MALINGA NAIK Vs. IBRAHIM
LAWS(KER)-2003-12-118
HIGH COURT OF KERALA
Decided on December 15,2003

MALINGA NAIK Appellant
VERSUS
IBRAHIM Respondents

JUDGEMENT

- (1.) The appellants in these two appeals are members belonging to Scheduled Tribe in Kerala. Admittedly by them, the property in their possession and enjoyment had been sold in execution by a civil court. In the court sale, the property has been purchased by the first respondent. The sale has been confirmed in his favour. Later, the appellants filed an application under R.3(a) of the Kerala Scheduled Tribes (Restriction on Transfer of Land and Restoration of Alienated Lands) Rules, 1986 before the third respondent for restoration of the land purchased by the first respondent under court auction to the appellants. The third respondent allowed that application for restoration of the lands and directed the first respondent to hand over possession of the land purchased by him in court auction to the appellants within 30 days. The first respondent filed an appeal as provided in S.6(5) of the Kerala Scheduled Tribes (Restriction on Transfer of Land and Restoration of Alienated Lands) Act, 1975 before the second respondent. The second respondent, after hearing the parties dismissed the appeal. Ext. P4 is the order passed by the original authority and Ext. P6 is the order passed by the appellate authority.
(2.) Exts. P4 and P6 were challenged by the first respondent before this court in the respective Writ Petitions. The learned Single Judge allowed the Writ Petitions quashing Exts.P4 and P6 orders taking the view that the court sale will not come under transfer as defined in S.2(g) of the Act and therefore, there was no restriction as imposed by S.4. The learned Single Judge also found that the contention of the appellants that there was prohibition of attachment and sale of immovable properties possessed by the members of Scheduled Tribe, as per R.5 of the rules was also not available to the appellants, as they did not agitate that contention before the Execution Court and therefore, they were barred in pursuing that contention in terms of the principles contained in Explanation.4 to S.11 of the Code of Civil Procedure, 1908. The learned Single Judge also relied on the decision in Velayudhan Krishnan v. Bhagavathy Padmakshy, 1992 (2) KLT 440 , to hold that court sale will not come under transfer as defined in the Act. It is in the above circumstances, the appellants, the contesting respondents in the Original Petition have come up with those appeals.
(3.) The appellants reiterated their contentions. According to them, the execution court had attached their properties in execution of a money decree. Such attachment is prohibited as per R.5 of the Rules which reads as follows: 5.Prohibition to attachment of immovable properties- For the execution of a money decree against a member of Scheduled Tribe, no right or interest held by him in any immovable property shall be liable to be attached or sold: Provided that nothing contained in the above rule shall prohibit the attachment or sale of the right or interest held by any member of the Scheduled Tribe in any immovable property for the execution of a money decree for the realisation of maintenance of alimony: Provided further that the immovable property so attached shall not be sold to any person other than a member belonging to the Scheduled Tribe. Velayudhans case relied on by the learned Single Judge was not an attachment for a money decree. It was a case of mortgage where the prohibition contained in R.5 did not apply. So Velayudhans case ought not to have been relied on by the learned Single Judge to quash Exts. P4 and P6. It is further contended that the Act and the Rules are beneficial legislations in favour of the members of the Scheduled Tribe that the land in their possession and enjoyment shall not be taken over on any means including by a transfer by others. The provisions in the Act and the Rules therefore apply to the court decrees as well, when the sale is in execution of a money decree other than for maintenance and alimony. Therefore, they contend that the impugned judgment shall be set aside, the appeals shall be allowed.;


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