IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 WP(C).No. 9606 of 2009(U) --------------------------------------------- PETITIONER(S): ----------------------- LALITHA S., D/O. OF SARASWATHIYAMMA, AGED 48, UMA NIVAS, THAMARAKULAM, KOLLAM 691 001 NOW RESIDING AT - TC 42/928/(8), KRISHNA KRIPA, ASHAN NAGAR, THIRUVANANTHAPURAM - 695 008 BY ADV. SRI.P.R.PADMANABHAN NAIR RESPONDENT(S): ------------------------- 1. THE RECOVERY OFFICER, DEBTS RECOVERY TRIBUNAL (KERALA AND LAKSHADWEEP), 8TH FLOOR, KSHB BUILDING, PANAMPILLY NAGAR, KOCHI - 36. 2. THE DEBT RECOVERY TRIBUNAL (KERALA AND LAKSHADWEEP), 8TH FLOOR, KSHB BUILDING, PANAMPILLY NAGAR, KOCHI - 36. 3. THE INDIAN OVERSEAS BANK, MUSALIAR BUILDING, CHINNAKKADA, KOLLAM. 4. M/S.TRANSWORLD CASHEW TRADERS, KOLLAM. R3 BY STANDING COUNSEL SRI.P.B.SURESH KUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 9606 OF 2009 U -------------------------------------- Dated this the 26th March, 2009 JUDGMENT Petitioner challenges Ext.P6 in respect of item No.1 of the properties. A direction is sought not to proceed against item No.1 property. Briefly put, the case of the petitioner is as follows: Petitioner became absolute owner of 10.5 cents of land under Ext.P1 Will executed by her grandmother. She died in 1979. According to petitioner, she was remitting the tax. The Will has become effective upon the death of her grandmother. There was a sale proclamation issued by the first respondent as Ext.P6. It is stated therein that item No.1 is the property covered by the Will. Ext.P7 is the proclamation in the newspaper. It has come to the knowledge of the petitioner that the third respondent obtained Recovery Certificate from the second respondent for recovering amount from the fourth respondent. It is also stated that there was a case set up of a WPC.9606/09 U 2 simple mortgage, and that actually there was no mortgage. It is stated that the petitioner who is the owner of the land, is never impleaded in any case. It is further stated that the petitioner has submitted Ext.P8 claim and it is pending and the petitioner has raised several contentions. But, the auction is proposed to be carried out on 27.3.2009. Hence the Writ Petition. 2. I heard the learned counsel for the petitioner and the learned counsel appearing on behalf of the third respondent Bank. Learned counsel for the Bank points out that the petitioner had filed a Claim Petition earlier and that was rejected. Against the same, the petitioner has filed W.P.(C). No.11804/04. I got the records of the said case. I find that this Court relegated the petitioner to prefer Appeal before the Tribunal and this Court also granted stay till orders are passed by the Tribunal in respect of item No.1 property. There is no dispute that the petitioner did not take up the matter before the Tribunal. Therefore, it would appear that the order passed in the Claim Petition earlier by the writ petitioner has attained finality. No doubt, learned counsel for the petitioner points out that this WPC.9606/09 U 3 is a fresh proclamation and there is some illegality in the proclamation. He referred to Section 25 of the Debt Recovery Tribunal Act and pointed out that the recovery steps can be taken only against the property of the defendant. 3. I would think that, having regard to the earlier order in the Claim Petition which has become final, it may not be open to the petitioner to re-agitate the matter by merely stating that she has filed Ext.P8 claim petition. Petitioner has, of course, not specifically stated in the Writ Petition also that Claim Petition was filed and that it was rejected. No doubt, in the synopsis, the petitioner has referred to the quashing of the earlier Notification. Having regard to the circumstances of the case, without prejudice to any other right the petitioner has in law, the Writ Petition is dismissed. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge