IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 WP(C).No. 2949 of 2009(A) ------------------------------------------ IA.306/2008 IN CMA.26/2008 of DISTRICT COURT, THALASSERY EP.227/2002 of PRL.S.C., THALASSERY .................... PETITIONERS: 1. NIRMALA PREMARAJAN, W/O. LATE PREMARAJAN DEVAKI NIVAS, PALLIKUNNU, KANNUR. 2. M.K. PREMITH, S/O. LATE PREMARAJAN, DEVAKI NIVAS, PALLIKUNNU, KANNUR. 3. M.K. NITHYA, D/O. LATE PREMARAJAN, DEVAKI NIVAS, PALLIKUNNU, KANNUR. BY ADV. SRI.P.K.RAVISANKAR RESPONDENTS: 1. CENTRAL BANK OF INDIA, REP.BY ITS MANAGER, KANNUR. 2. SHAHUL HAMEED, KARICHAN HOUSE, VENGARA AMSOM, MADAI DESOM, KANNUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.2949 of 2009 A -------------------------- JUDGMENT Heard counsel for the petitioners. 2. Petitioners are the judgment debtors in O.S. No.40/01 on the file of the Sub Court, Thalassery. Their property was brought to sale and sold in court auction. Before confirmation of sale, they filed a petition under Order XXI Rule 90 CPC seeking for an order setting aside the sale. It is submitted that in the meanwhile, a petition was filed by one Premkeerth, a stranger, advancing claim to the property contending that he has purchased the property in court auction in another case. The said petition was dismissed by the Sub Court and that was challenged by the said Premkeerth before this Court in W.P.(C)No.28296/05. This Court disposed of the said writ petition vide Exhibit P2 judgment directing the petitioner therein to pay the decree debt due to the respondent/decree holder, as the respondent Bank WPC 2949/09 2 was having a prior equitable mortgage in their favour in relation to the scheduled property. It was also directed that payment has to be made by the petitioner therein on the first posting date of the case in the month of August 2007, in which case, he would be entitled to get back the documents pertaining to the property either from the Bank or from court, whoever is the present custodian thereof and if the payment is not made within the time stipulated, the writ petition will stand dismissed and the impugned order will stand confirmed. 2. It is submitted by counsel for the petitioners that the court below took up the case on 4.9.2007 and made an endorsement on E.A.No. 619/06 filed by the petitioners under Order XXI Rule 90 CPC to the following effect: “High Court order not complied. Hence the above EA is closed.” WPC 2949/09 3 According to the counsel for the petitioners, what ought to have been closed for non payment of the decree debt was EA 204/05 filed by the stranger, who was the petitioner in Exhibit P2 writ petition and not E.A.No.619/06 that was to be closed. It appears that the counsel appearing for the parties, probably, did not point out such details and the court might have committed a mistake. Inasmuch as it is submitted by counsel for the petitioners that the order closing the EA, recorded on E.A.No.619/06 was assailed by the petitioners filing C.M.A.No. 26/08 before the District Court, Thalassery, it is only proper that the District Judge, Thalassery, who is dealing with the said C.M. Appeal is directed to dispose of the said C.M. Appeal itself restoring E.A.No.619/06 back to file, provided, as is submitted, it is by a mistake that instead of recording closing of the EA on E.A. No.204/05, the execution court was recording it mistakenly on E.A.No.619/06. WPC 2949/09 4 3. The present grievance of the petitioners is that the District Court is not passing any orders on I.A.No.306/08 filed in the said C.M. Appeal staying the delivery of the property sold in execution, to the auction purchaser. 4. I direct the District Judge, Thalassery to expedite the proceedings in C.M.A.No.26/08 and pass appropriate orders on the C.M. Appeal positively within two weeks from the date of production of a copy of this judgment before him by the counsel for the petitioners. It is submitted that the District Judge has not taken charge at Thalassery. If the District Judge has not taken charge, then the Judge, who holds charge of the District Judge, shall pass appropriate orders disposing of C.M.A. No.26/08 within the said two weeks, as the matter is urgent and by reason of the execution court committing a mistake, the parties should not be harassed. I further order that delivery of the property sold in favour of the auction purchaser WPC 2949/09 5 shall stand stayed till 18.2.2009 or till the District Judge passes appropriate orders/judgment in C.M.A.No.26/08, whichever event happens earlier. Petitioners are directed to produce a copy of this judgment in the court below forthwith. The writ petition is disposed of with the above directions. Issue copy of this judgment to the counsel for the petitioners urgently. 29th January, 2009 (K.P.Balachandran, Judge) tkv