P. FATHIMA Vs. ARUNAPRIYA AND OTHERS

JUDGEMENT

(1.) Petitioner preferred a claim petition as E.A.No.315 of 2017 in E.P.No.102 of 2014 in FDIA No.2017 of 2006 in O.S.No.155 of 2003 on the file of the Sub Court-II(A), Kozhikode.

(2.) Heard the learned counsel for the petitioner and perused the records.

(3.) 1st respondent filed O.S.No.155 of 2003 before the Sub Court, Kozhikode seeking partition of the plaint schedule properties. 2nd respondent was the defendant in the suit. Admittedly, a preliminary decree for partition was passed as early as on 17.09.2004. Thereafter, a final decree application was preferred in 2006 and a final decree was passed in terms of the preliminary decree. Thereafter, the 1st respondent preferred the execution petition mentioned above. Petitioner would contend that House No.20/1282 in the plaint schedule property belonging to the 2nd respondent was mortgaged to the petitioner for a sum of Rs. 2,00,000/-. It is apposite to note that by virtue of section 59 of the Transfer of Property Act, the petitioner cannot be heard to say that there is a valid mortgage as the provision of law reads thus: