Aggrieved by the order dated 20.7.2001 in E.P. 182 of 1983 in O.S. 149 of 1980, the auction purchaser before the execution court has come up in revision.
2. The controversy involved in this proceedings fall within a narrow compass. Much of the facts are not in dispute. The brothers of the petitioner availed a loan from State Bank of Travancore which they defaulted in repayment resulting in their property being brought to sale. Four items were brought to sale and the properties were purchased by the petitioner. The sale in favour of the petitioner was confirmed and the sale certificate was issued as could be seen from the records. Three items of properties were taken delivery of. The fourth item comprised in Sy. No.215/5 having an extent of little over 8 and odd cents is yet to be delivered. The delivery of that item was stalled for the reason that the sister of the petitioner set up a claim over the car shed which according to the petitioner fall within the sale certificate and over which the sister of the petitioner had no right.
3. The court below, by the impugned order, came to the conclusion that the car shed made mention of in the sale certificate is in item No.2 and there was no car shed in item No.4 and therefore, the claim of the petitioner for delivery of the car shed attached to item No.4 cannot be sustained and declined to grant delivery.
4. It is significant to notice that both in the execution proceedings as well as in the proceedings before this Court, it was found that Baby Janardhanan, the sister of the petitioner, had property only in Sy. No.215/7 which was enclosed within well laid boundaries.
5. The Commissioner deputed in execution proceedings in his report and plan has identified the property which belongs to the sister of the petitioner who obstructed the delivery of the car shed and consequently item No.4 covered by the sale certificate could not be delivered. The Commissioner in no less terms said that the property which the sister of the petitioner was entitled to is comprised in Sy. No. 215/7 and no part of her property is taken in Sy. 215/5. It is significant to notice that it was found that though the sister of the petitioner was entitled to only 13 ½ cents, she was actually in possession of more than that and she retained possession of 1 ½ cents on the south eastern portion of her property which according the Commissioner was railway puramboke. We may not be much concerned with that aspect.
6. The sister of the petitioner, namely, Baby Janardhanan laid claim to the car shed on the ground that it was put up by her and it belonged to her and it was in her property. It is significant to notice that in E.A. 233 of 1983 filed by Baby Janardhanan which was brought before this Court in E.F.A.7 of 1992 this Court categorically observed that as far as Baby Janardhanan was concerned, her right is confined to 13 ½ cents comprised in Sy. No. 215/5 and it had become final. Going by the Commission report, obviously the car shed which is in dispute fall in Sy. No. 215/7.
7. Even assuming that there is no car shed as of now, the petitioner is entitled to get delivery of item No.4 as described in the sale certificate in respect of which sale has been confirmed.
8. The existence or non-existence of the car shed may not have much relevance in the sense that the property described as item No.4 property in the sale certificate should be delivered to the petitioner.
9. This Court is now given to understand that Baby Janardhanan has already sold the property and she had no interest in the property.
10. The Commissioner in his report has stated that the car shed portion falls within item No.4.
11. Therefore, the court below was not justified in declining to grant delivery of item No.4 mainly based on the fact that the car shed is not covered by the sale certificate. If as a matter of fact the car shed fall within the boundaries specified by the sale certificate, certainly, the petitioner is entitled to the delivery of the property.
In the result, this Civil Revision Petition is allowed, the impugned order so far as delivery of item No.4 is concerned is set aside and the court below is directed to take steps to have item No.4, whether it includes car shed or not, delivered to the petitioner within three months from 10.12.2014 on which day the parties shall appear before the executing court.
P. BHAVADASAN, JUDGE sb.