IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 WP(C).No. 909 of 2008(Y) ---------------------------------- OS.919/1994 OF PRINCIPAL SUB COURT,ERNAKULAM ........................................ PETITIONER: ---------------- DINESH C.C.,AGED 49 YEARS, S/O. LATE CHANDRASEKHARAN NAIR LOTUS APARTMENTS,D.H.ROAD,ERNAKULAM. BY ADV. SRI. M.C. SEN (SR.) SRI.P.SANJAY SRI.A.PARVATHI MENON RESPONDENTS: --------------------- 1. VIJAYA HOME LOANS LTD.,HAVING ITS REGISTERED OFFICE AT G.V.S.COMPLEX, LIND FLOOR 329,10TH A MAIN BLOCK,J.NAGAR, BANGALORE 11. 2. FAIR GROWTH HOUSE FINANCE LTD HAVING ITS REGISTERED OFFICE AT G.V.S.COMPLEX, 10TH A MAIN BLOCK,I .NAGAR,BANGALORE II REPRESENTED BY ITS ASSISTANT GENERAL MANAGER POWER OF ATTORNEY HOLDER. 3. M/S.LOTUS CONSTRUCTIONS NO.38, IV TH FLOOR, GCDA COMMERCIAL COMPLEX, MARINE DRIVE, ERNAKULAM COCHIN 682 031,REPRESENTED BY ITS MANAGING PARTNER MR. T.P. MURALEEDHARAN AGED ABOUT 50 YAS,S/O. LATE M.NARAYANA MENON, NO.31/224A, PUSHPANJALI, VYTTILA, COCHIN 682 019. 4. SRI.IBRAHIMKUTTY, AGED 44 YEAS, S/O. LATE HANAB P.C.,MOHAMMED, MAKHRAYIL HOUSE OLD ST. AUGUSTIN ROAD, PULLEPPADY, COCHIN 682 035. 5. MRS. L.SREEDEVI, W/O. LATE P.N.PILLAI NO.5, HIG PANAMPILLU NAGAR, COHIN. WP(C) NO: 909/2008 6. MRS.USHA PILLAI, D/O. LATE P.N.PILLAI NO.5, HIG PANAMPILLU NAGAR, COHIN. 7. SRI.K.P.BASHEER,S/O. SRI.C.K.PAREEKUTTY KALPPATH HOUSE, EDAPPALLY COCHIN 24. 8. SRI.C.C.ZUBAIR,S/O.MARIKKAR KOCHUPARAMBIL HOUSE,EDAPPALLY COCHIN 682 024. 9. SRI.M.JOSEPH PUDUSSERY,AGE NOT KNOWN S/O. LATE ITTIYAVIRA, PUTHUSSERY HOUSE EDAPPALLY COCHIN 682 024. R1 BY ADV. SRI.S.R.DAYANANDA PRABHU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 909/2008 G APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE ORDER IN EA NO. 557/2006 DT. 26/6/2006, SUB COURT, ERNAKULAM. EXT.P2. COPY OF THE NOTICE OF THE HONOURABLE SUB COURT, ERNAKULAM. RESPONDENT'S EXHIBITS NIL. True copy tga M.N.KRISHNAN, J ===================== W.P.(C) No.909 OF 2008 ===================== Dated this the 29th day of January 2008 JUDGMENT This writ petition is preferred with a prayer to quash Ext.P2 notice since it is in violation of Order XXI Rule 54 and Order XXI Rule 66 C.P.C and to stay the auction pursuant to Ext.P2 till the appeal filed against the judgment and decree in O.S.No.919 of 1994 is disposed of. 2. The brief facts necessary for the disposal of the writ petition are stated as follows: The petitioner is an occupant and purchaser of an Apartment No.6A, more described in Ext.P2 as item No.2. The 3rd respondent borrowed amount from the 2nd respondent for the purpose of constructing flats mortgaging the property and on account of default, a suit O.S.No.919 of 1994 was filed, which was decreed and during the pendency of the suit, the 2nd respondent had merged with the first respondent and thereby they have become the decree holders. The present writ petitioner is the purchaser of 1/28th share. When the property was attempted to be proceeded against a suit was filed to declare that the judgment and decree in O.S.No.919/1994 is not binding on them by the predecessors in interest, but WP(C) 909/2008 -:2:- it ended in dismissal. Subsequently execution applications were filed and another suit O.S.No.470 of 2003 was filed, which also met with the dismissal and against that decision with a petition to condone the delay the petitioner herein has preferred A.S.No.18 of 2008 before the District Court, Ernakulam and also had filed an application for injunction restraining the decree holder from proceeding with the sale of the property. Firstly an appeal is pending which has not come into file on account of the non-disposal of the delay condontation application. Secondly what the decree holder wants is to proceed with the mortgaged property. It is also submitted that the interest awarded in the decree is 25% which is exorbitant. It is a matter that has become conclusive on account of various decisions rendered by the competent courts. The only hope left for the petitioner is A.S.No.18/2008. Therefore I do not want to throw him away on the threshold itself. So I am inclined to pass an order whereby some breathing time is given to him and dispose of the writ petition as follows: (1)The petitioner herein is directed to deposit an amount of Rs.3 lakhs(rupees three lakhs only) before the executing court within 3 weeks from today.(2) The District Court where the appeal is pending is directed to take emergent steps so as to finish service of notice on the delay condonation application and consider and dispose of the same within six weeks from today and if it WP(C) 909/2008 -:3:- condones the delay consider the injunction application and pass appropriate orders. (3) In order to enable the petitioner to deposit the amount and in order to enable the District Judge to dispose of the matter, the sale with respect to Apartment No.6A which is specifically described as item No.2 in the schedule be deferred by a period of two months from today. (4) If there is default on deposit of the amount, then naturally on the expiration of the period fixed, the decree holder will be entitled to proceed in accordance with law. (5) The District Court, where the injunction application is pending can order regarding disbursement of the amount. M.N.KRISHNAN, JUDGE Cdp/-