K V TESSY Vs. SUVARNA INVESTMENTS

JUDGEMENT

(1.) This revision is directed against the order dated 17/08/2005 in EA No. 536/2005 in EA 1551/1999 in EP 894/1998 in OS 310/1985 passed by the Sub Court, Trichur.

(2.) Petitioner herein filed a claim petition as EA 1551/1999 in EP 894/1999. The respondent herein is the decree holder in a money suit OS 310/1985. Petitioner is a third party claimant whose property was attached in the execution stage. It was to lift the attachment the claim petition was filed. The Court below, after adjudication, dismissed the claim petition. Though yet another claim was preferred as EA 116/2000 in respect of another property; but that is not the subject matter of this revision. As against the order dismissing EA 1551/1999 as well as the order in EA 116/2000, two EFAs were filed before this Court as EFA Nos. 26 and 27/2001 respectively. This Court, by a common judgment dated 22/11/2004, disposed of those two appeals by remanding the matter for fresh consideration in accordance with law. The operative portion of the judgment reads as follows:

(3.) Though the petitioner paid the cost she did not make the deposit within time as directed in the judgment. She, therefore, filed an application for enlargement of time as per IA 123/2005 before this Court. The same was allowed and the time for deposit of the amount was extended till 01/03/2005. The said IA was allowed on 11/02/2005 as noticed by the Court below in the impugned order. In the mean time, on 18/01/2005, the sale was confirmed in favour of the plaintiff, he being the purchaser. Thereafter, petitioner filed the present review application EA 536/2005 seeking review of the order. The Court below dismissed the application on the ground that the petitioner did not challenge the order dated 18/01/2005 before this Court and further, the extension of time was sought suppressing the fact that the sale has already confirmed on 18/01/2005. Further, the decree holder deposited the amount for purchasing the non judicial stamp paper for issuing the sale sannad on 01/03/2005. It is specifically urged in the memorandum of revision that the application seeking enlargement of time was filed before this Court on 10/01/2005 and it was thereafter, the sale was confirmed on 18/01/2005, true, before any order was passed by this Court on the petition for enlargement of time. Therefore, as on the date on which the application for enlargement of time was filed before this Court, petitioner had no occasion to refer to the confirmation of sale since this was happened only later and hence there is no suppression of any fact by the petitioner herein, as observed in the order impugned. The fact that the petitioner did not challenge the order of confirmation by an independent proceeding also will not debar her from seeking a review. As a matter of fact, if that order was challenged, even review may not be maintainable. The question is as to what is the effect of the order enlarging the time for depositing the amount as originally fixed in the judgment in EFA Nos. 26 and 27/2001 and whether there is any bar in confirming the sale in case the claim petition was pending as on the date of confirmation, i.e. 18/01/2005 arises for consideration.