IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 155 of 2008()
1. B.ABDULLA, AGED 47 YEARS,
1. P.N.GANAPATHI BHAT, S/O.P.NARAYANA BHAT,
2. ISMAIL, S/O.ABDUL RAHIMAN ALIAS ADRAMA,
3. ABDULLA, BALLOOR HOUSE,
4. AYISHABI, D/O. ABDUL RAHIMAN ALIAS
5. SAFIYA, D/O.ABDUL RAHIMAN ALIAS
6. RUKIYA, D/O.ABDUL RAHIMAN ALIAS
7. MAIMOONA, D/O.ABDUL RAHIMAN ALIAS
For Petitioner :SRI.T.M.ABDUL LATHEEF
For Respondent :SRI.KODOTH SREEDHARAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
O R D E R
THOMAS P. JOSEPH, J.
C.R.P.No.155 of 2008
Dated this the 26th day of July, 2010.
This revision is in challenge of order dated 14.02.2008 in E.P.No.104 of 2007 in O.S.No.289 of 1986 of the court of learned Principal Munsiff, Kasaragod. One Appanna Naik obtained a decree for recovery of possession of property against petitioner and others in O.S.No.289 of 1986. While so Appanna Naik represented by one P.K.Krishna Prasad, his registered power of attorney holder is said to have executed an assignment deed in respect of the property allegedly covered by the decree in favour of respondent No.1. On the strength of that assignment deed respondent No.1 filed E.P.No.104 of 2007 and sought to execute the decree. That was objected by petitioner/judgment debtor No.4 on the ground that there is no proper assignment of the decree or the property dealt with therein in favour of respondent No.1 in that power of attorney holder was not authorised to make any such assignment and further that property referred to in the decree schedule is not the property allegedly assigned in favour of respondent No.1. Executing court vide order dated 14.02.2008 rejected that contention and ordered delivery of property. That order is under challenge in this revision. Learned counsel for petitioner/judgment debtor No.4 contends that executing court has not considered the questions whether respondent No.1 was entitled to execute the decree and whether there is any valid assignment in favour of respondent No.1. It is also contended by learned counsel that at any CRP No.155/2008
rate, there is no proper identification of the property in that even as pointed out by the executing court there is discrepancy in survey number of the property referred to in the decree schedule and the assignment deed relied on by respondent No.1. Learned counsel placed reliance on the Jai Narain v. Kedar Nath (AIR 1956 SC 359), Kottayam Orient Bank Ltd. v. Kurien (1959 KLJ 1463) and State of Rajasthan v. Basant Nahata ((2005) 12 SC 77). Learned counsel for respondent No.1 per contra contends that the assignment deed was executed by Shri P.K.Krishna Prasad on the strength of a registered power of attorney which could be presumed to be valid unless proved otherwise and that assignee of the property is entitled to execute the decree under Section 146 of the Code of Civil Procedure (for short, "the Code") even without reference to Order XXI Rule 16 of the said Code. Learned counsel contends that petitioner has no locus standi to challenge validity of the assignment deed executed by power of attorney holder of the original decree holder in favour of respondent No.1. It is contended that at any rate being a representative of the original decree holder, respondent No.1 is entitled to execute the decree and petitioner is bound to obey the decree.
