IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 WP(C).No. 9795 of 2008(N) ------------------------- OS.919/1994 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER: K.S.JOSHY, AGED 54, S/O. SANKUNNI, RESIDING AT 2C, LOTUS APARTMENTS, DARBAR HALL ROAD, ERNAKULAM. BY ADV. SRI.K.P.SREEKUMAR RESPONDENTS: 1. VIJAYA HOME LOANS LIMITED, (FORMERLY KNOWN AS FAIR GROWTH HOME FINANCE LTD), HAVING ITS REGISTERED OFFICE AT GVS COMPLEX, 2ND FLOOR, NO.329,10TH MAIN, 3RD BLOCK,JAYANAGAR BANGLORE, REPRESENTED BY ITS EXECUTIVE DIRECOTR, MR.S.JAGADISH PAI. 2. LOTUS CONSTRUCTION, 4TH FLOOR, GCDA COMPLEX,MARINE DRIVE, ERNAKULAM,COCHIN-682 031, REP. BY ITS MANAGING PARTNER SRI.MURALEEDHARAN. 3. T.P.MURALEEDHARAN, AGED 54 YEARS, S/O.LATE NARAYANA MENON, NO.31/224A, PUSHPANJALI, VYTTILA,KOCHI-682 019. 4. IBRAHIMKUTTY, AGED 56 YEARS, S/O.LATE JANAB P.C., MUHAMMED, MAKHARIYOL HOUSE, OLD ST.AUGUSTINE ROAD, PULLEPPADY,KOCHI-682 035. WP(C).No. 9795 / 2008 5. USHA PILLAI, AGED NOT KNOWN, D/O.LATE P.M.PILLAI, NO.5,H.I.G. PANAMPILLY NAGAR, KOCHI. 6. K.P.BASHEER, AGED NO KNOWN, S/O.K.C.PAREEKUTTY, KALAPPATH HOUSE, EDAPPALLY,KOCHI-682 024. 7. C.M.SUBIRE, AGED NO KNOWN, S/O.MARIKKAR, KOCHUPARAMBIL HOUSE, EDAPPALLY,KOCHI-682 024. 8. DR.M.C.AYYAPPAN PILLAI, S/O.CHITHAMBARAN PILLAI,RESIDENT LOTUS APARTMENT OWNERS ASSOCIATION,LOTUS APARTMENTS, D.H.ROAD, ERNAKULAM. BY ADV. SRI.S.R.DAYANANDA PRABHU - R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 9795 OF 2008 ............................................ DATED THIS THE 30th DAY OF JUNE, 2008 JUDGMENT Petitioner is in possession of Apartment No.2C and Shop No.1. As per order dated 25.3.2008, petitioner was directed to deposit Rs.3,00,000/- before the executing court. It is submitted by learned counsel appearing for petitioner that the amount was deposited. Learned counsel appearing for respondent also admitted that the amount was deposited. This petition is filed challenging Ext.P9 order, whereunder E.A.31 of 2008 filed by the petitioner to review the order posting the execution petition for sale was dismissed by learned Sub Judge. Learned Sub Judge, under Ext.P9, dismissed the petition, holding that petitioner is only a tranferee subsequent to the institution of the suit and he could only claim under the judgment debtor and O.S.120 of 2003 filed by the petitioner disputing the liability as well as the petition filed under Section 47 of the Code of Civil Procedure were dismissed. 2. Learned counsel appearing for petitioner submitted that O.S.120 of 2003 was rejected for non payment of court fee and the petition filed under Section 47 of Code of Civil WP(C) 9795/2008 2 procedure was by him in his capacity as the Secretary and therefore Ext.P9 order is to be quashed. 3. Learned counsel appearing for first respondent pointed out that there was a settlement in respect of all the claim petitions and petitioner was not prepared to settle the dispute and it is thereafter the petition filed under Section 47 of the Code was dismissed and it was filed by the petitioner personally and not in his representative capacity. 4. As rightly pointed out by learned counsel appearing for first respondent, the petition under Section 47 of Code of Civil Procedure was not filed by the petitioner as Secretary. He was only described as the Secretary. Therefore the order in the petition filed under Section 47 of the Code, disputing the right of the decree holder to proceed against the building has become final. In view of that order, petitioner is not entitled to challenge the right of the decree holder to proceed against the building or the order of the executing court to proceed against the building. 5. But being a transferee of the judgment debtor, who stepped into the shoes of the judgment debtor, to that extent, as representative of the judgment debtor, petitioner is entitled to agitate whatever the judgment debtor could agitate in the WP(C) 9795/2008 3 execution petition. Learned Sub Judge was not therefore justified in not permitting petitioner to raise the objection which is available to the judgment debtor. But in view of the order passed by executing court, dismissing the petition under Section 47 of the Code as well as dismissal of O.S.120 of 2003, in answer to Rule 66 notice, petitioner is not entitled to dispute the executability of the decree. To that extent, Ext.P9 order is quashed. Executing court to permit petitioner to file objection to Rule 66 notice. 6. Learned counsel appearing for first respondent sought permission to withdraw the amount deposited by petitioner before the executing court, pursuant to the order of this court. Learned counsel appearing for petitioner opposed the prayer. As it is found that petitioner is the representative of the judgment debtor, and permitted to raise the contentions available to the judgment debtor, decree holder is permitted to withdraw the amount deposited by the petitioner before the executing court. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-