KURIAKO Vs. BABY

JUDGEMENT

(1.) Revision petitioner is the additional sixth judgment debtor in E.P. No. 345 of 1991, The first judgment debtor availed a loan from the Regional Service Cooperative Bank, Kaduthuruthy. Her father late Devasia offered 40 cents of property belonging to him as security by executing Security Bond, Ext. A6, dated 7.12.1977. The 40 cents offered as security by Ext. A6 is described as a southern most portion of 80 cents obtained by him in partition deed Ext. A1. In Ext. A1 partition deed 1 acre 62 cents are divided into equal halves and one part was allotted to Ouseph elder brother of Devasia in Schedule 'C' and the remaining part was allotted to Devasia in Schedule 'D'. Out of the D schedule property in the partition deed 40 cents were given as security by Ext. A6. Since the loan was not repaid, Bank had obtained an award against the first judgment debtor and the guarantor Devasia as second judgment debtor. The Assistant Registrar of Cooperative Societies Vaikom, sold the property secured in public auction. Respondent herein purchased the property in the auction held on 24.4.1989. Second judgment debtor in the award whose property was sold died on 23.11.1987. His legal representatives were not impleaded in the proceedings before the Assistant Registrar. Therefore, it is contended by the revision petitioner that the legal representatives of the deceased second judgment debtor are not bound by the sale. The Assistant Registrar executed Ext. B2 sale deed of the year 1990 in favour of the auction purchaser in which it is indicated that the auction purchaser is put in possession. In accordance with R.84 of the Kerala Cooperative Societies Rules E.P. No. 345 of 1991 was filed before the Munsiff's Court, Vaikom for execution. The Court below issued notice to the legal representatives of the petitioner for delivery and sixth judgment debtor, one of the sons of Devasia, entered appearance and filed E. A. No. 1790 of 1992 praying for declaration that the property is not liable to be delivered and execution petition is liable to be dismissed. Two grounds are stated by him. First ground is that sale was conducted after the death of the second judgment debtor Devasia without impleading his legal representatives. Since the owner of the property Devasia was no more on the date of sale, the sale is null and void. The second ground is that the property sought to be delivered over actually is the C schedule property belonging to the brother of Devasia the other side in Ext. A1 partition deed. By Ext. A2 sale deed in the year 1972 and Ext. A3 sale deed in the year 1974 those properties were purchased by the revision petitioner and it is not the property of Devasia. It is the contention that since survey numbers were the same there were some confusion. The property belonging to Devasia was not sold in execution. Therefore, the delivery cannot be effected. The property which is sought to be delivered is the property which was given to Ouseph under Ext. A1 partition deed and it was purchased by the revision petitioner subsequently much before the sale.

(2.) The court below dismissed the application on the ground that no objection was raised by the additional sixth judgment debtor before the Assistant Registrar. It is not proved that the property sold was not the property given as security by the second judgment debtor. It was also stated that sale was conducted with notice to the first judgment debtor and after paper publication. There is no document to show that property sought to be delivered over is not the property of the second judgment debtor. These findings are attacked by the revision petitioner.

(3.) It is contended by the respondent that if the sale is invalid the revision petitioner has to approach the Assistant Registrar under R.82 of the Kerala Cooperative Societies Rules. Under R.82 where immovable property has been sold by the sale officer and if anybody wants to set aside the sale can apply to the Registrar after depositing 5% of the purchase money and after complying with the conditions prescribed in R.82. Here no such application was filed. It was also pointed out that there is no provision for impleading the legal representatives by the Assistant Registrar. The Assistant Registrar conducted the sale. The Court only executed the delivery in accordance with R.84 of the Kerala Cooperative Societies Rules. The application for delivery of possession was done within the time prescribed under R.84 of the Kerala Cooperative Societies Rules. It was further contended that no material was produced by the revision petitioner before the execution court that property given as security and property sought to be delivered are different. In any event, such objection ought to have been filed before the Assistant Registrar, and what is now sought to be delivered is the property covered by the sale deed. Before the execution court it cannot be contended that the property covered in the sale deed is not the property covered under the security deed. Such objection ought to have been filed in time before the Assistant Registrar and that was not done. Therefore, none of such contentions can be raised. It is also submitted that the sale was conducted after public notice and during sale one of the legal representatives came and objected and that objection was overruled. Therefore, it cannot be stated that the sale was conducted without the knowledge of the legal representatives. Therefore, sale conducted was valid. It is not questioned before the Registrar as provided under R.82. Since the sale is valid, the property which is sought to be delivered as per the sale deed has to be delivered and there is no infirmity in the order.