment debtor in the year 1987 for Rs.55000/- only. He did not even produce the alleged agreement for sale before the executing court. It was only in the appeal preferred by the appellant before the lower appellate court that he produced the alleged agreement for sale. He had not made out any of the grounds under Order 41 Rule 27 CPC so as to justify reception of additional evidence in appeal. No acceptable reason for not producing the agreement before the executing court was also put forward. The stamp paper for the agreement appears to have been purchased not in the name of the appellant, but in the name of the 1st respondent who had fought the matter up to this court. Under these circumstances the courts below were fully justified in rejecting the application filed by the appellant for setting aside the sale. I do not find any question of law, much less any substantial question of law, so as to justify admission of this second appeal under sec.100 CPC in the light of the decision reported in Gurdev Kaur v.Kaki - AIR 2006 SC 1975. This second appeal is, therefore, dismissed.