IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 WP(C).No. 4784 of 2008(T) ------------------------- AGAINST THE ORDER IN EP.127/00 IN OS.465/1994 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONERS: ------------ 1. K.R.SREENIVASAN, S/O.LATE RUGMINI, NOW RESIDING AT 34B, SALDANA ROAD, POLLACHI. 2. R.LEELAVATHY, D/O.LATE RUGMINI 461, NILA APARTMENTS, KCP KALYANAMANDAPAM VISWANATHAPURAM, COIMBATORE-6. 3. R.SHANMUGHAVALLY, D/O.LATE RUGMINI, 62/129, GOVINDA RAJA CHETTIAR STORE, KIZHAPUDUR 1ST STREET, TRICHY-1. 4. R.NALINIDEVI, D/O.LATE RUGMINI, 62/129, GOVINDA RAJA CHETTIAR STORE, KIZHAPUDUR 1ST STREET, TRICHY-1. BY ADV. SRI.D.KRISHNA PRASAD RESPONDENTS: ------------- 1. M/S. SEUS BATTERIES (P) LTD., KOLLUPARAMBU, POLPULLY VILLAGE, VERKOLI POST, PALAKKAD DISTRICT. 2. THE FEDERAL BANK LTD., ALWAYE. 3. SUBRAMANIAN, S/O.PANGUNNI, MANIAYANCHERRY, THENARI, ELAPULLY PALAKKAD DISTRICT. R3 BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM R2 BY SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.RAMMOHAN.L. GOVERNMENT PLEADER, SMT.R.BINDU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.4784/2008 APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE DOCUMENT DATED 15.7.1985 BEARING NO.5209/1985 OF THE PALAKKAD SUB REGISTRY OFFICE, EXECUTED BY GOPALRAJ IN FAVOUR OF RUGMINI. EXT. P2: COPY OF E.A. NO.789 OF 2006 IN E.P. 127/2000 IN O.S.465/94 ON THE FILE OF THE SUB COURT, PALAKKAD FILED BY THE PETITIONERS. EXT. P3: COPY OF THE ORDER IN DATED 18.1.2007 IN E.A.NO.789/2006 IN E.P.NO.127/2000 IN O.S.NO.465/1994 ON THE FILE OF THE SUB COURT, PALAKKAD. EXT. P4: COPY OF THE ORDER IN DATED 18.1.2007 IN E.A.NO.788/2006 IN E.P.NO.127/2000 IN O.S.NO.465/1994 ON THE FILE OF THE SUB COURT, PALAKKAD. EXT. P5: COPY OF E.A.NO.175 OF 2007 E.A.NO.789/2006 IN E.P. NO.127 OF 2000 IN O.S.NO.465/94 ON THE FILE OF THE SUB COURT, PALAKKAD FILED BY THE PETITIONERS, DATED 18.2.2007. EXT. P5(A): COPY OF AFFIDAVIT DATED 18.2.2007 FILED BY THE PETITIONERS. /TRUE COPY/ P.A. TO JUDGE JP M.N.KRISHNAN, J. ------------------------------------------- W.P.(C).No.4784 of 2008 ------------------------------------------- Dated this the 6th day of March, 2008 JUDGMENT This writ petition is preferred with a prayer to direct the executing court to consider Ext.P5 application at an early date and further declare that the proceedings culminating in the decree is vitiated by fraud and other consequential reliefs. 2. The writ petitioners before me are strangers to the suit. It is their contention that the property claimed by them belonged to their predecessor and the judgment debtor did not have any right to mortgage the property or deal with the property and therefore, the sale of the property pursuant to the decree is invalid and delivery cannot be effected. On the other hand, the counsel for the auction purchaser and the learned counsel for the bank would content that these are only contentions raised for the purpose of protracting the matter and therefore, the petitions has to be summarily dismissed. 3. The petitioners herein filed E.A.No.788/06 and E.A.No.789/06. That is one to set aside the sale and the other is WPC4784/2008 2 to stay confirmation of the sale. The learned Subordinate Judge dismissed both the applications for non taking of steps. I am informed that Civil Miscellaneous Appeals are filed against those orders before the District Judge, Palakkad and they are pending. 4. I am not going into the merits and demerits at this point of time, for the reason, I feel a better compact consolidated application is necessary for considering the grievance of the writ petitioners. The learned counsel for the writ petitioners also would submit that it requires some more averments and details and also additional prayers. Under such circumstances, I feel an opportunity can be given to the writ petitioners to file a fresh consolidated application with relevant pleadings and prayers within a period of one week from today and after issuance of notice and hearing all concerned the executing court can dispose of the matter if possible before the court closes for the summer holidays. Since an opportunity is given enabling the petitioners to file an application, I direct the court below not to effect delivery of the property till the disposal of that application. In case it is not filed, it can proceed with the matter after a period of ten days. I make it very clear that I am not expressing WPC4784/2008 3 anything on the merits or demerits of the contentions of any of the parties and all the parties are at liberty to raise contentions which are legally sustainable and they want to raise. I also make it clear that it is the paramount duty of the petitioner to prosecute the matter properly. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE csl