IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 OP(C).No. 2226 of 2011(O) ------------------------- OS.621/2003 of PRL.MUNSIFF COURT, PALAKKAD .................... PETITIONER :- ----------------------- BRD SECURITIES LTD., KUNNAMKULAM VILLAGE TALAPPILLY TALUK, THRISSUR, REPRESENTED BY SEEMA RAFEEQUE, W/O.M.H. MUHAMMED RAFEEQUE, LEGAL MANAGER, BRD SECURITIES LTD., KUNNAMKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW RESPONDENT(S) :- -------------------------- 1. SANKARAN, S/O. NADARAJ THARAKAN, NADARAJ NIVAS, BHAGAVATHI STREET, KIZHAKKUMPURAM, PALAKKAD -1 VILLAGE, PALAKKAD TALUK AND DISTRICT – 678 001. 2. BALASUBRAMANIAN, 31/563, THARAKAN LANE, PALAKKAD -1 VILLAGE, PALAKKAD TALUK AND DISTRICT – 678 001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt OP(C).No.2226 OF 2011 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the petition E.P.No.344 of 2009 in O.S.No.621 of 2003 befor the Munsiff Court, Palakkad. Ext.P2 :- Copy of the draft sale proclamation. Ext.P3 :- Copy of the order dated 23.3.2011 in E.P.No.344 of 2009 in O.S.No.621 of 2003 before the Munsiff Court, Palakkad. Respondent's Exhibits :- NIL. //True Copy// P.A. to Judge THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ O.P.(C). No.2226 of 2011 ~~~~~~~~~~~~~~~~~ Dated this the 13th day of July 2011 J U D G M E N T Notice to respondents 1 and 2 in this proceeding is dispensed with since Ext.P3 order, which is under challenge shows that they remained absent and were set ex-parte. 2. Ext.P3, order dated March 23, 2011 dismissing E.P.No.344 of 2009 in O.S.No.621 of 2003 of the court of learned Principal Munsiff, Palakkad is under challenge at the instance of petitioner/Decree Holder. 3. Petitioner obtained a decree for money based on a demand promissory note. Pending suit, property of respondents was attached. The decree was passed on 30.1.2007. In E.P.No.344 of 2009 petitioner produced draft sale proclamation and encumbrance certificate on 23.6.2010 concerning item No.1 in the first schedule. When that property was proceeded against for sale, one Suresh O.P.(C). No.2226 of 2011 -: 2 :- filed E.A.No.374 of 2010 under Order XXI, Rule 58 of the Code of Civil Procedure. Thereon, petitioner wanted to proceed against item No.2 in the schedule. Its upset price was fixed as `1,00,000/- as per order dated 5.11.2001. But the Ameen reported that the said item is not identifiable. The executing court dismissed the execution petition by Ext.P3, order observing that no steps are taken and that the property is not proclaimed. Learned counsel submitted that in view of the report of the Ameen, petitioner wanted to proceed against item No.1 of the first schedule after the claim petition was disposed of. It is also submitted that petitioner wanted to take steps to identify item 2 of the schedule and bring the said property for sale. 4. On going through Ext.P3 order and hearing learned counsel I am inclined to think petitioner has to be given an opportunity to proceed with execution. Resultantly this original petition is allowed. Ext.P3, order dated March 23, 2011 dismissing E.P.No.344 O.P.(C). No.2226 of 2011 -: 3 :- of 2009 in O.S.No.621 of 2003 of the court of learned Principal Munsiff, Palakkad is set aside. Executing court is directed to restore E.P.No.344 of 2009 to file and proceed with that execution petition after giving petitioner opportunity to take necessary steps in the matter. Petitioner shall appear in the executing court on August 10, 2011. THOMAS P. JOSEPH, JUDGE. Jvt