IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 WP(C).No. 25422 of 2009(O) -------------------------- CMA.24/2009 of SUB COURT,NEYYATTINKARA OS.1138/1999 of I ADDL.M.C.,NEYYATTINKARA .................... PETITIONER(S): --------------- 1. RAJENDRAN NAIR, S/O.SUKUMARAN NAIR, VIJAYA NIVAS, KONDODE, MARUKIL DESOM, MALAYINKEEZHU VILLAGE, THIRUVANANTHAPURAM. 2. SREEKALA, D/O.VIJAYAMMA, IN -DO- -DO- BY ADV. SRI.VINOD J.DEV SRI.PRAMOD J.DEV RESPONDENT(S): --------------- INDIRA KUMARI,D/O.SUBHADRA AMMA, BIJU SADANAM, KURUVIMUKAL, MACHEEL, MARUKIL DESOM, MALAYINKEEZHU VILLAGE, THIRUVANANTHAPURAM. ADV. SRI.R.GOPAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.25422 OF 2009 (O) ----------------------------------- Dated this the 23rd day of September, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to issue appropriate order or direction, directing the learned Sub Judge, Neyyattinkara to consider and pass orders on Exts.P4 (a) and P4 (b) as expeditiously as possible; ii. to issue an order, directing the learned Additional Munsiff-I, Neyyattinkara to consider and pass appropriate orders on Ext.P1 as expeditiously as possible; 2. Petitioners are the judgment debtors in E.P.No.244 of 2003 in O.S.No.1138 of 1999 on the file of the Additional Munsiff's Court, Neyyattinkara. Admittedly, the property of the petitioners/judgment debtors has been brought to sale in WPC.25422/09 2 execution of the decree passed in the above suit. After sale was conducted, judgment debtors have filed an application under Order XXI Rule 90 of the Code of Civil Procedure impeaching the sale, and, without considering that application, sale has been confirmed later by the court, is the challenge canvassed in the writ petition seeking the aforementioned reliefs invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. Notice being given, the respondent/decree holder has entered appearance. I heard the learned counsel on both sides. It is not disputed that an appeal preferred by the petitioners in respect of the order passed by the court on their application, after sale was conducted by the court, is now pending before the District Court, Thiruvananthapuram. Before filing that appeal, a revision was filed before this Court impeaching the correctness of the order passed by the execution court. The revision was not numbered, as the order appeared to be one not entertainable invoking the jurisdiction WPC.25422/09 3 under Section 115 of the CPC. On the request made by the counsel, the unnumbered revision was placed before this Court, and, after hearing the counsel on its entertainability, it was rejected. In the unnumbered revision filed before this Court, the petitioners/judgment debtors have impeached the orders challenged therein contending that the application filed by them was one under Order XXI Rule 89 of the CPC, for which, according to them, there is no period of limitation. It was further contended in the memmorandum of that revision the period for making deposit subject to Order XXI Rule 89 of CPC and Article 127 of the Limitation Act has no relevance to question the order passed by the execution court. This Court, on the submissions made and the grounds canvassed in the revision, and taking note that an appeal as provided under Order XLIII Rule 1 of CPC is provided to challenge an order passed on an application under Order XXI Rule 89 of CPC refuted the unnumbered revision. While rejecting that revision, the right of the petitioners, if any, to challenge the order of the execution court in proper proceedings was reserved. Pursuant to thereof, these petitioners have filed an WPC.25422/09 4 appeal against the order which was previously challenged in that unnumbered revision, and, that is now pending before the Sub Court, Neyyattinkara. Now the learned counsel appearing for the petitioners submits that appeal itself is not maintainable as the petition filed by the judgment debtors long after the confirmation of the sale would not fall within the ambit of Order XXI Rule 89 of the CPC. Whatever that be, a party to a proceedings in a suit cannot approbate and reprobate taking different stand one militating against the other to get favourable orders from the Court. It is too late in the day for the petitioners to contend after filing a revision before this Court that the order challenged in the unnumbered revision would not fall under Order XXI Rule 89 of CPC, that too, at a time when they continue to prosecute that order of the execution court by way of an appeal before the Sub Court. Needless to point out, the judgment debtors after the sale cannot maintain application under Order XXI Rule 89 of the CPC and also Order XXI Rule 90 of the CPC together, and they have to elect one or the other, if at all, they have got any right for setting aside the sale. The ingredients to be satisfied for WPC.25422/09 5 entertaining the two applications under the above two rules are entirely different and one cannot go with the other. The grievance now canvassed that there was irregularity by the court in not considering the application moved by the petitioner for setting aside the sale, which was purportedly filed under Order XXI Rule 90 of CPC, before confirming the sale, in the given facts of the case, deserves to be taken note of only for its rejection. I do not find any merit in the writ petition, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp