IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 OP(C).No. 2318 of 2011(O) ------------------------- E.A.667/2010 IN EP.321/2004 IN OS.587/1993 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER: ---------------------- USHAMANI S., D/O.SARASAMMA, AGED 47 YEARS, MADHAVA VILASAM, CHIRAKKARA, EDAVATTAM, KALLUVATHUKKAL VILLAGE. BY ADVS. SRI.R.ANILKUMAR, SRI.SHINDO VARGHESE. RESPONDENT(S): ---------------------------- 1. ABDUL HAMEED KHOORY UAE NATIONAL, A1 AFAN ESTABLISHMENT P.O. BOX NO.3773,DUBAI,UAE,REP. BY HIS POWER OF ATTORNEY HOLDER SUKUMARAN JAYAPRAKASH, CHIEF ACCOUNTANT OF KHOORY ENTERPRISES,GROUPS OF COMPANIES,P.O.BOX NO.3773,DUBAI AND A PERMANENT RESIDENT OF GANACHAVILAKAM (H),CHILAKKOOR, VARKALA P.O.,THIRUVANANTHAPURAM,PIN-695141. 2. CHANDRABABU B., AGED 55, RESIDING AT MADHAVA VILASAM, CHIRAKKARA CHERRY, KALLUVATHUKKAL FROM BHARATHI BHAVAN, MUNDAYIL, VARKALA-695 141. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2318/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE DOCUMENT NO.2296 DTD. 5TH JULY 1988. P2: COPY OF THE ORDER DISMISSING THE EA NO.667/2010 IN E.P.NO.321/04 IN O.S.NO.587 OF 1993 PASSED BY THE SUB COURT, KOLLAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2318 of 2011 ==================================== Dated this the 19th day of July, 2011 J U D G M E N T Petitioner is the claim petitioner in E.A. No.667 of 2010 in E.P. No.321 of 2004 in O.S. No.587 of 1993 of the court of learned Principal Sub Judge, Kollam. First respondent obtained a decree against the second respondent and brought the property for sale. At that stage petitioner moved E.A. No.667 of 2010 under Order XXI Rule 58 of the Code of Civil Procedure (for short, “the Code”). Claim was entertained and it was posted for enquiry. On March 23, 2011 the claim petition was dismissed for default. That order is under challenge. Learned counsel contended that petitioner has half right over the property comprised in Sy. No.6914/139 as per sale deed No.2296/1988 of SRO, Chathannoor and is a bona fide purchaser. 2. The claim was entertained under Order XXI Rule 58(1) of the Code and thereafter it was dismissed for default without adjudication. Therefore the remedy available to the petitioner was to seek restoration of E.A. No.667 of 2010 before the executing court as provided under law. Petitioner cannot O.P(C) No.2318 of 2011 -: 2 :- challenge the order in a petition under Article 227 of the Constitution circumventing the statutory remedy. Original Petition is disposed of as above. THOMAS P. JOSEPH, JUDGE. vsv