WP(C)/38138/2007 of C.C.KURIAN Vs THE SPL.DEPUTY TAHSILDAR (RR),KZD.& ORS. on 28 December 2007

JUDGMENT

Petitioner purchased an extent of 20 cents of land underExt.P1 sale deed of the year 1995, from the 3[rd] respondent.Apparently, the said property along with another property hadbeen mortgaged by the erstwhile loanee- the 3[rd] respondent, withthe 2[nd] respondent, at the time of prizing the chit which wasconducted by the 2[nd] respondent. In Ext.P3, there is a referenceto the request made by the 3[rd] respondent for the release ofdocuments covering 20 cents of land. Be that as it may,apparently, conveyance under Ext.P1 took place and accordingto the petitioner, he is in possession of the property. It seemsthat the 3[rd] respondent has defaulted payment of amounts andsteps were taken against the properties belonging to thedefaulter. The petitioner is aggrieved by Ext.P2 noticedemanding an amount of Rs.2,40,376.70 from the petitioner aswell. Under Ext.P2, there is a proposal to proceed against theproperty covered by Ext.P1. Hence this writ petition.

2. In my view, the petitioner has an efficacious remedy byway of a claim petition under the Revenue Recovery Act. If the

petitioner acquired title to the property prior to it isencumbrance with the 2[nd] respondent or at a point of timewhen it was not otherwise encumbered, then, unless it isfound by the revenue officials that the sale is effected todefeat the interest of the creditor, the said property may notbe available to be proceeded against at the instance of the 2[nd]respondent for the default of the 3[rd] respondent. I hastenmake it clear that I am not expressing any opinion on themerits of the claim made by the petitioner.

3. I heard the learned counsel for the petitioner and thelearned Government Pleader and the learned counsel for the2[nd] respondent also.

4. In the facts and circumstances of the case and thenature of the directions proposed to be issued, it is notnecessary to issue notice to the 3[rd] respondent.

4. In the result the writ petition is disposed of in thefollowing terms.

i) The petitioner may file a claim petition before the 1[st]respondent within a period of six weeks from today, detailinghis title to the property covered by Ext.P1.

ii)If such claim petition is received within the

aforementioned period, the 1 respondent shall issue notice torespondents 2 and 3 as also the petitioner, conduct an enquiryand then pass an order as to whether the property belongingto the petitioner is otherwise available for recovery ofamounts due from the 3[rd] respondent. The petitioner is atliberty to bring to the notice of the 1[st] respondent, suchmaterials as are available to substantiate his claim.

iii) The 1[st] respondent shall pass reasoned ordersadverting to the above aspects within a period of threemonths from the date of receipt of the claim petition.

Further proceedings pursuant to Ext.P2 shall be kept inabeyance pending orders by the 1[st] respondent.

sj

V. GIRI, JUDGE.

/True copy/

P.A.TO JUDGE