Radhakrishnan Nair vs Madhusoodhanan Nair and A. Sajikumar

Thomas P. Joseph, J.—Petitioner is a non party to the pending suit, O.S. No. 40 of 2005. Petitioner filed O.S. No. 240 of 2008 in the court of learned Sub Judge, Neyyattinkara against respondent No.2 for recovery of money and attached property of respondent No. 2. Respondent No. 1 obtained decree for recovery of Rs. 1,60,000/- from respondent No. 2 in O.S. No. 40 of 2005 of the same court and is taking steps to bring the 44 cents belonging to respondent No. 2 and which petitioner claimed, he has attached in O.S. No. 240 of 2008 for sale in execution of the decree in O.S. No. 40 of 2005. Contention of petitioner is that respondent Nos. 1 and 2, to defeat petitioner is colluding and has shown a meager amount as price for the 44 cents. Respondent No. 1 has not even mentioned in proclamation schedule attachment of property in O.S. No. 240 of 2008. In the circumstance petitioner filed E.A. No. 346 of 2008 in E.P. No. 75 of 2006 in O.S. No. 40 of 2005 purportedly under Order 21 Rule 58 and Section 151 of the CPC (for short, "the Code") requesting executing court to include the sum of Rs. 4,76,000/- due to the petitioner from respondent No. 2 while conducting auction. That application has been dismissed by the executing court as per Ext.P6, order which is under challenge in this writ petition. Learned Counsel for petitioner placing reliance on the decisions in Muthuraj (Minor) represented by next friend v. Ramaswami Kounder ILR 2006 Ker 466 and Kuruvilla v. Corporation Bank 2008 (1) KLT 604 has argued that executing court is under an obligation to apply its mind and bring to sale only such portion of the property as would be necessary to satisfy the claim of respondent No. 1. Learned Counsel contended that collusion between respondent Nos. 1 and 2 to defeat contention of petitioner is writ large in that, the proclamation schedule states value of the property as substantially low.

Mere fact that petitioner has obtained an attachment of property of respondent No. 2 now being brought up for sale in execution of the decree in O.S. No. 40 of 2005 does not enable petitioner to interfere at this stage. This Court in Iyyunni v. Anto 1994 (1) KLT 583 has held that attachment is not an encumbrance over the property and hence a prior attachment is not a material particular required to be mentioned in the proclamation schedule. Nor can petitioner come u/s 73 of the Code in that admittedly, he has only an attachment of the property to his credit and he has not so far obtained a decree against respondent No. 2. Nor can a claim under Order 21 Rule 58 of the Code be entertained merely on the strength of attachment before attachment obtained by the petitioner. Therefore I do not find any infirmity in the order under challenge requiring interference. If petitioner has other remedies available to him after sale is conducted and petitioner has a case that it is fraudulent and collusive, it is open to the petitioner to work out his remedies as provided under law.

Resultantly this writ petition fails and it is dismissed without prejudice to other remedies if any of the petitioner to challenge the sale if any conducted by the executing court.