NAHALA Vs. ADISH

JUDGEMENT

(1.) A claim petition filed by the Thrissur Service Co-operative Society Ltd. 1097 Thiruvambady (hereinafter called as claim petitioner) under Order XXI Rule 58 of the CPC in E.P. No.2/2016 was allowed by the Family Court, Thrissur by its order dated 21.3.2018. By the impugned order, the court upheld the charge claimed in the property by the Society and the decree holder was permitted to bring the property for sale subject only to the mortgage right held by it. The decree holder being the sole person aggrieved by the order, challenges the same in this O.P. invoking the powers of this Court under Article 227 of the Constitution of India.

(2.) The decree holder in O.P.862/2013 obtained a compromise decree on 15.6.2015, creating charge over 1.17 ares of land in survey No.222/5 B in Koorkanchery village, owned by third respondent under partition deed No.4533/2010 dated 1.12.2010. This property stands described as (C) schedule in the O.P. One of the terms agreed upon in the compromise decree by the parties is that, the respondents will be at liberty to encumber the property for raising funds for the purpose of satisfying the claim of the decree holder. With this object in mind, the attachment of the property effected before judgment on 7.6.2013, was lifted, subsequently on 27.7.2015. When the respondents in the O.P. failed to discharge their liability the decree holder filed E.P.No.2/2016 for realisation of an amount of Rs.13,68,360/- with interest from the judgment debtors and also applied for sale of the property based on the charged decree passed on 15.6.2015. It is in this context, the claim petitioner filed E.A. 298/2017 claiming first charge on the property and opposed the proposed sale in the execution proceedings.

(3.) The claim petitioner contended that the judgment debtors 2 and 3 had availed loans on various occasions mortgaging the property in its favour. There were transactions creating charge in the property even before institution of the Original Petition and also after lifting of attachment. The decree holder, who is the first respondent in the E.A.298/2017, opposed the claim petition. The judgment debtors, who are the parties to the compromise decree, did not choose to contest the claim petition for their own reasons.