IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 OP(C).No. 2381 of 2011(O) ------------------------- EP NO.3/2011 IN OS.119/2010 of SUB COURT, NEDUMANGAD .................... PETITIONERS(S): ------------------------------- 1. SATHIKUMAR, AGED 45 YEARS, S/O.THAYYANAN NADAR, KRIPA SADANAM, THEVANCODE, MUKANTHARA DESOM, KALLIKADU VILLAGE, THIRUVANANTHAPURAM 2. LILLY BHAI, W/O.SATHIKUMAR, KRIPA SADANAM, THEVANCODE, MUKANTHARA DESOM, KALLIKADU VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.P.RAVEENDRAN PILLAI SMT.INDIRA RAVEENDRAN RESPONDENT(S): --------------- BHASKARAN, S/O.NARAYANAN, SIYON VEEDU, KILLI, ETTURUTHI MURI, KULATHUMMAL VILLAGE, THIRUVANANTHAPURAM, PIN – 695616. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.2381/2011 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS NO.119 OF 2010 ON THE FILES OF THE SUBORDINATE JUDGES COURT, NEDUMANGAD DATED 6.4.2010 EXT.P2 TRUE COPY OF THE JUDGMENT IN OS NO.119 OF 2010 ON THE FILES OF THE SUBORDINATE JUDGES COURT, NEDUMANGAD DATED 9.7.2010 EXT.P3 TRUE COPY OF THE EXECUTION PETITION, EP NO.3/2011 DATED 14.1.2011 EXT.P4 TRUE COPY OF THE IA NO.237/2011 IN OS 119 OF 2010 ON THE FILES OF THE SUBORDINATE JUDGES COURT, NEDUMANGAD DATED 1.3.2011 EXT.P4(a) TRUE COPY OF THE IA NO.238/2011 IN OS 119 OF 2010 ON THE FILES OF THE SUBORDINATE JUDGES COURT, NEDUMANGAD DATED 3.3.2011 EXT.P5 TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONERS TO EXT.P3, EP DATED 3.3.2011 EXT.P6 TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER TO THE SALE OF THE PROPERTY DATED 2.7.2011 EXT.P7 TRUE COPY OF THE IA NO.656/2011 ON THE FILES OF THE SUBORDINATE JUDGES COURT, NEDUMANGAD EXT.P8 TRUE COPY OF THE IA NO.659/2011 FILED BY THE PETITIONER IN OS 119 OF 2010 ON THE FILES OF THE SUBORDINATE JUDGES COURT, NEDUMANGAD EXT.P9 TRUE COPY OF THE EA DATED 27.6.2011 IN EP NO.3/2011 ON THE FILES OF THE SUBORDINATE JUDGES COURT, NEDUMANGAD EXT.P10 TRUE COPY OF THE PROCLAMATION IN OS NO.119/2010 IN EP NO.3/2011 ON THE FILES OF THE SUBORDINATE JUDGES COURT, NEDUMANGAD DATED 12.7.2011 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2381 of 2011 -------------------------------------- Dated this the 25th day of July, 2011. JUDGMENT Notice to the respondent is dispensed with in view of the decision I propose to take. 2. Petitioners are judgment debtors in O.S.No.119 of 2010 of the court of learned Sub Judge, Nedumangad. Respondent has obtained a decree for recovery of money in that suit and filed Ext.P3, E.P.No.3 of 2011 for execution of the decree. Property of petitioners was proclaimed. Petitioners preferred Ext.P5, objection to the execution petition and Ext.P6, objection to the sale of property contending that the entire property need not be sold for recovery of the decree amount and further contending that the decree was passed exparte without serving summons on petitioners and that they have already filed Exts.P4 and P4(a), applications to set aside the exparte decree and condone the delay on the trial side and those applications are posted on 04.08.2011 for hearing. Learned counsel submitted that if before disposal of Exts.P4 and P4(a), applications and at any rate, if the entire property is sold petitioners will be put to irreparable loss and injury. Hence this Original Petition to quash Ext.P10, proclamation. 3. Having heard learned counsel, I am inclined to grant some relief to the petitioners so that they could prosecute Exts.P4 and P4(a), applications said OP(C) No.2381/2011 2 to be filed on the trial side to set aside the exparte decree. So far as the objection to proclamation that the entire property is not required to be sold, it is a matter which petitioners could urge before the executing court at the appropriate stage. Resultantly this Original Petition is disposed of in the following lines: i. It is directed that the sale of property scheduled on 28.07.2011 will stand adjourned to a day after 10.08.2011 or till learned Sub Judge disposed of Ext.P4(a), application to condone the delay and Ext.P7, application for stay of execution of the decree, whichever is earlier. ii. Petitioners shall before the time scheduled for sale file affidavit in the executing court without prejudice to their contentions regarding settlement of proclamation and based on pendency of the applications before the trial court, waiving fresh proclamation for such sale. iii. It is open to the petitioners to raise their contention that entire property need not be sold for realization of the decree amount, in the executing court at the appropriate stage. THOMAS P.JOSEPH, Judge. cks