IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 OP(C).NO. 3350 OF 2011(O) ---------------------------------------- AGAINST THE ORDER IN EP.73/2001 IN OS.37/1999 OF SUB COURT, KOTTARAKKARA PETITIONER/PETITIONER: -------------------------------------- SHEEJA, D/O.ABDUL RAHMAN, PALLIVADAKKETHIL VEETTIL,ATTORKONATHU MURI, VELLINALLOOR VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.P.KRISHNA KUMAR (ALAPPUZHA) RESPONDENT(S): RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTOR: ----------------------------------------------------------------------------- 1. MOHAMMED ABDUL KHADER, PULIYANKODU VEEDU, MANIKKAN MURI, PULLAPPARE VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM DIST., PIN-695 541. 2. HASHEEM, S/O.ABDUL KAREEM, P.V.HOUSE, ATTORKONAM MURI, VELLINALLOOR VILLAGE, KOLLAM DISTRICT-691 001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.3350 OF 2011 APPENDIX PETITIONER(S)' EXHIBITS: EXT.P1 TRUE COPY OF THE SALE DEED DATED 29/03/07 OF THE PETITIONER. EXT.P2 TRUE COPY OF THE SALE DEED DATED 23/08/99 WHICH IS THE PRIOR TITLE DEED OF THE PETITIONER. EXT.P3 TRUE COPY OF THE APPLICATION DATED 24/09/07 FOR SETTING ASIDE THE SALE. EXT.P4 TRUE COPY OF THE ORDER DATED 06/08/2010 OF THE SUB COURT, KOTTARAKKARA, DISMISSING THE APPLICATION FOR SETTING ASIDE THE SALE. EXT.P5 TRUE COPY OF THE ORDER DATED 16/03/2011 OF HON'BLE HIGH COURT OF KERALA. EXT.P6 TRUE COPY OF THE B DIARY OF THE DISTRICT COURT, KOLLAM WITH RESPECT TO THE SAID APPEAL. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. To Judge THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3350 of 2011 ==================================== Dated this the 18th day of October, 2011 J U D G M E N T Petitioner filed an application under Rule 90 of Order XXI of the Code of Civil procedure (for short, “the Code”) in E.P. No.73 of 2001 in O.S. No.37 of 1999 of the court of learned Sub Judge, Kottarakkara. According to the petitioner, though pending execution, at a time when there was no attachment in force she purchased the property for valid consideration as per sale deed No.506 of 2007 dated 29.03.2007. Based on that sale deed, petitioner moved the application to set aside the sale. That application was dismissed holding that petitioner is not a bona fide purchaser and that when the execution petition which was dismissed for default was restored the order of attachment stood revived. Petitioner challenged dismissal of the application under Rule 90 of Order XXI of the Code in A.S. No.105 of 2011 in the court of learned District Judge, Kollam with an application to condone the delay. Since the application to condone the delay is posted for return of notice on 25.10.2011 petitioner was not able to get an order of stay of execution. Grievance of petitioner is that the property is ordered to be delivered to the first respondent on O.P(C) No.3350 of 2011 -: 2 :- 20.10.2011. Hence this Original Petition seeking stay of delivery proceedings until A.S. No.105 of 2011 is disposed of by the learned District Judge. 2. Learned counsel submitted that execution petition is posted for delivery of the property on 20.10.2011 even before the date fixed for appearance of the first respondent on the application to condone the delay in filing A.S.No.105 of 2011. According to the learned counsel first respondent is evading service of notice on that application. 3. It is pointed out that the application to condone delay is posted for appearance of 1st respondent on 25.10.2011 while delivery of property is ordered to be effected on 20.10.2011. Having regard to the circumstances stated by petitioner, I am inclined to direct that delivery proceedings shall stand in abeyance until 31.10.2011 or till learned District Judge passes orders on the application for stay filed in A.S. No.105 of 2011 whichever is earlier. Resultantly, this Original Petition is disposed of directing that delivery proceedings in E.P. No.73 of 2009 in O.S. No.37 of 1999 of the court of learned Sub Judge, Kottarakkara will stand in abeyance till 31.10.2011 or till learned District Judge, Kollam O.P(C) No.3350 of 2011 -: 3 :- passes orders on the application for stay filed in A.S. No.105 of 2011 whichever is earlier. If steps on the application to condone the delay is completed by 25.10.2011 it is open to the petitioner to request learned District Judge having regard to the urgency of the matter to pass appropriate orders on the application to condone delay and (in case the delay is condoned) the application for stay as early as possible. THOMAS P. JOSEPH, JUDGE. vsv