SAM JOSEPH Vs. JUDE THADEVUS

JUDGEMENT

(1.) This appeal arises from the order passed by the Court of the Subordinate Judge of Ernakulam on 29.06.2017 in E.A. No. 411 of 2017 in E.P. No. 213 of 2016 in O.S. No. 186 of 2012. By the impugned order, the court below dismissed the application filed by the appellant, the first judgment debtor in O.S.No. 186 of 2012 under Order 21 Rule 97(2) of the Code of Civil Procedure to record his resistance to the delivery of the properties sold in execution of the decree for money passed therein.

(2.) O.S No. 186 of 2012 is a suit instituted by the first respondent in this appeal (Jude Thadevus) for realisation of the sum of Rs.15,00,000/- paid as advance sale consideration to the appellant and respondents 2 to 4. The said suit was decreed on 19.12.2013. The agreement for sale pursuant to which the advance sale consideration was paid was entered into between the parties on 08.09.2010. O.S.No. 186 of 2012 above referred to was decreed ex parte on 19.12.2013. When the decree debt was not satisfied, the first respondent in this appeal filed E.P No. 195 of 2014 to execute the decree, by the sale of the very property, which was the subject matter of the agreement for sale. In the said execution petition, after notice to the judgment debtors, 6 cents of land belonging to them was brought to sale and sold on 06.04.2015 and it was purchased by the decree holder himself, who was allowed to bid and set off under Order 21 Rule 72 of the Code of Civil Procedure. The judgment debtor did not apply to have the sale set aside. With the result, it was confirmed on 08.04.2016. A sale certificate was also issued to the decree holder/auction purchaser on 19.11.2016. He thereafter filed E.P. No. 213 of 2014 for delivery of the property purchased by him in the court sale. It was while the said petition was pending that the first defendant filed E.A. No. 411 of 2017 with a prayer that his resistance to the delivery may be recorded and the application for delivery may be dismissed. He had also prayed that the judgment debtors may be allowed to sell 2 cents out of the 6 cents brought to sale and sold in the court auction. The said application was as stated earlier dismissed by the impugned order.

(3.) After this appeal was filed and it was entertained by this court, the supplemental fifth respondent was impleaded pursuant to the order passed by this court on 07.08.2017 on I.A. No. 718 of 2017. Before the said application was allowed, Sri. Thomas John Ambooken, learned counsel, took notice for the additional fifth respondent. Learned counsel on both sides also submitted that the additional fifth respondent has agreed to purchase the entirety of lands belonging to the judgment debtors having an area of 6.750 cents, including the properties sold in the court sale for a total sale consideration of Rs.60,00,000/-, that the parties have agreed that out of the said sale consideration of Rs.60,00,000/-, the sum of Rs.23,00,000/- can be paid to the decree holder/auction purchaser towards full and final settlement of his claim and that upon payment of the balance sale consideration to the judgment debtors, the judgment debtor will execute a sale deed conveying the aforesaid parcel of land to the additional fifth respondent.