LAWS(KER)-2011-7-185

THOMASKUTTY MATHEW Vs. K M RAMANI

Decided On July 26, 2011
THOMASKUTTY MATHEW Appellant
V/S
K.M.RAMANI Respondents

JUDGEMENT

(1.) PETITIONER is the auction purchaser in O.S.No.258 of 2003 of the Court of learned Sub Judge, Thalassery. The Federal bank obtained a decree against respondents 1 and 2 and in execution of that decree, their property was sold in Court auction on 24.02.2006 and confirmed on 20.10.2006. In the meantime respondents filed an application to set aside the sale under Order XXI, Rule 89 of the Code of Civil Procedure (for short, "the Code"). That application was dismissed against which they filed C.R.P.No.268 of 2006 which this Court dismissed with liberty to respondents 1 and 2 to file application under Order XXI, Rule 89 of the Code on deposit of the amount. It is submitted that respondents 1 and 2 without taking recourse to that remedy filed application under Rule 13 of Order IX of the Code to set aside the ex parte decree with an application to condone the delay of 1128 days. Those applications were allowed by the learned Sub Judge against which plaintiff filed W.P(C).No.11499 of 2008. This Court set aside the order and remitted the matter to the learned Sub Judge for fresh decision. Thereafter learned Sub Judge dismissed those applications. Then respondents 1 and 2 filed separate applications - E.A.Nos.1057 of 2007 and 61 of 2008 in the executing court purporting to be under Sec.47 of the Code in E.P.No.222 of 2007 filed by the petitioner seeking delivery of property. Now the said applications are pending and respondents filed E.A.No.663 of 2009 for appointment of the Advocate Commissioner to ascertain value of the property sold. There is yet another application to receive the document (also for proving value of the property and examine the assignor under the said document). Request of petitioner in this proceeding is to direct the executing court to depute an Amin with police assistance to deliver property to the petitioners. Learned counsel submitted that court procedure before the executing court is nothing but an abuse of the process of Court.

(2.) NOW that two applications filed by respondents 1 and 2 under Sec.47 of the Code are pending consideration in the executing court, those applications have to be disposed of by the said Court. This Court cannot, overlooking the said applications direct delivery of property. The appropriate course open to the petitioner is to request the executing court to dispose of E.P.No.222 of 2007 and E.A.Nos.1057 of 2007 and 61 of 2008 as early as possible.