2. Assignment deed in favour of respondent No.1 dated 30.03.2005 is produced in this proceeding. That document shows that the original decree holder, Appanna Naik purported to assign his right, title and interest over the CRP No.155/2008
property in respect of which he obtained a decree in O.S.No.289 of 1986 in favour of respondent No.1 and that the said document is executed through his power of attorney holder, Shri P.K.Krishna Prasad. Copy of the said general power of attorney is also produced in this proceeding. That is alleged to have been executed by Appanna Naik on 24.05.1996 in favour of Shri P.K.Krishna Prasad. In that power of attorney it is stated that executant intended to borrow a loan from the Kasaragod Co-operative Primary Agricultural and Rural Development Bank Ltd, he found it difficult to attend the said bank and hence he has appointed Shri P.K.Krishna Prasad as his agent to do the deeds referred to in the document on his behalf. It includes all procedures necessary for obtaining loan from the said bank. It is stated in the general power of attorney that executant has also conferred power on the holder of power of attorney "generally to do all other acts and things" and that all such things done by the holder on the strength of the power of attorney shall be binding on the executant. It is also stated that the executant has agreed to ratify and confirm all and whatever lawful acts done by the attorney and that the same shall have full force and effect. Argument of petitioner is that the power conferred as per the said power of attorney is confined to obtaining loan from the bank and to do whatever acts required for the said purpose. It is also contended that undertaking to ratify the acts done by the power of attorney is only to the extent of power conferred on him and that is to obtain loan from the bank. CRP No.155/2008
3. It is not disputed that the holder of power of attorney executed the assignment deed in favour of respondent No.1. It is also not disputed that power of attorney is a registered one. Registration should be presumed to have been done complying with the formalities referred to in the Registration Act which includes an admission by the executant that he has executed the document . No evidence is let in by the petitioner to show that the power of attorney is not executed by the original decree holder. Though it is contended on behalf of petitioner that executant was not even alive at the time of execution of power of attorney, no evidence in that line is adduced by the petitioner. It is also pertinent to note that none of the legal heirs of original decree holder has come forward claiming right over the decree schedule property.
4. Then the question is whether the assignment deed can be taken as valid. Assuming that the holder of power of attorney was not having the power to execute the assignment deed, the document is only voidable at the instance of legal heirs of original decree holder. It is not for petitioner to contend that the assignment deed is void in that it was executed by a person without power. Nor is the document voidable at the instance of petitioner. That is a contention which legal heirs of original decree holder might take if they are so advised to avoid the assignment deed. Hence the contention raised by the petitioner that assignment deed is not valid cannot stand. Assuming that Order XXI Rule 16 of the Code is not applicable, Section 146 of that Code empowers a representative of the party to do whatever that is required to be done by the party. Here, on the CRP No.155/2008
strength of assignment deed respondent No.1 claims to be the representative of original decree holder and hence as per Section 146 of the Code he is entitled to execute the decree. Decisions relied on by learned counsel for petitioner do not apply to the facts of the case. In Kottayam Orient Bank Ltd. v. Kurien question considered was when the original decree holder bank was amalgamated with another bank and the amalgamated bank wanted to execute the decree whether it required impleadment and amendment. The issue was answered in affirmative. In Jai Narain v. Kedar Nath what was considered was whether executing court could go behind the decree in the circumstances of the case stated therein.
5. It is true that executing court has not referred to the above said objection of petitioner but as I stated, petitioner did not adduce any evidence in the executing court in support of that contention. Having regard to the nature of contentions raised and in the light of the statutory provision referred to above I am unable to accept the contention of petitioner that respondent No.1 did not have the power to execute the decree against petitioner. In view of Order XXI Rule 35 of the Code petitioner is bound to comply with the decree. Hence objection in that line cannot be sustained.
6. Then the next question is whether there is proper identification of the property dealt with in the assignment deed vis-a-vis the decree schedule property. True there is some discrepancy or mistake as CRP No.155/2008
regards as survey number mentioned in the assignment deed with the survey number of the decree schedule property. Executing court has referred to that objection and stated that discrepancy in that way is irrelevant since in the assignment deed it is specifically stated that property covered by the decree in O.S.No.289 of 1986 is being assigned to the respondent. It is therefore, clear that what was assigned as per that document is the property in respect of which original decree holder obtained the decree which is sought to be executed in this case. Therefore, contention based on discrepancy in the survey number also cannot stand.
Having heard counsel on both sides and going through the order under challenge I find little reason to interfere with the impugned order. Accordingly revision petition fails. It is dismissed.
I.A.No.453 of 2008 will stand dismissed.