IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 OP(C).No. 265 of 2011(O) AGAINST THE ORDER IN EP.262/2009 IN OS.87/2006 OF PRINCIPAL SUB COURT,KOLLAM PETITIONER: -------------------- SREEKUMARA KURUP , S/O.NARAYANAN NAIR REKHASREE VEEDU, 957-A, THIRUMULLAVARAM, KOLLAM WEST VILLAGE, KOLLAM-12. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL SRI.M.H.HUBAISE RESPONDENTS: --------------- 1. M.SREEKANDAN NAIR ,S/O.MADHAVAN PILLAI SREEPADMAM, THIRUMULLAVARAM,KOLLAM-12. 2. SHEELA KUMARA @ SHEELA KUMARI W/O. SREEKUMARA KURUP, REKHASREE VEEDU, 957-A THIRUMULLAVARAM, KOLLAM WEST VILLAGE, KOLLAM-12. R1 BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 265 OF 2011 O ------------------------------------------------------ Dated this the 1st day of February, 2011 JUDGMENT The first respondent obtained a decree in O.S.No.87 of 2006 on the file of the Court of the Principal Subordinate Judge, Kollam, against the second respondent. The suit was for realisation of money. Execution Petition was filed in 2009 as E.P.No.262 of 2009. In the execution proceedings, an application for attachment was filed by the decree holder in July, 2009. One-half right of the second respondent in an item of immovable property having an extent of 2.35 Ares was attached. In the execution proceedings, the property attached was ordered to be sold. On 6.12.2010, the petitioner, who is the husband of the judgment debtor, filed E.A.No.1315 of 2010 under Rule 58 of Order XXI of the Code of Civil Procedure contending that he has one-half right in the property sought to be sold and therefore, without partitioning the property, sale cannot be held. The petitioner also raised a contention that a house was constructed by him in the property after getting a loan from Canfin Homes Limited. The house belongs to him. He has got one-half O.P.(C) NO.265 OF 2011 O :: 2 :: right in the immovable property as well. It was also contended that the property was not properly valued by the decree holder and the sale proclamation was issued without estimating the valuation of the property. In the application, the petitioner also pointed out that in another suit, O.S.No.39 of 2006, the property sought to be sold in the present case was attached and it was not disclosed by the decree holder before the executing court. 2. The grievance of the petitioner is that before ordering sale, his application under Rule 58 of Order XXI of the Code of Civil Procedure was not considered by the court below. The prayer in the Original Petition is to issue a direction to the court below to consider and pass orders in E.A.No.1315 of 2010 before conducting sale of the property. 3. Learned counsel for the first respondent/decree holder submitted that the application under Rule 58 of Order XXI of the Code of Civil Procedure was filed after more than one year of the date on which the attachment was effected. The application is unnecessarily and designedly delayed. The application was filed O.P.(C) NO.265 OF 2011 O :: 3 :: only to protract the execution proceedings. Even in the attachment schedule, it was made clear that the judgment debtor has only half right in the property. The contention put forward by the petitioner that sale can be effected only after partitioning the property is without merit and unsustainable. 4. The contention that the half right of the judgment debtor could be sold only after effecting partition of the property and separating the share of the petitioner is unsustainable. However, in view of the fact that the petitioner has raised a contention that the house belongs to him exclusively and that the sale, if any, could be had after excluding the house, requires consideration. The executing court will also consider the objection raised by the decree holder that the application under Rule 58 of Order XXI of the Code of Civil Procedure was unnecessarily and designedly delayed. At any rate, E.A.No.1315 of 2010 should be considered before conducting sale. The court below has not disposed of E.A.No.1315 of 2010. Accordingly, the Original Petition is allowed. The Principal Sub Court, Kollam, shall dispose of E.A.No.1315 of 2010, as O.P.(C) NO.265 OF 2011 O :: 4 :: expeditiously as possible. The sale shall not be effected till the disposal of E.A.No.1315 of 2010. It is undertaken by the petitioner that he will not ask for any adjournment of the proceedings in E.A.No.1315 of 2010. The petitioner also submitted that any such request need not be entertained. (K.T.SANKARAN) Judge ahz/